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Ethics and Governance

A recent ICS survey has identified a serious gap in board members’ oversight of cyber-resilience. Bob Semple analyses the data and explains the practical steps board members can take to better protect their organisations. When it comes to cyber resilience, boards members’ lack of capability and confidence is undermining their ability to do their core job: directing and overseeing. That is the conclusion of a recent Irish Computer Science (ICS) survey of board members of Irish organisations (many of whom are Chartered Accountants). And when cyberattacks today are potentially as destructive as major natural disasters, that’s bad news. The ICS survey was undertaken to determine how well-protected Irish organisations are. What was found makes for sobering reading: one in three board members have received no cyber training in the last year; less than two in five have been properly briefed on cyber developments; an alarming three quarters have never participated in a test of their board’s cyber incident response plan (if it even exists); as many as one in six had no Statement of Risk Appetite at all, let alone one that properly reflected the board’s attitude to cyber-resilience; and one in ten respondents confessed they had never briefed staff on the importance their board attaches to cyber-resilience. 'Noses in, hands-off' (but check!) Good governance requires boards to adopt a 'noses in, hands-off' approach. But, as case law has reminded us, this does not absolve the board of its responsibility to ensure that tasks delegated to management are completed to their satisfaction. For their part, management must be able to identify: the assets they are trying to protect; the key risks affecting them; the controls that appropriately mitigate those risks; and the plans that enable the organisation to bounce back from an attack. The smartest organisations realise that they are past the point of being always able to repel the bad actors. Instead, the goal is to ensure that companies can recover quickly and effectively from a successful breach of defences. The ICS survey revealed serious gaps in each of these links in the chain of defence against cyberattacks. Assurance Increasingly, board members are asking: Where am I getting assurance about risks, controls and resilience? How valuable is that assurance? Is it sufficient for me as a board member? What other assurance should I be seeking? The ICS survey revealed that one in three respondents have never obtained formal assurance from management on these issues. Furthermore, only half of respondents said that they had obtained assurance after independent testing by a third-party. Practical guidance Cyberattacks are increasing in number, sophistication, and impact. Board members need to ask more questions, strengthen their defences, and get more assurance to ensure that their organisations are cyber-resilient. You can find the report – with details of the practical steps board members can take - here: www.ics.ie/cyberresilience. Bob Semple is a Director and Governance Consultant.

