In June, the European Commission (“EC”) announced the opening of three investigations into tax rulings in Ireland, Luxembourg and the Netherlands and, in particular, into tax rulings applied by Ireland to Apple, by Luxembourg to Fiat Finance and, last, by the Netherlands to Starbucks. In October 2014, the EC announced the opening of a fourth investigation into the application of tax rulings of Luxembourg to Amazon. Most recently, the EC ordered Spain to recover money from companies that benefited from rules that encouraged merger activity outside of the country.

We understand that the EC also has requested that Luxembourg produce all tax rulings that were issued in 2010, 2011, and 2012.  Luxembourg has not complied with this request, and the matter will be heard by the EU Court of Justice.  Companies with tax rulings that do not withstand challenge can be responsible for up to ten years of tax liabilities.  In essence, the EC is investigating whether certain tax practices of Member States have conferred prohibited selective advantages on multinational companies via tax reductions.

The four investigations relate to tax rulings which validate transfer pricing agreements, also referred to as advance pricing agreements (APAs). Transfer pricing relates to the prices charged for commercial transactions between parts of the same corporate group (intra-group commercial transactions) e.g., the prices set for goods sold or services provided by one subsidiary of a corporate group to another subsidiary of the same group.  APAs are agreements that determine an appropriate set of criteria, or methodology, for the determination of the transfer pricing for intra-group commercial transactions. Since the prices set for these intra-group transactions will be accepted by the taxing authority that enters into the APA, APAs affect indirectly the allocation of taxable profits to that taxing jurisdiction and the tax paid by the corporate group in that jurisdiction.

The four investigations concern the calculation methods of certain APAs as negotiated between Member States and the various affected companies as set out in the tax rulings.  In particular, the investigations concern the compatibility of these calculation methods with internationally agreed standards as well as with the arm’s length principle.

The risk for the companies involved is that, in case the aid is considered to be incompatible, the Member State is required to claim the financial advantage back from the benefited company.  In addition to the companies already under investigation, other companies may well become the target of additional investigations.  As a result, any company with an APA from an EU member state should determine ― and assess ― the State aid risk.  They should then consider whether any changes to the company’s trading structure may be merited.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Johan Ysewyn Johan Ysewyn

Johan Ysewyn advises on all aspects of EC, international and Belgian antitrust law, including merger control, compliance, cartel and leniency issues and abuse of dominance cases.  He acts as the head of the firm’s EU Competition group, working from our Brussels and London…

Johan Ysewyn advises on all aspects of EC, international and Belgian antitrust law, including merger control, compliance, cartel and leniency issues and abuse of dominance cases.  He acts as the head of the firm’s EU Competition group, working from our Brussels and London offices.

Mr. Ysewyn’s practice has a strong focus on global and European cartel investigations and he has represented companies from a range of sectors.  He is also one of the leading experts on EU state aid issues, working both for beneficiaries and governments.

He regularly speaks at conferences such as GCR, IBC, IBA, Chatham House and other industry events and has written for numerous legal publications.  He is recognised as a leading competition lawyer by Chambers, Legal 500 and other leading industry guides.  Mr. Ysewyn has acted as a non-governmental advisor to the International Competition Network (ICN).

Photo of Lee Kelley Lee Kelley

Lee Kelley is of counsel in the Tax Practice Group. Her practice focuses on structuring domestic and cross-border acquisitions and dispositions, post-acquisition integration transactions, and internal group restructurings for both domestic and foreign- parented multinational corporations. Ms. Kelley also frequently advises companies with…

Lee Kelley is of counsel in the Tax Practice Group. Her practice focuses on structuring domestic and cross-border acquisitions and dispositions, post-acquisition integration transactions, and internal group restructurings for both domestic and foreign- parented multinational corporations. Ms. Kelley also frequently advises companies with respect to the tax consequences of debt restructurings, the classification of financial instruments as debt or equity, and the applicability of section 382 to loss corporations.

Ms. Kelley is one of a only a handful of tax lawyers who has held executive posts at both the Internal Revenue Service and the U.S. Department of Treasury. At Treasury, she served as Deputy Tax Legislative Counsel where she participated in the development of legislation, regulations and administrative guidance concerning corporations and their shareholders, partnerships, and exempt organizations. At the I.R.S., Ms. Kelley served as the Deputy Associate Chief Counsel for Corporate Taxation. In that capacity, she managed the issuance of private letter rulings to corporations and their shareholders, and participated in the development of the government’s positions in matters of tax controversy.

Prior to Ms. Kelley’s role at Treasury, she was associated with the national offices of two public accounting firms. Ms. Kelley is a frequent public speaker on matters relating to taxation.