When it comes to corporate policing, there are no greater hypocrites on the planet than the Americans.
This week, the European Commission’s competition arm hit Apple with a penalty of up to 13 billion euros (or close to A$20 billion) after finding the company had enjoyed decades of illegal state support from Ireland that distorted competition in Europe.
The huge bill for back-taxes — to which interest must be added — from 2003 to 2014, was at the high end of forecasts (which ranged as low as 1 billion euros, or A$1.47 billion). The EU investigation of Apple goes back to 2014, when the commission opened a formal examination into the company’s tax practices in Ireland and possible state aid to the company.
Ireland has long been using its billions in subsidies from the European Union to fund a tax haven-level corporate tax rate that has helped multinationals around the world to avoid their tax obligations. It’s certainly not alone in doing that — the Netherlands and Luxembourg are equally culpable — but it means that the rest of us have been helping to subsidise the Irish economy every time revenue earned in a country like Australia is sent back to Ireland to avoid tax. But Apple got a sweetheart deal far beyond the normal 12.5% Irish company tax rate.
According to the EC, while almost all profits recorded by two Apple subsidiaries in Ireland — which manages all its non-US sales — were internally attributed to a “head office”, the commission found such offices existed “only on paper” and could not have generated such profits. As a result, Ireland must now apply the 12.5% corporate tax rate on almost all profits attributed to the two subsidiaries. “This selective treatment allowed Apple to pay an effective corporate tax rate of 1 per cent on its European profits in 2003 down to 0.005 per cent in 2014,” the EC found, in a decision that will have major ramifications for multinational tax avoidance.
Apple and the Irish government have — surprise, surprise — repeatedly denied their tax deal is a form of state aid and have said they will appeal the decision to the European Court of Justice. Other European tax havens and multinationals will be cheering them on.
The US government is furious about the fine: it believes the Europeans are targeting Silicon Valley firms and engaging in overreach by pursuing tax that should be beyond the reach of European law. The US Treasury accused the European Commission of becoming a “supranational tax authority” that threatened international agreements on tax reform in its drive to stamp out aggressive avoidance (a drive that many other countries, including Australia, think the Americans are doing their best to stymie). And some US lawmakers want to see US laws that could enable punitive double taxation of European companies used in response.
[Rundle: Apple tax scandal reveals the utter chaos of total capitalism]
Except, American regulators and authorities have themselves been engaging in extraterritorial overreach for years. American authorities have prosecuted banks in Switzerland (for example, UBS) for facilitating tax avoidance by American citizens. Like Australia, the US has laws against bribery of foreign officials — but unlike here, the US aggressively pursues bribery claims, including of companies that aren’t based in the US but happen to operate there. Claims of foreign corrupt practices are routinely investigated against non-American companies, such as BHP Billiton and Siemens of Germany, litigated and settled with payments made to the US government, even if those companies have minimal involvement with the US and the alleged offences occurred outside the US. It even went after FIFA officials for that organisation’s rank corruption, extraditing officials from Switzerland.
Problem is, the Americans are so busy cleaning up other countries’ backyards, they don’t appear to have time to clean their own up. The US has numerous havens offering high levels of corporate opacity and banking secrecy, such as Delaware and Nevada, home of the Las Vegas casino industry, which handles and launders truly colossal volumes of money from the drug trade throughout the Americas.
Companies like Apple wouldn’t be resorting to special deals with tax havens like Ireland if they were prepared to send profits back to the United States, but they want to avoid paying the US company tax rate of 38.9% (don’t forget, we’re constantly told Australia’s rate of 30% is too high). Corporate America, especially big global multinationals (and especially the tech giants) are keeping over $2 trillion outside of the US and not returning the cash home to be taxed at 39%.
Apple, as perhaps the most successful of all US tech multinationals, keeps a reported US$200 billion or more offshore. Admittedly, some of this money makes its way back to the US: Apple’s cash makes up much of the US$270.6 billion Ireland has invested in US Treasury securities at the end of June, up $US52 billion in the year to June; Ireland is in the top five foreign holders of these securities. But that’s no substitute for Apple actually paying its tax obligations in the US.
When it comes to Apple’s tax problems, the usual US hypocrisy is evidently tinged with envy — envy that the Europeans have the gumption — and the legislative capacity — to insist that tax-dodging multinationals start paying their fair share — or at least 12.5%, which is what counts as fair in havens like Ireland.