Nov 13, 2020
Ethics and Governance

Kieran Moynihan explains how boards, and non-executive directors, in particular, can optimise decision-making during times of crisis.A veteran non-executive board director (NED) recently shared valuable insights into the workings of an experienced board dealing with the severe impacts of COVID-19 on the organisation. While this is quite an experienced board with battle-hardened veterans in both the executive and non-executive ranks, he indicated that they collectively struggled with the enormity of the challenge facing the organisation.While the board was quite mature in terms of risk management and business continuity planning, several significant decisions were required in a very short time frame. He was extremely complimentary of the efforts, understanding and commitment of the employees to the organisation as well as the outstanding leadership shown by the CEO and executive team. He also highlighted how much the NEDs “rolled up their sleeves” and provided great support in reviewing, challenging, and providing valuable input to the crisis management plan. He highlighted that the CEO witnessed a “new side” to the board whereby it demonstrated a huge commitment not only to the organisation, but in supporting the CEO and executive team as they implemented an elaborate crisis management plan under severe pressure.Unfortunately, some boards have not performed as well during the crisis. The core problem, I believe, is often the calibre of board members. Some are not strong enough to cope well in an emergency to add any strategic value to the executive team. This scenario continues to play out in boards across the world where, in some cases, board and executive teams have faced existential challenges in terms of their organisation’s survival. Amid the devastating impact on employees, an organisation’s financial health, and its shareholders and stakeholders, boards must stand up and be counted like never before.The following definition of crisis management from Deloitte caught my eye recently: “Crisis management is a special, strategic discipline that enables an organisation to leave ‘business as usual’ behind, and to enter a different mode of governance and operations, designed to get decisions made, implemented and communicated quickly, with clear – but different – designated authorities.” While a board has many broad types of responsibilities, the fundamental duty of a board is to make significant decisions. At a time of extreme crisis management, this acute responsibility comes to the fore. It represents a real test of a board of directors in terms of its calibre, decisiveness, effectiveness, judgement, and performance. The following factors can help a board optimise decision-making in the eye of a storm.Quality informationThe brutal reality of the COVID-19 crisis is that major decisions must be made in compressed time frames of days or, in extreme cases, hours. Many of these decisions have serious consequences for the organisation and its employees, customers, shareholders, and stakeholders. Board chairs have a critical role in enabling the board to overcome these compressed review/decision cycles and drive coherent and decisive decision-making.In normal times, quality information is the lifeblood of a board in terms of significant decision-making. In times of crisis, however, it is challenging for the CEO and executive team to create comprehensive board packs when you may have just 24 hours before the next virtual board meeting. In this context, quality is more important than quantity in terms of helping the board understand the logic behind significant proposals from the CEO and executive team.While not ideal, firefighting CEOs and executive teams rely heavily on gut instinct to choose from what appear to be radically different options. It is essential to provide the NEDs with your gut instincts and blunt assessment of the pros and cons of each option.Challenge, debate, and oversightWhen the stakes are high for significant board decisions, the board must maintain the highest standards of challenge, debate, and oversight. A CEO and executive team under severe pressure could undoubtedly get a big call wrong or struggle to create a coherent proposal for consideration by the board. Despite the challenging time frames for decision-making, NEDs must prepare for board meetings, ask hard questions, and add genuine value (in some cases, by identifying additional options or variations/combinations of options that will help the executive team see the wood from the trees).The board chair has a vital role in balancing the level of challenge, debate, and oversight with supporting the CEO and executive team. Genuine board diversity has been a very positive strength for boards as the broader range of thinking styles has enabled greater left-field thinking and more creative problem-solving, while significantly reducing the potential for group-think. At such a crucial time, shareholders, employees and stakeholders rely heavily on NEDs to provide such critical challenge, debate, and oversight to reach the best decisions.The trust equationThe COVID-19 crisis is testing the bonds in many board teams. In such fraught times, tensions can morph into damaging conflict, which boards can do without. While some high-performing board teams have managed this challenge in their stride, this crisis has also galvanised many board teams around a common purpose.A crisis of this magnitude shines a bright light on the ‘trust equation’ of a board. It can be challenging in such a volatile landscape, with so much uncertainty in each sector, to make concrete decisions. Decisiveness, however, is nevertheless a vital trait for a board in crisis management situations, and it is much more effective when the trust quotient is high. In order to strengthen trust, boards can extend a greater degree of latitude than normal to the CEO and executive team, enabling them to provide timely, insightful updates back to the board on the progress of major decision implementation.Changing courseOne of the most challenging aspects of the crisis for many company boards has been facing up to the requirement in specific sectors to make significant changes to the company’s business model and strategy. For companies that had a dominant market position for many years, it can be challenging to face up to the reality that the market has changed, customer requirements have changed, and in some cases, barriers to entry have been lowered with disruptive new technologies.'Independence of mind' is a critical quality in a NED whereby the board director who is not involved day-to-day is able to step back, take a cold, objective view on the organisation’s position, assess the options and implications of a major proposal being put forward by the CEO and provide a sound independent judgement. In this scenario, where an organisation is facing severe challenges