Dr Stephen Daly

The European Court of Justice has just handed down its decision in the Belgian “excess profits” case (C-337/19 P Commission v Belgium and Magnetrol), the key take-home points of which are: the ECJ found that Belgium operated an “aid scheme”, the case sets a useful precedent for the Commission, and the case is far from over.

By way of background, at the centre of the case is a Belgian tax provision which allowed for the downward adjustment of the taxable profits of Belgian resident entities, apparently introduced in order to prevent or undo double taxation. The downward adjustment, in short, sought to ensure that cross-border (read: multinational) entities were treated in a similar manner to domestic standalone entities which have various expenses that cross-border entities do not (meaning that cross-border entities generate an “excess profit” not enjoyed by standalone entities). The downward adjustment sought to remove the excess profits from the tax base.

Such a downward adjustment was provided to 55 entities by way of 66 advance tax rulings from 2004 to 2014. The Commission claimed that this amounted to an “aid scheme”, defined as:

“any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount” (Article 1(d) of Reg 2015/1589)

In order for an aid scheme to arise, three conditions must be met accordingly. First, there must be an “act”. Second, the individual aid must be granted without “further implementing measures”. Third, the undertakings to which the aid is granted must be defined in the act in a “general and abstract manner”.

The first question to be decided then was whether the systematic approach of the Belgian tax authority meant that there was an act. The Commission reviewed only a sample of the 66 tax rulings given to 55 entities and the General Court found that this could not demonstrate that there was a consistent administrative practice. The Advocate General in her opinion in December 2020 disagreed with the General Court. AG Kokott found that a sample could be used as long as it is representative, and the AG was happy that the sample here was representative because there were 22 examined, they related to multinationals, and they were spread out over different years (2005, 2007, 2010 and 2013). The European Court of Justice agreed with AG Kokott (at paragraphs 94-99 of the ECJ’s judgment, and 140-144).

The second question was whether there were further implementing measures. In other words, did the Belgian Tax authority exercise legal discretion when granting the rulings? The General Court held that there were further implementing measures. AG Kokott disagreed because the consistent administrative practice demonstrated that there was no decision-making autonomy and thus no legal discretion in the hands of the Belgian tax officials. (Essentially, because the General Court was wrong on the first question, it was also wrong on the second). The European Court of Justice agreed with AG Kokott (at paragraphs 111-113).

The third question was whether the beneficiaries of the aid scheme were defined in an abstract and general manner. The General Court said no, and AG Kokott again disagreed. The General Court, per AG Kokott, had misdirected itself by looking at whether the legislation defined the beneficiaries in such a way, rather than looking at whether the consistent administrative practice and legislation defined the beneficiaries. For the General Court, further implementing measures were necessary and therefore there could be no identification of the relevant beneficiaries from the legislation alone. Again, this error from the General Court stemmed from the earlier erroneous answer in response to the first question. The European Court of Justice agreed with AG Kokott (at paragraphs 120-124).

The choice to litigate the case on the basis of the “aid scheme” argument may have been driven by the statutory context, in that the Belgian rules provided for a downward adjustment and separately entitled taxpayers to seek a tax ruling as to whether either would be granted.

From a litigation perspective however, the advantage of arguing that Belgium had adopted an aid scheme was that the Commission could take this single case against Belgium, rather than litigating the dozens of individual instances in which tax rulings were granted. A positive finding by the European Court of Justice on the aid scheme issue sets an important precedent for the Commission. It can use this line of attack against the transfer pricing legislation of other Member States for example, which provides for downward adjustments of taxable profits following the provision of a tax ruling to a taxpayer.

Though the Commission won in this instance however, it does not mean that the case is over. Rather, it has been remitted back to the General Court now to make a determination on the other central issue, namely whether this aid scheme in turn provided State aid to the recipients (in addition to some peripheral issues around legitimate expectations for instance) – so, not exactly a walk in the park for any of the parties involved.

The slogan “no taxation without representation” immediately summons images of battles, most notably the Boston Tea Party. The phrase was used to rally support for independence of the “colonies” in North America from the United Kingdom. Taxes were imposed, not by local representatives, but rather by the Parliament across the Atlantic in London. “Surely it is only right”, the argument goes, “that if I am to suffer taxation, it should be by those who I elect. As a result, I can voice my disapproval over any taxes through the ballot box”. Taxation only with representation takes seriously the importance of democratic consent. Even for those who reject the idea that “tax is theft”, it is still compelling to argue that issues around taxation should ultimately be regulated by the people. 

