5 ms·

I found some rather troubling aspects within the ruling itself: 1. Retroactive application of arm's length principle The Court's reliance on the arm's length

by gzer0 2y ago

I found some rather troubling aspects within the ruling itself: 1. Retroactive application of arm's length principle The Court's reliance on the arm's length principle, despite acknowledging it's not required by EU law, is problematic. As stated in paragraph 124: > "Article 107(1) TFEU gives the Commission the right to check whether the level of profit allocated to such branches... corresponds to the level of profit that would have been obtained if that activity had been carried on under market conditions." This retroactive application of a principle not explicitly required by law at the time of the tax rulings is unfair and creates legal uncertainty for businesses. 2. Burden of proof The Court's criticism of the General Court's approach to evidence, as noted in paragraph 245, lowers the burden of proof for the Commission in State aid cases: > "As the Commission stated in recital 441 of the decision at issue, its approach is based on an infringement of Article 107(1) TFEU, which has been part of Ireland's legal order since its accession in 1973, and not on a failure to have regard to the framework defined at OECD level." This shift unfairly advantages the Commission in future cases and will lead to increased challenges to legitimate tax arrangements. But, overall, yes, I get the concerns about legal certainty and applying rules retroactively. They're valid points. But when I weigh everything, I still think this ruling does more good than harm. It's a big step towards fairer taxes and more transparency in how big companies operate. Yes, it might ruffle some feathers in the short term. But in the long run, it's setting us up for a tax system where everyone plays by the same rules – whether you're a small local business or a tech giant.