to its existing strategy and business model, independence of mind in the NEDs plays a critical role as it can help the board and executive team face up to and address severe challenges to the existing strategy. Some boards might hope that everything will go back to normal but, for most sectors, things will never be the same. As a result, the organisations that adapt will stand a much higher chance of thriving in the years ahead. Throughout the crisis, I have seen several progressive NEDs utilise this time as an opportunity to evolve the overall mindset and level of ambition in the organisation. NEDs are ideally placed to catalyse this evolving growth mindset as in the majority of cases, the CEO and executive team are in firefighting mode and struggle to have the bandwidth to think strategically and grasp the growth opportunities that the organisation could be presented with.External expertiseWe are in uncharted waters in terms of crisis management. As a board gears up to make big decisions, it is vital that, where appropriate, key shareholders and stakeholders are consulted. They will be forced to live with the consequences of the board’s decisions for years to come.Besides the fact that this is the right thing to do, engagement builds support and is formally required in some instances. It will also provide valuable feedback that, in specific scenarios, may be incorporated into the board’s thought processes.It is also vital that, where needed, external expertise is sought to assist with significant decisions. This might be an existing advisory partner who understands the organisation and sector, or an independent sector expert who could provide an objective assessment of the options.Avoid ‘all-in’ decisionsI play chess at a competitive level, and one of the things you learn as you get more experienced is to avoid, wherever possible, making very committal decisions. This is particularly important when the chessboard is ‘on fire’ with severe complications, and it is simply not possible to calculate the variations. Instead, you seek to stay in the game and get through the next few moves. As the board position becomes clearer, you then make a more committal decision as you execute your plan.The COVID-19 crisis is changing by the hour. As governments struggle to balance the resumption of normal life with the associated public health risks, it is tough for the majority of boards to accurately predict how their sector will look in three months, not to mention one year from now. In some cases, companies are being forced to consider severe changes to their business model. Boards should avoid making premature decisions based on assumptions about how the COVID-19 crisis will influence customer behaviours, business models, and the overall business landscape. Like a game of chess, boards would be wise to develop a range of scenarios linked to the public health and associated economic impacts with appropriate trigger points.Understand the broader impactsAt the start of the year, many boards had made significant progress in increasing their focus on environment, social and governance (ESG) goals, employee engagement, and ‘doing the right thing’ in terms of focusing on the long-term, sustainable wellbeing of the organisation. This has since been severely tested in how boards signed-off on significant decisions impacting their employees, customers, and stakeholders.In some cases, the COVID-19 crisis is undermining much of the significant progress made with decisions favouring short-term shareholder interests at the expense of employees, other stakeholders, and the long-term sustainability of the organisation. Throughout the world, employees have demonstrated incredibly strong commitment and understanding to their organisations and customers. How boards respond to this commitment says a lot about the character, culture, integrity, and values of an organisation. It is encouraging to see a significant number of institutional investors highlight the importance of this for their portfolio of listed companies. In many respects, we saw ESG at its very best in the first few months of the crisis with so many employees and organisations stepping up to help society in its time of need.I strongly believe that the organisations that commit long-term to the core ESG principles of sustainability, partnering with their employees, going the extra mile for their customers and “doing the right thing to ensure the longer-term interests of the organisation” will be the organisations that flourish and thrive going into this uncertain future. The board has a critical leadership role in this. We are moving into an era where progressive boards are evolving into a far more thoughtful balancing of the interests of shareholders, employees and stakeholders. The COVID-19 crisis has crystallised the importance of this multi-stakeholder engagement model and is now firmly in the mindset of customers, prospective employees, partners and investors when they consider engaging with organisations.ConclusionSeven months on, boards continue to grapple with COVID-19 and struggle to make some of the most significant decisions ever made in the history of their organisation. Even the strongest, most high-performing boards struggle to get this right, so for any board members struggling right now, you are not alone.This is a time for board teams to pull together and work closely with the CEO and executive team. Through challenge and debate, you will collectively make the best decisions possible and help your employees, shareholders, and stakeholders envision a path to better days ahead.Key takeaways for boards and non-executive directorsAt a time of such crisis and volatility, it is vital for the board to regularly discuss what is happening with your customers, how the crisis is impacting them, how their requirements are changing both short-,  medium-and longer-term and how the organisation needs to adapt to support your customers.It has never been more vital for the executive reporting to the board to be high-quality, succinct and utilising executive summaries to enable the board members to prepare effectively for the board meeting and assist in the creation of a meeting that can focus on strategic and “move-the-needle” type discussions.Balance cost-cutting, productivity and risk mitigation with supporting innovation-led growth and strategy and business model shifts where needed.Be aware that boards are moving to agile approaches to strategy and budgeting using scenario planning and triggers that work better in situations of high uncertainty such as the ongoing COVID-19 crisis.Organisations, as they facing their greatest crisis, have never had such a strong requirement for board members to demonstrate a great work ethic and commitment to the board and organisation.Kieran Moynihan is Managing Partner at Board Excellence, which supports boards in Ireland, the UK and mainland Europe.