The phrase encounters difficulties however almost immediately on application. There are lots of taxpayers who are not represented by those with the power to impose taxes. Let us consider the UK. VAT is imposed on those who purchase (some) goods and services. It is a tax which applies indiscriminately across those eligible to vote and those ineligible. For General Elections in the UK, only UK citizens (and citizens from elsewhere such as Ireland and some Commonwealth countries) who are over the age of 18, registered to vote, resident in the UK (or were in the past 15years) and are not barred by law on account for instance of serving a prison sentence, are entitled to vote. But every non-UK citizen without voting rights and every person under the age of 18 who buys goods and services in the UK which are subject to VAT will pay the tax. Stamp Duty Land Tax is levied simply on the purchase of land. Stamp Duty on the stamping of certain instruments. 

Perhaps it might be said that the phrase works best when considered in respect of direct taxes such as income tax, which is paid by residents on income earned in the UK and abroad. It is also paid by non-residents on income earned in the UK. Residents will not necessarily be entitled to vote – again many UK residents are not citizens of either the UK or Ireland or some parts of the Commonwealth. Income tax is charged on those under 18 also so will fall on even UK citizens without voting rights in Parliamentary elections. So too with those barred by operation of the law, such as prisoners or Peers in the House of Lords. Then of course every non-resident who is not a UK citizen will be subject to tax on income earned in the UK.

It becomes immediately apparent that the relationship between taxation and representation is fragile when eligibility to vote is considered against the power of the State to tax. This should come as little surprise to those interested in tax policy. Prof Wolfgang Schon for instance in his brilliant “Taxation and Democracy” article in the Tax Law Review from 2019 stressed this point. Dr Yvette Lind has been producing some excellent research on the topic also, whilst earlier in June the European Association of Tax Law Professors dedicated a day of the annual conference to issues around taxation, democracy and representation.

The link between taxation and representation becomes even more fragile when the demographics of who actually votes in the UK are considered and compared with those who actually pay the taxes in the UK.  

It is well known that turnout amongst voters increases with age. For the 2015 and 2017 General Elections, turnout ranged from between 40% and 50% among the youngest voters to over 80% among the oldest. 

Tax receipts, however, are drawn more from the younger than the older populations. National Insurance Contributions (NICs) make up around 17% of total UK tax receipts. However, critically, those over 65 are not subject to NICs on earnings. Income tax makes up almost a quarter of tax receipts. Those over 65 make up just over a fifth of income taxpayers (6.6million). Average income tax paid across this group is roughly £3,676, meaning that total income tax paid by the group is £24.26billion. This is quite the sum in absolute terms of course, but it makes up just around 12% of total income tax receipts.

Of course, these statistics on income tax and NICs liabilities are blind to voting entitlements and the exercise of such entitlements – there will be over 65s as well as under 65s who pay tax but are not eligible to vote, or are eligible to vote, but do not vote. But the number of over 65s who are not entitled to vote is eclipsed by those ineligible to vote younger taxpayers (there are around 9.5million foreign born people in the UK and 6.65million of them are between the ages of 26-65). And of course, the likelihood that those over 65 will vote is greater than the likelihood of those under 65 doing so, as already highlighted.

What begins to become clear then is that those who pay less in tax have greater control over government policy than those that do. “Taxation with consent” fails not just at a formal level, but also in substance. Put crudely, we have taxation for the non-represented, and non-taxation for the represented.

Let’s make one thing clear at the outset – it was right for the Commission to take a look at some of the tax ruling practices carried on by some Member State tax authorities. Professor Omri Marian has written that ‘we have almost no knowledge of the legal and institutional environment that facilitated an almost completely unchecked administrative process. We do not know who instituted the process, who directed it, and why.’ In his 2017 Harvard Business Law Review article The State Administration of International Tax Avoidance, Marian took a forensic look at the Luxleaks documents and highlighted that on a single day where 11 tax ruling applications were made, 8 were approved that same day (at p. 17).

