THE NEW WORLD OF STATE AID CHALLENGES BY THE EUROPEAN COMMISSION

Transcription

1 THE NEW WORLD OF STATE AID CHALLENGES BY THE EUROPEAN COMMISSION THE APPLE DECISION AND OTHER RECENT CASES MITCH BLUMENFELD RAFAEL CALVO AXEL CORDEWENER KEITH O DONNELL

2 SESSION OVERVIEW THE NEW WORLD OF STATE AID CHALLENGES: THE APPLE DECISION AND OTHER RECENT CASES Dr. Axel Cordewener, Professor of tax law at the Katholieke Universiteit Leuven and counsel to Taxand Germany joined a panel led by Keith O Donnell of Atoz, Taxand Luxembourg, to discuss the brave new world of European Commission challenges to tax planning using the EU state aid laws. This included the Apple case and American and Irish responses to it, and the recent Autogrill and Banco Santander cases and the Spanish responses to them. Included on the panel were Mitch Blumenfeld of Packaging Coordinators Inc (PCI), and Rafael Calvo of Garrigues Taxand Spain who has been directly involved in the litigation in respect of the Spanish cases.

3 CONTENTS 1. Current context 2. What is State Aid? 3. Apple case 4. Case study: Spanish goodwill case 5. Recovery issues 6. What s next and how to manage?

4 CURRENT CONTEXT

5 CURRENT CONTEXT: APPLE CASE IN THE PRESS

6 CURRENT CONTEXT: EUROPEAN COMMISSION ON APPLE Ireland gave illegal tax benefits to Apple worth up to 13 billion. If other countries were to require Apple to pay more tax on profits of the two companies over the same period under their national taxation rules, this would reduce the amount to be recovered by Ireland.

7 CURRENT CONTEXT: US REACTION ON APPLE CASE US political leaders reacted with anger to an EU decision to hit Apple with a record-breaking 13 billion tax penalty, setting the stage for possible US retribution and highlighting the volatile politics around international corporate tax issues. FT, August 2016 EU Commission in danger of becoming a supranational tax authority. The latest ruling could undermine foreign investment, the business climate in Europe, and the important spirit of economic partnership between the US and the EU. US Treasury, August 2016

8 WHAT IS STATE AID?

9 STATE AID: DEFINITION Any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.

10 STATE AID: MAIN FEATURES State aid is a competition law matter, not a tax law matter. Proceedings take place between the EU Commission and the Member State, meaning the taxpayer that can end up footing the bill is not fully represented. When a Member State appeals a state aid finding in tax matters, it finds itself in the unusual position of contesting its obligation to collect taxes.

11 STATE AID: BUILDING BLOCKS A measure is illegal state aid if: 1. It is granted by state resources 2. It confers an advantage to undertakings 3. It is selective and 4. It affects trade between Member States and distorts or threatens to distort competition. Image credit: taxadvisermagazine.com/stockphoto/gajus

12 STATE AID: EXCEPTIONS Very limited exceptions to achieve policy objectives: Social purposes. Less developed areas/ regions, culture and heritage conservation. Remedy a serious disturbance in a national economy

13 STATE AID: PROCEDURE Worst case scenario: 1. Negative COM decision + formal illegality (new aid granted without notification) 2. Recovery decision against Member State: from each beneficiary (+ interest) 3. Retroactive for (at least) 10 years, overriding domestic statutory limitations.

14 APPLE CASE

15 APPLE CASE: BACKGROUND New DG COMP 'Task Force Tax Planning Practices' requests overview of tax rulings from 7 Member States (B, CYP, IRE, LUX, MT, NL, UK) Jun 2013 COM requests info on rulings ( ) from all Member States Dec 2014 Negative COM decisions with recovery orders = 'worst case scenario' May 2013 US Senate investigation of Apple s [US] corporate tax avoidance 11 Jun 2014 COM opens formal investigation procedures against IRE (Apple) [and against LUX (Fiat)/NL (Starbucks); later also LUX (Amazon)] 21 Nov 2015: Against LUX (Fiat) and NL (Starbucks) 30 Aug 2016: Against IRE (Apple)

