Accountancy

Apple State Aid Case. Taxes Ireland. EU Taxes. Irish Branch and Subsidiary

Today, in a statement issued by Vice President Margrethe Vestager, the European Commission confirmed that it will appeal the judgment of the General Court of the European Union in the Apple State aid case to the Court of Justice of the European Union.  On 15th July 2020, the General Court of the European Union found that no State aid had been given by Ireland to Apple and that the Irish branches of Apple had paid the correct amount of tax due under legislation.

Vice President Margrethe Vestager stated that

“the General Court judgment raises important legal issues that are of relevance to the Commission in its application of State aid rules to tax planning cases. The Commission also respectfully considers that in its judgment the General Court has made a number of errors of law. For this reason, the Commission is bringing this matter before the European Court of Justice.”

Ireland had previously appealed the Commission’s Decision on the basis that the correct amount of Irish tax had in fact been paid by Apple and that Ireland had not provided State aid to Apple.  The judgment from the General Court of the European Union vindicates Ireland’s position.

The Minister for Finance, Paschal Donohoe T.D. said,

“I note the decision of the European Commission to lodge an appeal to the CJEU. Ireland has not yet been served with formal notice of the appeal. When it is received, the Government will need to take some time to consider, in detail, the legal grounds set out in the appeal and to consult with the Government’s legal advisors, in responding to this appeal.”

The funds in escrow of €13 billion will only be released when there has been a final determination in the European Courts on the validity of the Commission’s decision.

This appeal process could take up to two years.

For more information, please click: https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_20_1746

Please be aware that the information contained in this article is of a general nature.  It is not intended to address specific circumstances in relation to any individual or entity. All reasonable efforts have been made by Accounts Advice Centre to provide accurate and up-to-date information, however, there can be no guarantee that such information is accurate on the date it is received or that it will continue to remain so. This information should not be acted upon without full and comprehensive, specialist professional tax advice.

Cryptocurrency. Crypto-assets. Personal Taxes. Capital Gains Tax. VAT. Corporation Tax. Payroll Taxes.

In Revenue’s most recent guidance material outlining how cryptocurrencies transactions should be treated for Irish tax purposes (under Income Tax, Capital Gains Tax, Corporation Tax, VAT and Payroll), they formed the view that no special tax rules are required.  For further information please click the link: https://www.revenue.ie/en/tax-professionals/tdm/income-tax-capital-gains-tax-corporation-tax/part-02/02-01-03.pdf

Cryptocurrencies are also known as virtual currencies and include the following:

• Bitcoin
• Ethereum
• Ripple
• Dash
• Litecoin

Ireland has its own cryptocurrency called “Irishcoin”.

One of the common questions arising is whether the profits or losses arising from cryptocurrency transactions are liable to Income Tax/Corporation Tax or if instead, they are subject to Capital Gains Tax.

In other words, it is important to keep in mind that there are different tax treatments for those trading in cryptocurrency and those investing in it.

If the cryptocurrency transactions are deemed to a trading activity then the profits are subject to Income Tax/Corporation Tax.  Capital Gains Tax, however, applies to gains arising from the disposal of cryptocurrency which is held as an investment.

Trading activity or investment?

This answer is determined by reference to what are known as the “Badges of Trade” as well as to related case law.

The ‘Badges of Trade’ are a set of indicators to decide if an activity is a trading or an investment activity and include the following:

1. The Subject Matter
2. Length of Ownership
3. Frequency of similar transaction
4. Supplementary work to enhance it or make it become more marketable
5. Circumstances for realisation

It is not essential that all the above “badges” be present for a trade to exist. When you examine all the badges present in the context of the activity carried out then it’s possible to ascertain if you are carrying out a trade in cryptocurrencies or investing in them.

Another way to look at this is to consider whether you are a passive or an active investor.

If you make a one-off purchase of a few coins that you retain in the hope the value increases then it would be fair to say you are a passive investor and any gain arising in the case of an individual, would be liable to Capital Gains Tax at 33% after offsetting any prior year and current year capital losses less the individual’s personal CGT exemption of €1,270.

If, however, there are multiple transactions taking place on a frequent basis, with a high level of organisation and a commercial motive (i.e. the aim of buying and selling the coins is to create/optimise profit) then it would be reasonable to consider yourself an active trader and any profits arising would be liable to Income Tax / Corporation Tax.  For example, profits derived from crypto mining activities carried on by an individual or a company, would be treated as trading profits and liable to Income Tax/Corporation Tax.

It is essential, therefore, that this should be correctly established by each taxpayer, given their own specific set of circumstances, from the very beginning, to avoid any costly errors further down the line.

As with all tax issues, it is vital to establish the residence and domicile of the investor.  Depending on the location of the cryptocurrency exchange, gains arising for non-resident individuals may be outside the scope of Irish tax.  Individuals who are Irish resident but non domiciled may be able to available of the remittance basis of tax.

What about VAT?

The Revenue Commissioners consider cryptocurrencies to be ‘negotiable instruments’ and therefore exempt from VAT.  This treatment applies to companies and individuals buying and selling cryptocurrencies.  Mining activities are also considered to be outside the scope of Irish VAT.

Financial services consisting of the exchange of cryptocurrencies for traditional currency are exempt from VAT where the company performing the exchange acts as the principal.

Value Added Tax, however, is due from suppliers of goods or services sold in exchange for cryptocurrencies. The taxable amount for VAT purposes should be calculated in Euro at the time of the supply.

What about Payroll Taxes?

Where an employee’s wages and salaries are paid in a cryptocurrency, the value of these emoluments for the purposes of calculating payroll liabilities is the Euro amount attaching to that cryptocurrency at the time those payments are made to the employee.

The amounts contained in returns made to Revenue must be shown in Euro.

Finally, as crypto currencies are traded on a number of exchanges, a reasonable effort should always be made to use an appropriate valuation for the transaction in question.

Please be aware that the information contained in this article is of a general nature.  It is not intended to address specific circumstances in relation to any individual or entity. All reasonable efforts have been made by Accounts Advice Centre to provide accurate and up-to-date information, however, there can be no guarantee that such information is accurate on the date it is received or that it will continue to remain so.. This information should not be acted upon without full and comprehensive, specialist professional tax advice.