The
double Irish arrangement is a
tax avoidance strategy that some
multinational corporations use to lower their
corporate tax liability. The strategy uses payments between related entities in a
corporate structure to shift income from a higher-tax country to a lower-tax country. It relies on the fact that
Irish tax law does not include US
transfer pricing rules.
[1] Specifically,
Ireland has
territorial taxation, and hence does not levy taxes on income booked in subsidiaries of Irish companies that are outside the state.
The double Irish tax structure was pioneered in the late 1980s by companies such as
Apple Inc..
[2] In 2010 a law intended to counter such arrangements was passed,[
where?] though existing arrangements were exempt and lawyers have said that this change will cause no significant problems for multinational firms.
[3]
In 2013, the Irish government announced that companies which incorporate in Ireland must also be tax resident there. This counter-measure took effect in January 2015, for newly-incorporated companies, and will take effect in 2020 for companies with existing operations in Ireland.
[4] Irish Finance Minister
Michael Noonan, during the presentation of his 2015 budget, said that he believed this would align Ireland's corporate tax regime with international best practice.
[5]
Overview
Typically, the company arranges for the rights to exploit
intellectual property outside the United States to be owned by an
offshore company. This is achieved by entering into a
cost sharing agreement between the US parent and the offshore company, written strictly in terms of US
transfer pricing rules. The offshore company continues to receive all of the profits from exploitation of the rights outside the US, but without paying US tax on the profits unless and until they are remitted to the US.
[6]
It is called
double Irish because it requires two Irish companies to complete the structure. One of these companies is
tax resident in a
tax haven, such as the
Cayman Islands or
Bermuda. Irish tax law currently provides that a company is tax resident where its central management and control is located, not where it is incorporated, so that it is possible for the first Irish company not to be tax resident in Ireland. This company is the offshore entity which owns the valuable non
US rights that are then licensed to a second Irish company (and this one is tax resident in Ireland) in return for substantial royalties or other fees. The second Irish company receives income from the use of the asset in countries outside the US, but its taxable profits are low because the royalties or fees paid to the first Irish company are tax-deductible expenses. The remaining profits are taxed at the
Irish rate of 12.5%.
For companies whose ultimate ownership is located in the United States, the payments between the two related Irish companies might be
non-tax-deferrable and subject to current taxation as Subpart F income under the
Internal Revenue Service's
Controlled Foreign Corporation regulations if the structure is not set up properly. This is avoided by organizing the second Irish company as a fully owned subsidiary of the first Irish company resident in the tax haven, and then making an
entity classification election for the second Irish company to be disregarded as a separate entity from its owner, the first Irish company. The payments between the two Irish companies are then ignored for US tax purposes.
[1]
