Róisín Shortall (Dublin North West, Social Democrats) | Oireachtas source

Given that we are dealing with a figure of such enormous magnitude, it is not surprising that much of the focus of the discussion since the Commission's ruling has been on the actual amount owed. However, the amount itself has served as something of a convenient distraction. This is far from surprising because distraction and obfuscation have been the hallmarks of the Government's response to the Commission's findings. Since the ruling was released there has been a persistent attempt to frame it as everything from an attack on our sovereignty to an attack on our 12.5% corporation tax rate and an attempt to make Ireland the tax collector of Europe. It is none of these.

Fundamentally this is a legal matter and what has been missing from the countless statements from Government is any convincing evidence at all that there is a clear legal basis on which to make an appeal. We know there is a specified legal period in which an appeal must be lodged, but surely it would have been prudent at the very least to use this period to reflect on what is in the national interest and carefully consider all the ramifications of a possible appeal. Yet, in the immediate aftermath of the Commission's announcement, the Minister for Finance declared his intention to rush headlong into defending a practice that may very well be indefensible without addressing the question at hand. That question is whether Apple was facilitated with a selective arrangement. Whether or not we refer to the 1991 arrangement as a deal is irrelevant. The fact is that a tax liability was negotiated between Revenue and representatives of Apple. While we do not have access to the full ruling of the Commission, we know the reasons it decided to initiate the investigation. Its stated reasons provide a deeply worrying insight into the origins of this deal and raise a number of questions that have yet to be addressed substantively by the Government.

Fundamentally, we need to know how the 1991 agreement was negotiated, who negotiated it, under what authority it was negotiated and whether anyone at all checked with Europe. Can the rationale for this deal be substantiated in any way, or was it a case of deciding on a figure and working back from there? All the indications are that this was the approach. If that is the case, it is scandalous. Did somebody in Revenue agree a figure and work back from there? Was any report produced by Revenue to support the calculation of Apple's taxable profits and if so, why was that not provided to the Commission in 2014? Why was the 1991 agreement applied for 15 years without revision and why was it agreed with an open-ended duration? It is the same in regard to the 2007 agreement. Why was no documentary evidence provided to explain how the figures were derived? Surely if the Government is to mount an appeal against the accusation of selectivity, it must be in a position to support the terms of the deal with evidence and produce evidence of comparable treatment of other companies. Can the Minister confirm such documentation exists and if so, was that made available to the Commission?

It seems from the documents supplied to the Commission that the facilitation of tax avoidance was an intentional strategy adopted in 1991 and updated in 2007. Without the full report of the Commission, we cannot make a determination on whether this is actually the case and whether the deal was applied selectively or was reached as a result of a codified methodology. The Government has denied that Apple was the only company to avail of such an arrangement. We must, therefore, ask how many other companies were facilitated in this way and what the terms of their arrangements were. According to a very interesting 2014 RTE interview, the former CEO of Apple, John Sculley, advised Apple to seek such a deal based on his experience of a similar arrangement Revenue had with Pepsi. Did one have to be in the know, then, to avail of this deal? We have seen from recent Commission rulings in Spain, in respect of Santander, that the principle of selectivity does not require only one company to avail of a scheme. A scheme benefiting a select group of companies can also be deemed to be anti-competitive. Was it the case that only a very small group of companies were able to negotiate such beneficial deals? Are there more Apples? If it was generally available, as seems to be the claim by Government now, can the Minister explain how many companies were informed of the scheme's existence? Did the IDA play a role? Did the Government? Could it be the case that there are many more Apples and that the actual scale of tax avoidance over recent years in this country is on an even greater scale than has been unearthed so far?

With so many questions outstanding, the one that remains is whether the Minister can, with the full benefit of hindsight, stand over the manner in which these deals were made and the resulting arrangements and vouch for their full compliance with EU competition law. We know multinational investment in Ireland is critical to our economy and our national interest. As a peripheral country in European terms, an important part of our industrial policy must be to attract multinational jobs. However, that strategy must be in compliance with EU law on competition. Multinationals must pay their fair share of tax and that policy must be a sustainable one. In the Apple case, there is no evidence to suggest that is the case on this occasion. That is the problem with this: there is no basis for an appeal.

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