“A VERY BIG moment” is how those in government have described the upcoming decision on the Apple tax case next week.
The European Court of Justice confirmed recently that an opinion by the Advocate General on the Apple case will be arrived at on 9 November.
There is a definite nervousness felt around the decision from an Irish government perspective, as a lot is riding on it.
The entire saga has been playing out for over seven years now and has been a shadow hanging over Ireland’s foreign direct investment stronghold.
While many would perhaps like another €13 billion to be added into the Exchequer coffers, Apple and successive Irish Governments have consistently made the argument that tax is not owed.
€13 billion
If the appeal wins out, the money will have to be paid to the Irish State.
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Back in 2020, the General Court of the European Union ruled in favour of Apple and the Irish State’s legal challenge against the Commission’s order for the allegedly unpaid taxes to be handed over.
Previously, the EU General Court sided with Apple and the Irish State, and said that the Commission failed to prove that the company had received tax advantages from the Irish state.
The Commission moved to appeal that decision in September 2020.
EU Competition Commissioner Margrethe Vestager said at the time that the General Court had made a “number of errors of law”.
Now, the Court of Justice of the European Union will have the final say on the matter.
Earlier this year, Taoiseach Leo Varadkar said the view taken by the European Commission that Ireland had a special tax arrangement with Apple that was not available to other countries “is simply untrue”.
The original tax bill was just over €13 billion, but as the case has dragged on the total assets in the Ireland-Apple escrow account have fallen.
Last month, figures in the Comptroller and Auditor General showed the assets reduced last year by €259 million to €13.374 billion from €13.633 billion in 2021.
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Next week’s decision will be the end of the road for the case, in what has been described as very significant moment for Ireland and the business it does with corporations.
What if Ireland loses?
So what would happen if Ireland loses the case and the final decision is that we can take the €13 billion?
If that were to happen, there is a belief within government that the first thing that would happen is that other countries would then come out and say they deserve a share of the tax revenue, claiming it is tax that they were deprived of due to the special deal with Ireland.
A “phenomenal political quagmire” is how it has been described by senior sources, who said it would be unprecedented as to how it would be decided as to who gets what, in that case.
The government’s belief is that the Irish State wouldn’t be able to just pocket all the money, as a whole raft of countries would be making claim to the money in the pot.
Ultimately, the Irish government does not want to be in that situation – it wants to win the case, but doesn’t want the money.
If the Commission were to be successful, the inference would then be that Ireland made a special agreement with a single company through its tax law, with those in government stating that the consequences of that for Ireland’s Foreign Direct Investment (FDI) model overall and for the companies already situated here would be “very significant”.