skummetmaelk 2y ago
There's not much uncertainty for business really. If you're pulling the moves that Apple and other companies pull to "optimize tax", then you are with 100% certainty trying to game the system and violating the spirit of the law.
- yieldcrv 2y ago
  That doesnt mean regimes we respect should retroactively apply new rules in unpredictable ways
  - croes 2y ago
    It's not a new rule. They just found that Ireland's tax rules from 1991 and 2007 are illegal tax benefits according to the preexisting rule. Just because they took so long apply existing law doesn't make it retroactive.
    - imchillyb 2y ago
      While that sounds true, the EU approved Ireland's 1% tax rate. This is a retroactive ruling. This is playing favorites, the opposite game.
      - croes 2y ago
        An approval doesn't mean it's legal. When they finally looked into it they found it's violating existing laws. Same with the data contracts with the US, Safe Harbor, Privacy Shield etc. All approved, all later on found a violation of EU law. That's not retroactive just slow.
  - skummetmaelk 2y ago
    Even if it was retroactive, which it is not, being punished for premeditated tax avoidance can hardly be called unpredictable. The central difference of opinion is of course whether outright gaming the system is acceptable regardless of the written rules being followed to the letter.
- Nasrudith 2y ago
  [flagged]
  - joe_the_user 2y ago
    It is 100% untrue that "the spirit of the law" isn't factor in the US judicial system. The main way it enters explicitly is through courts taking into account the intent of the legislature. The most notable example of this was the way US courts interpreted the 14th amendment, which was far from it's literal statement.
  - oblio 2y ago
    > The spirit of the law is a lot like hate speech in that it is not recognized as a thing by the legal system of the United States This is about the EU which uses a completely different legal system than the US so any US legal reference is basically useless.
izacus 2y ago
I find it interesting how in american corpspeak "uncertanty" pretty much always means "our lawyers can't find a way to avoid this law without getting caught" ^^
- linotype 2y ago
  EU companies dodge and bend rules all the time. See: VW, AirBus, etc.
  - Y-bar 2y ago
    And they do get their day in the courts as well: From _today_ in a judgement pretty much identical to the one on Apple/Ireland: > Commission orders recovery of around €14 million in incompatible German State aid from Frankfurt-Hahn airport and Ryanair https://ec.europa.eu/commission/presscorner/detail/en/ip_24_4588 https://ec.europa.eu/commission/presscorner/detail/en/ip_24_... --- > On Friday, January 31, 2020, courts in France, the United Kingdom, and the United States approved analogous versions of a deferred prosecution agreement (DPA) between prosecutors and Airbus that include a combined fine of $3.96 billion for the aircraft manufacturer. The resolution ends multi-year investigations by the French National Financial Prosecutor’s Office (Parquet National Financier or PNF), the U.K. Serious Fraud Office (SFO), and the U.S. Department of Justice (DOJ) https://www.ropesgray.com/en/insights/alerts/2020/01/four-years-and-almost-4-billion-airbus-corruption-investigations-end-with-sky-high-fine https://www.ropesgray.com/en/insights/alerts/2020/01/four-ye... > Antitrust: Commission fines car manufacturers €875 million for restricting competition in emission cleaning for new diesel passenger cars https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3581 https://ec.europa.eu/commission/presscorner/detail/en/ip_21_...
  - scott_w 2y ago
    And it's wrong when they do it, too.
    - drstewart 2y ago
      So we should correctly call it "european corpspeak"
gadders 2y ago
>>Yes, it might ruffle some feathers in the short term. But in the long run, it's setting us up for a tax system where everyone plays by the same rules – whether you're a small local business or a tech giant. Yeah, but that only ever ratchets in one direction. Putting everyone on the same rules won't reduce taxes for anyone.
freefaler 2y ago
I don't understand the ruling however, something doesn't make sense: - Apple goes to a country and makes a deal with that country - They pay the tax in the country and they comply with all the rules at that time in Ireland - After a few years the EU government says "hey, Ireland that's not a correct deal" - So they don't punish the Ireland government who didn't comply with EU regulation (as far as I understood) and retroactively charge the tax on Apple, who complied with all the regulation. Doesn't the burden of non-compliance be on the party that broke the EU rules and not the company who complied with all the rules? Several questions arise: - Was Apple breaking any rules in those years when they had the deal with the government? - How can any company be sure that if they comply with current tax laws they won't be back charged in the future? - Isn't that a bad precedent of "we change the rules now", but will punish you for you past behavior for non-complying with the new rules? (e.g. why don't charge back the increase in taxes for this year for the past 3 years) These are not related to the ethical/moral or fairness evaluation of the situation. It's unfair to charge different taxes at all, flat taxes should be the norm, not charge more if you earn more. However the legal logic doesn't seem to be there. Can you help me understand the situation?
- kwhitefoot 2y ago
  They aren't being punished, they are simply being told to pay the tax that Ireland illegally said they didn't have to pay.
  - noirbot 2y ago
    That's a distinction without a difference. Presumably, if Ireland hadn't offered this deal, Apple would have done their business somewhere else. Sure, they may have paid some other country more taxes, but potentially less taxes than what they now owe Ireland. Apple isn't blameless here, but it definitely kinda feels like they got a little bit defrauded by the Irish government who now essentially is getting rewarded with billions of dollars for their illegal conduct.
    - kwhitefoot 2y ago
      Apple is a lot worse than merely 'isn't blameless'. They knew perfectly well what they were getting into and I'm confident that the current judgment would have been a scenario that their lawyers would have explored. I'm sure that if Apple thinks that they have been hard done by that they could sue the Irish government for damages in the Irish courts.
immibis 2y ago
> This retroactive application of a principle not explicitly required by law at the time of the tax rulings is unfair and creates legal uncertainty for businesses. I don't see any problem with this. They knew they were gaming the system, and knew they could get in trouble for it. The law is NOT a computer program where all outputs can be fully predicted from the source code - it also takes common sense into account. We should just pass a law that says gaming the system is illegal, then we won't need to find silly justifications against people who game the system, but silly justifications work too.
- Nasrudith 2y ago
  I expect to see very abusive definitions of 'gaming the system' under such a law such that anything which is the slightest inconvenience is viewed as gaming the system. Just like how common sense isn't common.
  - 082349872349872 2y ago
    In support of GP, my experience with judges and lawyers says the law* is much less fond of "rules lawyering" than engineers typically believe. * to be fair, this varies with legal system: my personal opinion is that one finds significantly more successful rules lawyering attempts in common law systems than in code systems.
bjornsing 2y ago
Unfair and uncertain taxation is a European specialty.
- timomaxgalvin 2y ago
  Taxation in Europe is much simpler and more certain than the US.
  - bjornsing 2y ago
    Simple and fair are not the same thing. Also, wait until you’ve issued stock based compensation to employees in a few jurisdictions before you make any certain claims.
- Wytwwww 2y ago
  Well after this ruling it's finally "fair" (well kind of) just still somewhat uncertain.
bjornsing 2y ago
> Yes, it might ruffle some feathers in the short term. But in the long run, it's setting us up for a tax system where everyone plays by the same rules – whether you're a small local business or a tech giant. That would be a truly wonderful thing to behold.