Sep 30, 2020
Thought leadership

Originally posted on Business Post 23 August 2020.Vague calls for better corporate ‘citizenship’ won‘t help us get through the pandemic – enforcement of the regulations will.A company is nothing more than a legal structure which happens to be treated for many purposes – including taxation – as if it were a citizen.At the time of the last financial crisis, it became commonplace that left-leaning civil society, academics and charities would call for business to become more socially responsible. Tax compliance was a favourite topic, with little regard paid to the existence of enforceable rules to ensure tax collection. Instead, the underlying notion seemed to be that companies, in particular, should act like citizens in some way and go beyond what is merely required under the law.These calls are being made again in the context of the response to the pandemic, but they ring hollow when they are made without reference to the hard facts of enforcement and accountability.Companies are not citizens, at least not in the normally accepted sense of the word. A company is nothing more than a legal structure which happens to be treated for many purposes – including taxation – as if it were a citizen. Nevertheless, in common with all citizens, companies have obligations to stay on the right side of the law.The latest raft of measures in the July Stimulus plan ensure that companies and businesses generally will have to have tax clearance certificates to avail of the employment wage subsidy scheme (EWSS). The new EWSS replaces the temporary wage subsidy scheme (TWSS). While having this certificate is a new requirement, there is nothing new about the tax clearance process. A tax clearance certificate provides evidence that a company’s tax affairs are up to date. Publicans have needed these certificates for years in order to get their licences, as have businesses tendering for government contracts. Even our TDs need tax clearance certificates to sit in Dáil Éireann.The tax clearance process also helps ensure that one arm of government knows what the other is doing, as mismatches can lead to embarrassment. Most people are uneasy about government funds flowing to people who are not paying their taxes. In common with many Revenue procedures, it is highly automated, and the tax clearance status of any business can be verified online. Nevertheless, this new requirement will be a challenge for quite a few businesses wanting to claim the EWSS.It is estimated that there are some 16,000 employers currently claiming the temporary wage subsidy scheme who will not have tax clearance certificates and must apply to Revenue for them. Clearance is usually a straightforward process, but these are not straightforward times.For instance, late payments of PAYE or Vat would normally have disqualified a business from being eligible, but late payments were in many cases permissible in recent months as tax debt is being warehoused, so this should not be a problem. There is, however, increased bureaucracy associated with the EWSS when compared with the TWSS. However unwelcome, these additional controls may be necessary.The tax clearance certificate requirement has a broader significance. Businesses that shirk their tax obligations give themselves a competitive advantage, perhaps because their wage bills are lower if they don’t fully account for PAYE, or perhaps their margins are greater because they don’t properly account for Vat.Similarly, businesses that shirk their responsibilities under the coronavirus restrictions by failing to provide adequate protection for staff and customers, by not making sure that their premises have been properly cleaned and reorganised or by not providing adequate training, are conferring on themselves an unfair competitive advantage.There is little enough evidence to date that this has been the case. Yet, as the pandemic and our responses to it drag on, familiarity with the virus will lead to contempt and the temptation to cut corners will grow. The tax clearance certificate is evidence of just one aspect of good corporate behaviour which must be sustained as long as the EWSS is being claimed.Good corporate behaviour on a continuing basis for all the measures to tackle the pandemic and not just for taxes will be ever more important. Should a belief emerge that compliance with coronavirus restrictions puts individual industries at a competitive disadvantage, the current broad acceptance of the rules could collapse.The message that it makes good commercial sense to be fully compliant with restrictions on movement will get progressively more difficult particularly as we enter into the autumn months. Enforcement of coronavirus restrictions will become increasingly necessary. The headline events of recent days such the resignations of the chairman of Fáilte Ireland, of the Leas-Cathaoirleach of the Seanad and of the Minister for Agriculture, however unfortunate, are vital elements in the messaging.This is why vague calls for better corporate citizenship or for businesses to “do the right thing” should be treated with some suspicion. Appropriate corporate behaviour is about businesses and companies obeying the law, however difficult, at the time of pandemic restrictions. There must be no commercial advantage available by failing to apply the rules. That in turn means there has to be enforcement. Anything else is just grandstanding.Dr Brian Keegan is Director of Public Policy at Chartered Accountants Ireland.