16 APPLE CASE US IRELAND HEAD OFFICE 8-18% profit IRISH OPS 82-92% profit PROFIT ALLOCATION RULING HEAD OFFICE IRISH OPS 10-20% profit 80-90% profit PROFIT ALLOCATION RULING Apple Sales International 4,000 Employees Apple Ops Europe APPLE SALES INTERNATIONAL 2011 Commercial Profit 2011 Tax Result according to Apple EUR 16 billion EUR 50 million

17 APPLE CASE: PRESENTATION BY THE EUROPEAN COMMISSION (IP/16/2913)

18 APPLE: NEGATIVE DECISION 30/08/2016 Main reasoning based on broad reference system: Ordinary CIT rules for resident companies + non-resident companies with IRE-branches = all profits taxable in IRE: Selective advantage: 'benchmark' for profit allocation is arm s length principle enshrined in Art. 107(1) TFEU (ECJ Forum 187) = not respected here: Choice of allocation method unacceptable: based on attribution of Apple IP licenses to (stateless) AOE/ASI 'head offices' which exercise no relevant activities Even if choice correct: application methodologically wrong (IRE-branches as 'tested parties' despite more complex functions; expenses no correct profit level indicator; ). No justification based on nature/general scheme of reference system.

19 CASE STUDY: SPANISH GOODWILL CASE

20 A LONG STORY Financial goodwill in the Spanish CIT Law Only in the acquisition of foreign holdings by any Spanish taxpayer EC Decision #1 State Aid in intra-eu acquisitions EC Decision #2 State Aid in non-eu acquisitions State aid investigation Following several complaints Appeals before the GC and Recovery orders Not affecting pre-2007 acquisitions (but DT claims full recovery) Appeals before the GC and Recovery orders Not affecting pre-2007 acquisitions and some other particular cases

21 A LONG STORY EC Decision #3 State Aid in the acquisition of holding entities (?) But no recovery, since The EC filed a cassation appeal before the ECJ The case is back to the General Court to discuss #1, #2, #3, the DT appeal The General Court annulled Decisions #1 and #2 T-219/10 Autogrill T-220/10 Santander The ECJ annuls the GC judgments C-20/15P and C- 21/15P World Duty Free (ex-autogrill)/santander THE END???

22 SELECTIVITY LESSONS Can a formal exception to the tax system, materially available (de iure and de facto) to all undertakings be selective? Of course not!, the GC said the rule is open to all companies and does not benefit a particular category of undertakings/buyers. Why not?, the ECJ said: Selectivity does not require identifying a category of undertakings Measures favouring certain behaviours may be selective So, even a measure open to all undertakings may be selective if treats differently two situations (e.g. domestic vs. foreign acquisitions) that are legally and factually comparable.

23 SELECTIVITY LESSONS But now the cases are referred back to the GC: Did the EC prove that foreign and domestic acquisitions were in a similar situation? Did it consider other tax provisions offering the same to domestic acquisitions? The real problem with this ECJ judgement is rather for the State aid system: Now, even tax measures open to all undertakings may be considered selective Institutional balance/tax sovereignty seriously in question Need of a much more realistic definition of the reference system.

24 PRACTICAL ASPECTS A Spanish tax advantage not available in e.g. Germany is not State aid by itself (only if discriminates other Spanish taxpayers) but can give rise to a State aid complaint by e.g. a German competitor The Member State that granted the aid is normally compelled to defend it (not always, Spain did not appeal against Decisions #1 and #2) but, at the same time, will benefit for the recovery Unless legitimate expectations, recovery can go back to 10 years of aid (deductions) plus interest what happened here? Recovery is not suspended by the court appeals, unless very exceptional circumstances arise.

25 PRACTICAL ASPECTS Suspension is probably easier for the State than for the companies: e.g. does it make sense to devote audit resources to recover the aid granted in Decision #3 when it is not clear for several reasons whether it is State aid or not? According to the current EC s (and ECJ s) trend, open-to-all tax measures benefiting certain activities are in principle selective, so Member States must be ready to: Prove that the tax exception is justified; or Notify the (supposed) aid to the EC and get a clearance in advance (so avoiding recovery issues). Does this make sense?