by gzer0 2y ago

skummetmaelk 2y ago

There's not much uncertainty for business really. If you're pulling the moves that Apple and other companies pull to "optimize tax", then you are with 100% certainty trying to game the system and violating the spirit of the law.

yieldcrv 2y ago
That doesnt mean regimes we respect should retroactively apply new rules in unpredictable ways
- croes 2y ago
  It's not a new rule. They just found that Ireland's tax rules from 1991 and 2007 are illegal tax benefits according to the preexisting rule. Just because they took so long apply existing law doesn't make it retroactive.
  - imchillyb 2y ago
    While that sounds true, the EU approved Ireland's 1% tax rate. This is a retroactive ruling. This is playing favorites, the opposite game.
    - croes 2y ago
      An approval doesn't mean it's legal. When they finally looked into it they found it's violating existing laws. Same with the data contracts with the US, Safe Harbor, Privacy Shield etc. All approved, all later on found a violation of EU law. That's not retroactive just slow.
- skummetmaelk 2y ago
  Even if it was retroactive, which it is not, being punished for premeditated tax avoidance can hardly be called unpredictable. The central difference of opinion is of course whether outright gaming the system is acceptable regardless of the written rules being followed to the letter.
Nasrudith 2y ago
[flagged]
- joe_the_user 2y ago
  It is 100% untrue that "the spirit of the law" isn't factor in the US judicial system. The main way it enters explicitly is through courts taking into account the intent of the legislature. The most notable example of this was the way US courts interpreted the 14th amendment, which was far from it's literal statement.
- oblio 2y ago
  > The spirit of the law is a lot like hate speech in that it is not recognized as a thing by the legal system of the United States This is about the EU which uses a completely different legal system than the US so any US legal reference is basically useless.

izacus 2y ago

I find it interesting how in american corpspeak "uncertanty" pretty much always means "our lawyers can't find a way to avoid this law without getting caught" ^^

linotype 2y ago
EU companies dodge and bend rules all the time. See: VW, AirBus, etc.
- Y-bar 2y ago
  And they do get their day in the courts as well: From _today_ in a judgement pretty much identical to the one on Apple/Ireland: > Commission orders recovery of around €14 million in incompatible German State aid from Frankfurt-Hahn airport and Ryanair https://ec.europa.eu/commission/presscorner/detail/en/ip_24_4588 https://ec.europa.eu/commission/presscorner/detail/en/ip_24_... --- > On Friday, January 31, 2020, courts in France, the United Kingdom, and the United States approved analogous versions of a deferred prosecution agreement (DPA) between prosecutors and Airbus that include a combined fine of $3.96 billion for the aircraft manufacturer. The resolution ends multi-year investigations by the French National Financial Prosecutor’s Office (Parquet National Financier or PNF), the U.K. Serious Fraud Office (SFO), and the U.S. Department of Justice (DOJ) https://www.ropesgray.com/en/insights/alerts/2020/01/four-years-and-almost-4-billion-airbus-corruption-investigations-end-with-sky-high-fine https://www.ropesgray.com/en/insights/alerts/2020/01/four-ye... > Antitrust: Commission fines car manufacturers €875 million for restricting competition in emission cleaning for new diesel passenger cars https://ec.europa.eu/commission/presscorner/detail/en/ip_21_3581 https://ec.europa.eu/commission/presscorner/detail/en/ip_21_...
- scott_w 2y ago
  And it's wrong when they do it, too.
  - drstewart 2y ago
    So we should correctly call it "european corpspeak"

gadders 2y ago

>>Yes, it might ruffle some feathers in the short term. But in the long run, it's setting us up for a tax system where everyone plays by the same rules – whether you're a small local business or a tech giant. Yeah, but that only ever ratchets in one direction. Putting everyone on the same rules won't reduce taxes for anyone.