The Commission’s investigation of Amazon subsequently highlighted similar anomalies. By way of background, Amazon had received a ruling in 2003 (which was prolonged in 2011) from the Luxembourg tax authority in respect of the amount of tax due on activities in Luxembourg. At the core of the ruling was an agreement as to how to calculate a royalty payment from one Luxembourg entity to another. But this ruling was granted just 11 days after application, there was no contemporaneous transfer pricing report and there was a cosmetic presentation of the calculation for the royalty. In short, the agreement on the part of the Luxembourg tax authority does not appear to have been backed up by robust contemporaneous evidence. When the Commission handed down its final decision in 2015, finding that the ruling amounted to unlawful State aid because more tax was due than had been paid (according to its own analysis using the arm’s length principle), it must have thought: “how could we possibly lose this case?”

And yet on Wednesday 12 May the General Court found against the Commission and upheld the appeal of Luxembourg and Amazon. How could the Commission have lost this case?

The scientific answer is that the Commission failed to satisfy the evidentiary and legal burden, according to the General Court, required to demonstrate that there had been an underpayment of tax. But this is to look at the trees and not the wood.

The arguably improper administrative practices on the part of the Luxembourg tax authority and other Member State tax authorities have not been placed at the centre of the tax ruling cases. Instead, the litigation has proceeded on the claim that the tax authorities undercharged the multinationals. And the Commission has used the arm’s length standard along with the OECD guidance to support its arguments.

The outcome in the case is part of a trend whereby the General Court has responded, even in respect of those cases that the Commission has won (namely FIAT and Engie), by making it incredibly difficult for the Commission to prove that there has been an error in calculating the taxes due. The General Court is doing this deliberately because it wants to make incredibly narrow the window of opportunity for the Commission to challenge old tax arrangements. It does not want pandora’s box opened!

That this is the state of play is unfortunate, but it is an inevitable outcome of the way that the cases have been argued. There is certainly a legitimate place for State aid rules in regulating potentially dodgy relationships between large taxpayers and tax authorities – and indeed, if one reads through the Commission’s opening decisions in these cases, that appears precisely to have been its initial concern. And that initial concern was merited. To follow through on that logic then, improper and poor tax authority practices ought to be at the forefront of the State aid analysis, an argument I have made in the Law Quarterly Review in a paper entitled ‘The Power to Get it Wrong’. Once you can prove that a tax authority has acted improperly in its relationship with a large taxpayer, then a prima facie demonstration that tax has been underpaid ought to suffice. 

So where does the Commission go from here? On account of the fact that the Commission has appealed against the General Court’s judgment in Apple, one might be minded to think that the Commission will appeal this case also. But recall that the Commission also lost the Starbucks case and decided against appealing there. And a decision to litigate is not inconsequential – it costs money, money that will ultimately come from the monies generated from EU citizens, businesses and employees of EU institutions.

Most fundamentally, what exactly does the Commission have to gain from even winning this case? Luxembourg has subsequently reformed its rulings’ processes, with a rulings body established to approve rulings (rather than a single individual) and annual reports summarising, in an anonymized form, advance rulings that have been provided. Moreover, there are two interrelated reasons why the Amazon tax structure significantly reduced taxes payable – a hybrid mismatch and the previous US deferral system. The European profits sat with a Luxembourg limited partnership which was not taxable in Luxembourg (because the partners were US companies) and not taxable in the US until remitted into the country. Since the investigation began in 2014, the US has amended its rules with the TCJA and the OECD successfully spearheaded the Multilateral Instrument which among other measures made reforms to the treatment of hybrid mismatches. Sure, winning this case might result in some back taxes being paid to Luxembourg, but it seems clear that the Commission has already won in terms of these bigger points!

There is wood out there – not just trees.

On the 23^rd of March, dubbed by HM Treasury as “tax day”, a number of consultation documents were released. The idea is to “enhance the stability and effectiveness of the UK tax system by outlining a future pathway for its tax administration and tax policy development”.

One of the documents concerns the tax administration framework and asks consultees a range of questions (from how to assist taxpayers in entering or leaving the tax system to how the system for payments and repayments should be updated) about how the system can be updated for a 21^st century tax system. That goal itself is admirable. The legal machinery for tax administration was developed in a very different world, where paper and human tax officials were the norm.

Today’s world is completely different – ditigised records and automated decision-making are increasingly becoming the norm.