Aug 31, 2020
Thought leadership

 Originally posted on Business Post, 2 August 2020.Increases in VAT usually pass the acid test of tax policy – the extraction of the most amount of money with the least amount of complaint.  Compared to an income tax increase, the general population rarely gripes about increases in VAT rates.  Hiking the standard rate of VAT of 21% to 23% in 2012 generated hardly any noise compared to the introduction of USC and the reduction of allowances and credits the previous year.  So will people really notice the VAT decrease of 23% to 21% in the July Jobs Stimulus? VAT is a truly European tax in that the rules are devised in Brussels and then implemented in EU member countries.  It is Brussels that decides that the maximum rate of VAT cannot exceed 25%. .  European rules tell us that a box of teabags is charged 0% VAT, but a cup of tea in a café is charged 13.5% VAT while a tin of iced tea in the supermarket is charged 23% VAT.  There’s little enough any Irish government can do to tinker with the VAT system, except make marginal rate adjustments. VAT is a major contributor to the Irish Exchequer.  In 2019, over €15 billion was collected in net VAT receipts which is more than one quarter of the total tax receipts for that year, yet it is a notoriously blunt instrument of public policy.  No VAT is charged on the clothes of the children whose parents are on social welfare, but no VAT is charged either on the clothes of the children of high earners.  Maybe that’s why governments avoid using it for public policy purposes unless you include the now defunct 9% rate of VAT for the hospitality sector.    So it was all the more surprising that the July stimulus knocked two percentage points off the main VAT rate.  The cost of this measure is €440 million, which is a little less than 10% of the total value of the package.  This estimate for the cost of this six month VAT reduction period is in line with Revenue estimates for good years.  In a moribund economy the Department of Finance seems to expect a spending spree.  Remember too that the 23% rate only applies to about half of the items or services we buy.  The rest are charged at lower rates or are exempt. Outside of the retail sphere, the education sector and the banking sector pay sizeable amounts because their activities are largely VAT exempt.  These sectors cannot recover the VAT they pay on purchases because they don’t charge VAT on their sales.  In the main VAT is therefore a consumption tax ultimately falling on the consumer.  So will the VAT reduction boost sales of clothing, alcohol, electrical and other household goods and luxury foodstuffs which fall into the 23% VAT category?  It might not, even if businesses pass on the VAT rate reduction to their customers.  Despite suggestions otherwise from some political quarters, Minister for Finance Paschal Donohoe was quite clear that the 2% reduction should be passed on to consumers.  That's not going to make a huge difference for many items because the value of a 2% VAT reduction approximates to about €1.60 for every €100 spent.  It only becomes a different story if you go out to buy a big-ticket item like a car, where the VAT saving could perhaps insure it for a year. There is no law obliging traders to reduce their prices because there has been a reduction in the VAT rate.  As long as they charge the correct amount of VAT at the correct time, they can take whatever margin they wish.  Past history however suggests that small VAT reductions like the current 2% reduction tend not to get passed on to consumers.  Part of the rationale when the 9% rate of VAT on hospitality was introduced was that a full 4.5% reduction to the normal 13.5% rate would be visible and palpable and therefore consumers would expect to see the difference.So even if it is passed on, a 2% VAT reduction may be inadequate to drive additional volumes of consumer spending.  In terms of business benefit it might have been better to apply the projected €440 million cost towards reducing the vast amounts of VAT debt currently being warehoused against the day when businesses can finally pay their tax liabilities.  Given that the EU state aid restraints are temporarily lifted, that €440 million could have been targeted, for example, specifically to forgive some of the historical VAT due from the SME sector.  The July Jobs stimulus was good.  Ministers and their officials alike did well to deliver what in effect is a full scale national budget in the space of few weeks.  The purpose and rationale of many of the measures like the extension of the wage subsidy, the extension of the pandemic unemployment payments, and the extinguishing of commercial rates is readily apparent.  The object of this VAT reduction is not as clear. I've never seen a tax reduction I didn't like.  However, many consumers may not notice this tax reduction and many businesses could benefit more from this element of the jobs stimulus if the cost of the VAT reduction was diverted to reducing their current and not their future tax debts.  Dr Brian Keegan is Director of Public Policy at Chartered Accountants Ireland