freefaler 2y ago

I don't understand the ruling however, something doesn't make sense: - Apple goes to a country and makes a deal with that country - They pay the tax in the country and they comply with all the rules at that time in Ireland - After a few years the EU government says "hey, Ireland that's not a correct deal" - So they don't punish the Ireland government who didn't comply with EU regulation (as far as I understood) and retroactively charge the tax on Apple, who complied with all the regulation. Doesn't the burden of non-compliance be on the party that broke the EU rules and not the company who complied with all the rules? Several questions arise: - Was Apple breaking any rules in those years when they had the deal with the government? - How can any company be sure that if they comply with current tax laws they won't be back charged in the future? - Isn't that a bad precedent of "we change the rules now", but will punish you for you past behavior for non-complying with the new rules? (e.g. why don't charge back the increase in taxes for this year for the past 3 years) These are not related to the ethical/moral or fairness evaluation of the situation. It's unfair to charge different taxes at all, flat taxes should be the norm, not charge more if you earn more. However the legal logic doesn't seem to be there. Can you help me understand the situation?

kwhitefoot 2y ago
They aren't being punished, they are simply being told to pay the tax that Ireland illegally said they didn't have to pay.
- noirbot 2y ago
  That's a distinction without a difference. Presumably, if Ireland hadn't offered this deal, Apple would have done their business somewhere else. Sure, they may have paid some other country more taxes, but potentially less taxes than what they now owe Ireland. Apple isn't blameless here, but it definitely kinda feels like they got a little bit defrauded by the Irish government who now essentially is getting rewarded with billions of dollars for their illegal conduct.
  - kwhitefoot 2y ago
    Apple is a lot worse than merely 'isn't blameless'. They knew perfectly well what they were getting into and I'm confident that the current judgment would have been a scenario that their lawyers would have explored. I'm sure that if Apple thinks that they have been hard done by that they could sue the Irish government for damages in the Irish courts.

immibis 2y ago

> This retroactive application of a principle not explicitly required by law at the time of the tax rulings is unfair and creates legal uncertainty for businesses. I don't see any problem with this. They knew they were gaming the system, and knew they could get in trouble for it. The law is NOT a computer program where all outputs can be fully predicted from the source code - it also takes common sense into account. We should just pass a law that says gaming the system is illegal, then we won't need to find silly justifications against people who game the system, but silly justifications work too.

Nasrudith 2y ago
I expect to see very abusive definitions of 'gaming the system' under such a law such that anything which is the slightest inconvenience is viewed as gaming the system. Just like how common sense isn't common.
- 082349872349872 2y ago
  In support of GP, my experience with judges and lawyers says the law* is much less fond of "rules lawyering" than engineers typically believe. * to be fair, this varies with legal system: my personal opinion is that one finds significantly more successful rules lawyering attempts in common law systems than in code systems.

bjornsing 2y ago

Unfair and uncertain taxation is a European specialty.

timomaxgalvin 2y ago
Taxation in Europe is much simpler and more certain than the US.
- bjornsing 2y ago
  Simple and fair are not the same thing. Also, wait until you’ve issued stock based compensation to employees in a few jurisdictions before you make any certain claims.
Wytwwww 2y ago
Well after this ruling it's finally "fair" (well kind of) just still somewhat uncertain.

bjornsing 2y ago

> Yes, it might ruffle some feathers in the short term. But in the long run, it's setting us up for a tax system where everyone plays by the same rules – whether you're a small local business or a tech giant. That would be a truly wonderful thing to behold.