26 RECOVERY ISSUES

27 RECOVERY ISSUES How much is at stake and how are taxpayers dealing with it?

28 EXAMPLE SPANISH GOODWILL Legitimate expectations in Decisions #1 and #2, so: No recovery risk (and possibility to complete the deduction in future years) for acquisitions made before the end of 2007 Limited recovery issue ( just a loss of future tax credits) for acquisitions made on or after 2008 Problem: according to the EC, the above only applies to direct acquisitions (i.e. not made in holding companies). No legitimate expectations in Decision #3, so: Recovery risk in the acquisition of holding companies (whether EU or not) made from 2002 Amount to be recovered: not public but presumably relevant (several billion).

29 EXAMPLE APPLE No legitimate expectations as defence against retroactive recovery Recovery period: 10 years backwards from first COM request for information (June 2013) Until end of 2014 (as of 2015: IRE legislation changed + rulings terminated!) Amount to be recovered: Difference between tax actually paid and amount which should have been paid COM estimate: total tax burden EUR 13 billion (to be reduced if other States start taxing ocean income?) Plus interest EUR 6 billion.

30 WHAT S NEXT AND HOW TO MANAGE?

31 WHAT S NEXT AND HOW TO MANAGE?

32 TAXAND S TAKE 1 Multi-country planning in EU is more than the sum of the parts. 2 Protect by seeking local clarity, but don t just trust local tax authorities. 3 Will this get worse before it gets better?

33 SPEAKER PROFILES

34 SPEAKER PROFILE Mitch Blumenfeld PCI Pharma Services E: Mitch Blumenfeld is the Chief Financial Officer for PCI Pharma Services, the world s largest provider of outsourced pharmaceutical services. PCI offers global services including clinical trial supplies, storage and distribution, commercial packaging, pharmaceutical manufacturing and analytical services from 16 facilities across North America and Europe. PCI has over 40 years of healthcare services experience, and is a portfolio company of Partners Group, a 50 billion private markets investment management firm headquartered in Zug, Switzerland.

35 SPEAKER PROFILE Rafael Calvo Garrigues, Taxand Spain T: E: Rafael Calvo is a partner and head of EU taxation at Garrigues, Taxand Spain. He specialises in advising on international investments, financing and restructuring. He has acted as a lawyer for various Spanish and international companies in tax proceedings regarding State aid and the recovery of taxes incorrectly paid, as well as requests for preliminary rulings from the European Court of Justice.

36 SPEAKER PROFILE Dr. Axel Cordewener Katholieke Universiteit Leuven T: / E: Dr. Axel Cordewener is a Professor of tax law at the Katholieke Universiteit Leuven and counsel to Flick Gocke Schaumburg, Taxand Germany. He has worked in the Legal Service of the European Commission and has extensive experience as litigator before the German and the European Courts.

37 SPEAKER PROFILE Keith O Donnell ATOZ Tax Advisers, Taxand Luxembourg T: E: keith.odonnell@atoz.lu Keith O Donnell is a member of the Taxand Board and is Managing Partner of ATOZ Tax Advisers, which is Taxand Luxembourg. Keith has been instrumental in shaping legislative change through coordination with industry groups. He sits on a number of key international bodies including the OECD s CRS business advisory group.

38 ABOUT TAXAND Taxand is the world s largest independent tax organisation with more than 400 tax partners and over 2,000 tax advisors in over 40 countries. Taxand focuses on delivering high quality, integrated tax advice, free from conflict creating audit work. Taxand advisors work together to deliver global tax services for clients. Taxand is a global organisation of tax advisory firms. Each firm in each country is a separate and independent legal entity responsible for delivering client services. Copyright Taxand Economic Interest Grouping 2017 Registered office: 1B Heienhaff, L-1736 Senningerberg RCS Luxembourg C68