On October 4, 2017 the European Commission announced that it had concluded that Luxembourg granted undue tax benefits to Amazon of around €250 million. According to the European Commission this is illegal under EU State aid rules because according to the European Commission it allowed Amazon to pay substantially less tax than other businesses. The European Commission ordered Luxembourg to recover the illegal aid. On February 26, 2018 the non-confidential version of the European Commission’s decision of October 4, 2017 was made available in the State Aid Register on the European Commission's competition website.
The Commission decision concerns Luxembourg's tax treatment of two companies in the Amazon group
· Amazon EU (the "operating company") operates Amazon's retail business throughout Europe. In 2014, it had over 500 employees, who selected the goods for sale on Amazon's websites in Europe, bought them from manufacturers, and managed the online sale and the delivery of products to the customer.Amazon set up their sales operations in Europe in such a way that customers buying products on any of Amazon's websites in Europe were contractually buying products from the operating company in Luxembourg. This way, Amazon recorded all European sales, and the profits stemming from these sales, in Luxembourg. and
· Amazon Europe Holding Technologies (the "holding company") is a limited partnership with no employees, no offices and no business activities. The holding company acts as an intermediary between the operating company and Amazon in the US. It holds certain intellectual property rights for Europe under a so-called "cost-sharing agreement" with Amazon in the US. The holding company itself makes no active use of this intellectual property. It merely grants an exclusive license to this intellectual property to the operating company, which uses it to run Amazon's European retail business.
Both companies are Luxembourg-incorporated companies that are fully-owned by the Amazon group and ultimately controlled by the US parent, Amazon.com, Inc.
Under the cost-sharing agreement the holding company makes annual payments to Amazon in the US to contribute to the costs of developing the intellectual property. The appropriate level of these payments has recently been determined by a US tax court.
Under Luxembourg's general tax laws, the operating company is subject to corporate taxation in Luxembourg, whilst the holding company is not because of its legal form, a limited partnership.Profits recorded by the holding company are only taxed at the level of the partners and not at the level of the holding company itself. The holding company's partners were located in the US and according to the European Commission they have so far deferred their tax liability.
According to the European Commission Amazon implemented this structure, endorsed by the tax ruling under investigation, between May 2006 and June 2014. In June 2014, Amazon changed the way it operates in Europe. This new structure is outside the scope of the Commission State aid investigation.
According to the European Commission This ruling endorsed a method to calculate the taxable base of the operating company. Indirectly, it also endorsed a method to calculate annual payments from the operating company to the holding company for the rights to the Amazon intellectual property, which were used only by the operating company. These payments exceeded, on average, 90% of the operating company's operating profits. They were significantly (1.5 times) higher than what the holding company needed to pay to Amazon in the US under the cost-sharing agreement.
The Commission’s assessment
According to the press release the Commission's State aid investigation concluded that the Luxembourg tax ruling endorsed an unjustified method to calculate Amazon's taxable profits in Luxembourg. In particular, the level of the royalty payment from the operating company to the holding company was inflated and did not reflect economic reality.
The operating company was the only entity actively taking decisions and carrying out activities related to Amazon's European retail business. Its staff selected the goods for sale, bought them from manufacturers and managed the online sale and the delivery of products to the customer. According to the European Commission the operating company also adapted the technology and software behind the Amazon e-commerce platform in Europe, and invested in marketing and gathered customer data. According to the European Commission the aforementioned means that Amazon EU managed and added value to the intellectual property rights licensed to it.
Furthermore the European Commission is of the opinion that the holding company was an empty shell that simply passed on the intellectual property rights to the operating company for its exclusive use. The holding company was not itself in any way actively involved in the management, development or use of this intellectual property. According to the European Commission it therefore did not, and could not, perform any activities, to justify the level of royalty it received.
In the press release it is stated that under the method endorsed by the tax ruling, the operating company's taxable profits were reduced to a quarter of what they were in reality. According to the European Commission almost three quarters of Amazon's profits were unduly attributed to the holding company, where they remained untaxed. In fact, the ruling enabled Amazon to avoid taxation on three quarters of the profits it made from all Amazon sales in the EU.
On this basis, the Commission concluded that the tax ruling issued by Luxembourg endorsed payments between two companies in the same group, which are not in line with economic reality. As a result, the tax ruling enabled Amazon to pay substantially less tax than other companies. Therefore, the Commission decision found that Luxembourg's tax treatment of Amazon under the tax ruling is illegal under EU State aid rules.
Click on to the language of your choice to be forwarded to the non-confidential version of the European Commission’s of October 4, 2017 as made available under the case number SA.38944 in the State Aid Register on the Commission's competition website (English or French).
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