It would seem appropriate then to interrogate the assumptions that underpin the current legal machinery and ask whether they are still fit for purpose.

The questions asked in the call for evidence are generally geared around making the experience better for taxpayers and also more efficient for HMRC. These are not unimportant aims. But they are not really concerned with law.

To my mind the legal issues that emerge centre around liability and procedural safeguards. Consider self-assessment for instance. When everything is stripped back, the important legal fact of self-assessment is that it places liability for paying the correct taxes on the taxpayer and not on HMRC. In a world where it was difficult to verify the veracity of taxpayer’s returns, that makes sense. But given the amount of information held by HMRC today which is transmitted digitally (and automatically) by third parties, there is a question to be asked as to whether this is still appropriate. Particularly in the case of the self-employed who work through digital platforms which can transmit all relevant information to HMRC. Pre-populated tax returns are already in practice occurring (when I submitted my tax return this year, almost all of the relevant information was already inserted in my tax account) and given that this practice will likely continue and grow, it makes sense to reconsider where liability should rest.

What about the enquiry process? Once HMRC has opened an enquiry, it does not close by default. It can remain open until either HMRC decides to close it or it is forced to do so by the Tribunal (on request from the taxpayer concerned). Again, this arrangement makes more sense in a world in which it is difficult to access relevant information about taxpayers. But does it still hold firm today?

Or what about the enquiry window(s)? There are time limits governing when an enquiry must be opened: 1 year (for any reason), 4 years (where a tax loss is discovered), 6 years (where there’s been carelessness), 12 years (where there has been offshore non-compliance by an individual or partner) or 20 years (where there has been fraud). The definition of “discovery” for the purposes of the 4 year window is generously wide. Again, this makes sense in a paper world in which a human being would have to physically look at something. And it might well take 4 years for an overstretched tax official to put their mind properly to a paper return. But is that still necessary today, when online systems can pick up irregularities automatically and flag these to an inspector? There is nothing stopping HMRC from opening an enquiry every time an issue is flagged up on its system after all.

These issues and many others would seem appropriate for consideration in the 21^st century. The shame is that it is not clear how these issues can get an airing in the consultation. Though perhaps like the stretched approach to “discovery”, the call for evidence questions can be generously interpreted to accommodate such a conversation.

We all love a debate about corporation tax – or at least about corporate tax policy.

But debates and arguments about theory, concepts and policy can be aided by a practical understanding of the mechanics of computation. Two examples should operate to help elaborate on this point: Business Rates and the Diverted Profits Tax.

First things first, corporate “profits” are an artificial construct. Unlike real receipts or payments, one cannot “see” taxable corporate profits – they are a computation; a result of the deduction of allowable expenditure (note: not all expenses incurred in deriving a profit are deductible – many items of capital expenditure will not qualify for full expensing) from receipts derived from sources which are taxable (note: not all sources are taxable, such as gambling winnings in the UK); where the receipts and payments may themselves be artificial (consider attribution on the basis of market value; or cost-splitting arrangements which must be conducted at arm’s length). The relationship with accounting meanwhile cannot be ignored in that, depending on the jurisdiction, deference may be given ultimately to an accountant’s computation of the figure for profits (as in the UK). But accounting standards similarly are not free of value judgments!

Understanding that profits are a computation concerning the relationship between receipts and payments (real and hypothetical, and influenced by political choices about what to recognise) unmasks the fact that there are other possible ways of taxing corporations. Some propose that in the case of a multinational enterprise which is formed of a group of companies, profits could be diviied up between States on the basis of a formula. Others more radically suggest taxing corporations on a cash-flow basis – tax the sales minus certain deductions for certain expenses.

Aside from the potential for reform however, the computational nature of profits highlights that corporations may already be taxed on bases which are not “corporate profits” and, most intriguingly, these taxes may reduce the taxable corporate profits.

Such taxes should cause some pause for thought given their implications for the allocation of corporate profits – they sneak under the radar and can be significant in terms of quantum.

Business Rates in England provide a good example. These are charged on businesses which carry on activity in non-residential property. Others may query pedantically whether Business Rates are a tax – given that they are not labelled a tax and the benefit to operate in a locale is granted in return – but it is levied by central government, it is payable in cash, it is compulsory and the rates are out of all proportion to the benefit granted. Moreover, HMRC includes it in its breakdown of the contribution of different taxes to the Exchequer.