Aug 13, 2020
Thought leadership

 Originally posted on Business Post, 26 July 2020.Deadweight is what economists call money that is spent to stimulate activity which would have happened anyway.  No need of any such concerns over the July jobs stimulus package announced on Thursday.  The need is so great that any money pumped in by the government in any direction is going to realise some benefit.  The trick now is to maximise it.Some of the negative responses towards the stimulus package measures look a bit tired and frayed.  The last time we had an emergency stimulus like this was back in May 2011 which brought in the 9% VAT rate for the hospitality sector.  That new 2011 government had been formed in early March, yet it took a full two months to start dealing with the employment crisis prompted by the banking collapse.  Things move faster these days so we need to move on from rear-view mirror economics.  We won’t ever revert to a 2011-style economy but neither can we go back to 2019 methods of doing things.It is clear that government looked to some international experiences when pulling together the bundle of measures.  Using the tax system to deliver relief works well and has been the pattern in several developed countries.  Extending the temporary wage subsidy scheme, even if it is no longer called that, is effective because of the speed of delivery of relief.  The Employment Wage Support Scheme now could cover a greater number of people because the employment reference point of 28 February is no longer sacrosanct.  Its duration, extended up to April of next year, provides yet a further reason for employers to hang on to their workforce.  There had been some suggestions that it would morph into an even more effective arrangement modelled on the German Kurzarbeit system where the government pays salary for the unworked time of employees on reduced hours.  However, the social welfare system in Germany is radically different to ours.  In Germany, almost 40% of a worker's wage goes to the government in social security before any income tax is paid.  In Ireland total PRSI contributions on employment top out at just over 15%.  The Employment Wage Support Scheme in its current shape may be as good as the country can support, because there is zero capacity in the economy to increase taxes in any form.  Every measure in the package needs to be seen in the context of what can be sustained.Any critiques of the jobs stimulus package based on the notion that things will return to 2019 economic status are misguided.  The business models for tourism, the hospitality sector, the entertainment industry and education have changed fundamentally, and might never revert to pre-coronavirus methods of earnings and delivery.  Take professional training for instance.  The technicians supporting the webcasting of classes and online invigilation of examinations will become just as important in the future as the teachers and exam markers were before coronavirus.  It may well turn out that the best elements of this package will be the restart grants to help businesses remodel their premises and service delivery, and the reskilling and apprenticeship programs.  The July jobs stimulus is not without its flaws.  Before the crisis, 330,000 citizens in the total workforce of 2.3 million were self-employed.  The pandemic unemployment payment was an unprecedented gesture towards this cohort of workers.  It was the first time that the State had offered the self-employed unemployment support to this extent.  Although it is being extended to April next year the payments are to be tapered back.  The new income tax reliefs to recover tax paid by the self-employed in happier years is a form of grant, but this assumes that their business was well established and profitable before the virus struck.  Timing is also an issue.  Reducing the VAT rate from 23% to 21% should help retailers manage cash flows, but it could also prompt consumers to delay the purchase of big-ticket items until the cut takes effect in September.  In the past, VAT reductions have been reversed by government in short order because retailers opted to allow the reductions add to their bottom line rather than benefit the customer.  This reduction is time bound, so there is no commercial penalty for not passing on the reduction.Without consumer confidence the stimulus could yet fail.  People need to be comfortable where they shop, where they eat, where they stay, how the travel and where they socialise.  Re-starting a business is not just about reopening doors.  Just as government looked overseas for ideas, consumers are well aware of the consequences of poorly managed reopening in cities as diverse as Leicester and Barcelona.We won't know for a while whether the balance between grants and loans is correct, whether we have done too much for employees at the expense of the self-employed, whether the measures can be implemented with sufficient speed and whether they will generate sufficient confidence in the consumer market.  The stimulus measures must be monitored as rigorously as NPHET monitor the impact of public health measures and adjusted as necessary to ensure they are working. Just as we are right to be concerned about a second wave of coronavirus infection we cannot afford a second wave of economic collapse.  This collapse can be avoided if we focus forward.  Let’s not try to re-model our economy back to how it looks in the rear-view mirror.Dr Brian Keegan is Director of Public Policy at Chartered Accountants Ireland

