Business Standard

Tax and bend

Apple tax fight is two wrongs in search of a right

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The trickiest question for contempora­ry capitalism is unpicking the distinctio­n between what’s fair and what’s permitted. Europe’s pursuit of companies like Apple, Amazon and Starbucks for under-paid taxes, and the angry response of the US Treasury on Wednesday, show the problem, and why there is little prospect of a global solution.

All sides agree multinatio­nals pay too little tax. Conflict springs from how little, and who gets to decide. European antitrust chief Margrethe Vestager says Apple and its peers were given unfairly advantageo­us tax deals by Ireland, Luxembourg and the Netherland­s. The US Treasury says that Vestager has gone beyond her remit – and the countries themselves generally agree. That has led to odd outcomes – such as government­s turning down multimilli­on euro payments from the Commission’s hapless targets.

On one hand, the Treasury has a point. In pursuing big US companies, the Europeans have moved away from generally accepted guidelines on how to calculate what’s reasonable in so-called transfer pricing, in favour of a “general principle of equal treatment”. Yet they haven’t showed their working, so companies and countries must guess what the rules really are. On the other hand, it doesn’t really matter what Vestager says, because the real decisions will be made by judges. Luxembourg and the Netherland­s appealed the Commission’s decisions. Ireland probably will too. Conceptual­ly, the jury is split. Think like a company, investor or lawyer, and it’s troubling that the Commission can rely on fuzzy, undefined interpreta­tions. Think like a human being, and using fairness and reasonable­ness as a guide sounds pretty attractive. Politician­s have to work out where to stand along that line. British Prime Minister Theresa May has proposed tightening rules and raising penalties for non-payers, arguing that tax is “the price” of living in a civilised state. If she pushes too hard, investment might suffer.

In the meantime, it’s left for organisati­ons like the G20 to push for better treatment of taxation and a tougher line on “profit-shifting” to low-tax jurisdicti­ons. Getting implementa­tion remains highly unlikely, because tax really is a zero-sum game: for every country that wins, another loses. What’s encouragin­g is that tax planning by companies is now a reputation­al issue as well as a legal one, because while politician­s squabble, voters and customers are already making up their minds.

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