Business Rates for the year 2019/20 raised £29bil. For comparison, Corporation Tax raised £50bil. This comparison reveals that, relative to corporation tax policy, too little intellectual energy has been spent on business rates. More importantly however, the two figures are not unrelated. This is because the payment of Business Rates reduces corporate profits (it is an allowable expense) so the figure for Corporation Tax would be higher if Business Rates were not charged. Given the impact on corporate profits, Business Rates will necessarily reduce the quantum of dividends that could be paid to companies resident in other jurisdictions. In this way, Business Rates impact the source/residence distinction that operates at the international level.

The Diverted Profits Tax in the UK operates in a similar way – for those caught by it, the “tax” is deductible against corporate profits. However, this is only useful for those companies that pay corporation tax in the UK (i.e. resident companies or those with a permanent establishment). Thus, the tax in the way in which it operates discriminates between domestic and foreign companies, and that is before one even needs to consider, as Mason and Parada do, the manner in which the thresholds for being caught by DSTs operates, the types of activities caught and the intention behind DSTs (which combine to render DSTs discriminatory).

Consider in turn also how Business Rates are calculated. They rely upon a valuation of the property – and that valuation is undertaken by the Valuation Office Agency (VOA), an agency within HMRC. So what if the VOA undervalues a property? In that case, a taxpayer gets an advantage over competitors. Presumably this is something that ought to have concerned the European Commission (whilst the UK was a Member of the European Union) by virtue of this advantage amounting to State aid. Presumably too it should be a concern under the new “subsidy” regime in the Trade and Cooperation Agreement between the UK and the EU.

The lessons that can be taken away from examining computation in respect of these examples? First, Corporation Tax and Business Rates do not operate independently and thus the headline figure for Corporation Tax receipts would be higher in the absence of Business Rates. Secondly, Business Rates, though a tax in England, does impact other countries. Thirdly, “unseen” taxes like Business Rates can be a means of providing subsidies to taxpayers and this ought to be watched by relevant oversight bodies. Fourth, the manner in which the UK DST operates serves to further the argument that it is discriminatory.

Thus, if we care about corporation tax, we should care also about computation.

My 15,000word article on the State aid tax ruling cases (forthcoming for a long time now) has finally been published in the April Issue of the Law Quarterly Review and is available on Westlaw.

In the article, I argue that the central issue in the cases is whether the tax authorities of Belgium, Gibraltar, Ireland, Luxembourg and the Netherlands misapplied the relevant tax laws. In turn, I suggest that this is the wrong starting point and instead the focus should be on, essentially, the propriety of the tax authorities actions. Whether a selective advantage has arisen then first depends upon whether the tax authority has acted in a way which would be considered unlawful as a matter of domestic administrative law. This shifts the focus away from figuring out correct transfer pricing or other complex tax calculations to matters that we are ultimately concerned with, such as whether the tax authority has deliberately colluded with a multinational in order to give it a tax break, or has had the wool pulled over its eyes, or has failed to follow its own processes to ensure parity of treatment between taxpayers and so on. Only once unlawfulness has been demonstrated do we then have to consider also whether there has been a misapplication of the law.

I make it clear in the article that this does not mean that the Commission should lose the tax ruling cases. Indeed, I apply this new approach to the Apple case and find reasons for thinking that the Revenue Commissioners breach Irish administrative law.

Instead the advantages of my approach lie in respecting the role that tax authorities play and providing a clear framework by which the Commission can then allocate its resources to investigating past tax rulings (rather than having it assume accidentally the role of a supranational tax authority). My approach also would allow the Commission to investigate not just those cases where a tax authority has positively provided favourable assurances to taxpayers but also where it has failed, without good reason, to properly investigate or challenge the tax returns of multinationals.

If you wish to receive a copy (but do not have access to the Law Quarterly Review on Westlaw), please email me at stephen.daly@kcl.ac.uk

A longer blog on the article has been published on the UK State aid Law Association’s blog.

