Did Apple Pay Too Little Tax?

On 30 August 2016, Margrethe Vestager, the European Commissioner for Competition, ordered Ireland to recover €13 billion in illegal state aid (plus interest) that Ireland was alleged to have granted Apple over a decade from 2003. Within months of the ruling, both Tim Cook, CEO of Apple, and Enda Kenny, the Irish Prime Minister, appealed the Commission’s judgment to the European General Court in Luxembourg, the EU’s second highest court. In mid-July 2020, the General Court returned its verdict and annulled the Commission’s ruling giving Commissioner Vestager two months and 10 days to appeal. At the very last minute, the Commissioner announced that she would seek an appeal before the EU’s highest court, the Court of Justice of the European Union, citing “errors of law” committed by the lower court. No date has been set for the CJEU to decide on the merits of the appeal. The case explores these events from five analytical pillars: 1) the role of Ireland’s low corporate tax rate in attracting FDI; 2) Apple’s decision to allocate its earnings to a paper company in Ireland with no physical presence in the country; 3) the repatriation of foreign earnings to the United States; 4) the transfer payments that Apple makes to the USA to pay for R&D; 5) the Commissioner’s decision to impose a retroactive tax penalty on a foreign company that acted in accordance with the tax arrangements granted by its host country.

The case is designed to encourage students to think about the role of tax policy from the perspective of the company. With the rise of global companies such as Apple whose products are sold all over the world, the question of where they should be taxed becomes a particularly controversial issue. Students will be asked to reflect on tax policy around the following five points: 1) as a national competitive advantage in attracting FDI; 2) on shrewd corporate accounting that renders taxable income to nearly zero sums; 3) on powerful tax disincentives for the repatriation of earnings approaching two trillion dollars to the United States, 4) the political rational behind the current corporate tax principle that states taxes for innovative companies like Apple should be paid in the source country where R&D is carried out; 5) and that supranational entities such as the European Commission should take preventive measures and not corrective punitive measures in dealing with foreign countries who have created thousands of jobs in a particularly vulnerable host country such as Ireland.