Aug 06, 2020
Thought leadership

 Originally posted on The Business Post, July 19, 2020.On the face of it, Ireland won the Apple case last Wednesday.  The General Court of the European Union held that Ireland was not in breach of EU state aid rules in the manner it had taxed Apple entities in this country.  Some political noise following the ruling had to do with the €13 billion of tax that the Exchequer “lost” as a consequence of the ruling.  This is nonsense.  The €13 billion never belonged to Ireland, because Irish tax law doesn't work that way for anyone, let alone Apple.  The tax rules for the profits which are subject to Irish tax existed long before major multinationals came to our shores.  The Commission's case against Ireland hinged around their misreading of the way Irish tax law operates, and the General Court confirmed that the Commission had indeed got it wrong.  The Revenue Commissioners were also winners.  The Apple case differed from many other state aid cases taken by the Commission in that the focus of the examination was how Irish officials applied the law of the land, and not on the state aid compliance of the law itself.  The judgment is not an undiluted victory for Revenue.  The court cited problems with the methodology applied in calculating the tax liabilities involved.  They talked about there being insufficient documentation being retained.  The judges though allowed common sense to prevail and recognised that an absence of paperwork in itself is insufficient to prove that there was a problem.  Of the scant paperwork which did exist and was discussed in the ruling, one item seemed to suggest that promised employment levels might have a bearing on corporation tax arrangements.  This was worrying from the Irish viewpoint as it highlighted a point of general unease among European institutions about the way Ireland conducts its tax affairs.  Nevertheless the court found that the Commission couldn’t argue that job creation was a factor in the case.There is an assumption in some quarters that the Commission will take this week’s decision to appeal.  To what end?  Though it may feel to them like a pyrrhic victory, the Commission’s entitlement to look at tax issues when it comes to challenging state aid rules was confirmed by the court ruling.  This entitlement, along with the entitlement of national officials to apply domestic law as best they see fit, may well be the only enduring lessons from the Apple case.  The world has changed since 2016 when the Commission first issued its findings against Ireland.  The tax point at issue in the Apple case is no longer an issue, resolved neither by Irish legislation nor by European Commission activity but by changes in US tax law.  The US Tax Cuts and Jobs Act of 2017 cancelled out the strategy of deferring tax on profits of US multinationals earned outside the US by keeping those profits outside the US.  It is not just the US system which has moved on.  The underlying rules of the global corporation tax collection system were created over a century ago.  Now the concepts of company management and control as factors in deciding where tax is paid (and which helped give rise to the Apple conundrum) are the focal point for the international corporation tax reform agenda led by the OECD.  It is hard to see how additional Commission challenges in the Apple case could further that agenda.The Commission should therefore now be looking forward and outward, rather than pondering whether it should be appealing the General Court’s decision.  Anyone who has read the written verdict will be struck not just by how considered and detailed it is, but also by the amount of time and effort taken up by the case from all parties.  All this time and effort could be better applied elsewhere.  Not only that, the European Treaties stipulate that a further appeal can only be on a point of law, which may be difficult given that the outcome was largely determined on the facts.  Losing an appeal on a point of law in a case this big holds significant political risks for the Commission.Giving evidence to the House of Lords last month, the EU's chief Brexit negotiator Michel Barnier underlined the importance of the single market in the context of an ever more disrupted and unstable international trading environment.  Regulating state aid is an internal management problem for the European Union.  Commission resources should now, as Barnier has highlighted, be devoted towards securing Europe's place as an international trading bloc and not fighting internecine tax wars with its member countries.  Future history books will note the Apple case as one of the last tests of an old corporation tax system before it became displaced by a new regime involving where companies generate their sales as well as where they generate their value.  That change will present challenges for small countries like Ireland where the capacity of companies to generate profits here is not matched by the size of the domestic Irish market.  We will have to secure wins as this change is developed if the corporation tax yield is to be sustained.  God knows, we've had plenty of practice fighting our corner in the international tax debate.Dr Brian Keegan is Director of Public Policy at Chartered Accountants Ireland

Aug 06, 2020

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