King’s Law Journal will be publishing a special issue on the COVID-19 Pandemic in 2021. I have contributed a short piece to the issue entitled ‘The Rule of (Soft) Law’, the abstract for which reads as follows:

“The COVID-19 pandemic has forced governments around the world to become innovative in how they carry out their functions. In particular, they need to respond speedily to developments as the scientific evidence evolves. Rules for regulating conduct accordingly need to constantly evolve. The ‘golden met-wand’ of law, to adopt Lord Coke’s phrase in the Case of Prohibitions, is not particularly well-tuned to assist in such regulation other than at a level of generality.

It is unsurprising accordingly that governments have had to ‘supplement’ legal provisions with soft law. There is nothing novel about this – public authorities have long been in the business of helping people to understand the law – but it does raise important questions about the nature of domestic soft law, what role it should play and whether the UK government’s use of it during the period of the pandemic has been appropriate.”

I have posted a version of the article to SSRN. Any and all comments will be greatly appreciated.

Spurred on by reading a stimulating and engaging paper by Jeremy Bearer-Friend (in which the author considers means by which non-cash payments could discharge tax liability), I have begun to muse on the idea of tax being a civic right and responsibility, like voting. Now the parameters for exercising the “right” to pay tax may not be as broad as the right to vote (though cf. compulsory voting), in that one cannot choose whether they must pay tax (if it is due). There is nevertheless some scope for choice: even before considering whether individuals should choose a less or more favourable interpretation of ambiguous statutory language, there are a range of express options available to taxpayers in the tax code which they may legitimately choose (e.g. capital allowances; loss-relief etc). The responsibility to pay tax, when viewed as a civic right, is one which is principally collective in nature – like the responsibility to vote. It is an instance where “we all must play our part” for the benefit of the community in which we find ourselves.

When viewed in this light, the civic right to pay tax is justified on the basis of the benefit principle – the idea being that tax must be paid as a result of the benefit that one has drawn from being a member of the community. That is lesson number 1.

Lesson number 2 is that the right can find its origin in something inherent – such as nationality or citizenship – or it can be acquired – through some relevant link such as economic nexus or time spent.

When these two lessons are applied to cross-border activities, it helps us to understand that it is no defence to double taxation to suggest that one should be taxed in only one place – at the margins there will be instances where one has the right to vote in more than one place, just like the right to pay tax. That does not of course detract from the fact that double taxation can be condemned for other reasons – such as that it is discriminatory, or it may result in disproportionate taxation when totalled up, or that it can disincentivise investment. But is cannot be condemned on the basis of the benefit principle.

These lessons help to articulate also why tax avoidance, and even more so tax evasion, are deemed to be undesirable activities in principle as they undermine the responsibilities that are owed to the collective. Few would be surprised by this revelation, but we can have more fun with the lessons than that. A parallel can be drawn between those who seek to manipulate the way in which people vote through targeted, misleading ads and the advisors who mislead unsophisticated taxpayers into engaging in tax schemes. For the same reasons and with the same force that we criticise organisations like Cambridge Analytica, we can condemn these advisors.

These lessons can be applied more generally in terms of understanding the relationship between the taxpayer and the State at a national level – illuminating issues such as privacy over one’s tax affairs – and it seems to me to be an avenue worth exploring in more detail with reference to more substantive case studies. It is certainly worth more musing when I have the time.

On 7 September, a lengthy case note considering the GCEU’s long awaited decision in the Apple case from Professor Ruth Mason of the University of Virginia and myself was published in both Tax Notes Federal and Tax Notes International. It may seem strange that the same article has been published in two different journals of the same publisher, but Tax Analysts (the publisher) deemed the article to be relevant to its different readerships hence putting it before its readers interested in federal tax matters and international tax matters.

In the article, which follows seven excellent articles from Ruth Mason about state aid published in Tax Notes (all available on Ruth Mason’s SSRN), we dissect the Apple judgment. Thereafter we consider its implications for state aid analysis and use of the arm’s-length standard. We also consider the drawbacks of using state aid to prevent corporate tax abuse as well as the broader implications of the case. This article is now freely available on SSRN here.

A few weeks ago, I gave an interview to Tax Notes about the Apple state aid case. The podcast is available here and the transcript is available here. Professor Ruth Mason from the University of Virginia also features.

In the interview, we both give our two cents on what went wrong for the European Commission and the implications of the decision. We also recently co-authored a lengthy case note on the Apple decision which will soon be published in Tax Notes International and in which we go into much more granular detail on the case.