Senate investigators: Apple avoided $44 billion in US taxes

By: Tony Romm
May 20, 2013 05:39 PM EDT

Senate investigators accuse Apple of wiring together a complicated system to shield billions of dollars in international profits from both U.S. and foreign tax collectors.

A report released ahead of Apple CEO Tim Cook’s inaugural Capitol Hill appearance Tuesday alleges the iPhone-maker took advantage of numerous U.S. tax loopholes and avoided U.S. taxes on $44 billion in offshore, taxable income between 2009 and 2012 — a characterization Apple flatly rejects.

The bipartisan Senate probe also charges for the first time that Apple’s long established foreign entities, based in Ireland, don’t actually have tax-resident status there or anywhere else. The company conducts most of its international business in the European country to take advantage of lower tax rates, according to the congressional report.

The lawmakers behind the inquiry did not describe Apple’s tax conduct as illegal, but they sharply rebuked the Cupertino, California-based tech heavyweight for its tactics.

“What we intend to do is to highlight that gimmick and other Apple offshore avoidance tactics so that American working families, who pay their share of taxes, understand how offshore tax loopholes raise their tax burden and how those loopholes add to the federal deficit,” said Sen. Carl Levin (D-Mich.), the chairman of the Permanent Subcommittee on Investigations. The panel initiated the probe with the backing of its top Republican, Sen. John McCain of Arizona.

Apple, meanwhile, emphasized it’s contributed more than its fair share of jobs to the U.S. economy — and plenty of big bucks to the U.S. treasury, too. Its prepared testimony, also released Monday, said the company “pays all its required taxes, both in this country and abroad.” And Apple stressed it does not use “tax gimmicks.”

Still, the Senate’s report sets the stage for a fiery committee hearing Tuesday, one that also marks Cook’s first time testifying on Capitol Hill. It’s sure to be rife with theatrics: Levin’s panel castigated Microsoft and Hewlett Packard just last year for their own, unique methods to allegedly lower their corporate tax payments. The hearing, however, didn’t result in any meaningful changes to the companies’ practices or U.S. laws.

Apple has been subject of its own spotlight since The New York Times in 2012 illustrated the company’s controversial efforts to sidestep steep U.S. taxes. Much of the Times’ initial report appears to be confirmed by the Senate’s latest findings. And adding fuel to the fire: Apple’s decision to sell $17 billion in bonds to pay dividends and buy back stock, rather than tap some of the roughly $100 billion it’s stashed overseas. If brought back to the United States, Apple would incur a 35 percent tax on those dollars — a reality that’s prompted many businesses beyond the tech industry to avoid repatriating their foreign earnings.

For its part, Apple maintained in the advanced testimony that it is not dodging any U.S. taxes, funneling U.S. profits overseas or tapping revolving loans improperly, as the Senate committee explored last year.

Still, leading lawmakers are furnishing 40 pages of new evidence suggesting Apple at least took advantage of legal loopholes in both the United States and Ireland.

At issue is the iPhone giant’s corporate structure. Apple organizes its operations in two regions — Apple Inc., based in the United States, which handles the Americas; and a network of affiliates based in Ireland that sell products throughout the rest of the world. Much of Apple’s international profits are directed toward Ireland because of its low tax rates, according to the committee.

However, Apple’s top-tier “offshore holding company,” called Apple Operations International, doesn’t actually have an official tax residence, according to the committee’s new findings. Without residency, it’s able to exploit “the gap between the two nations’ tax laws” — allowing Apple, for example, to rake in income of $30 billion between 2009 and 2012 without filing an income tax return anywhere, the report concludes.

For context, Apple Operations International accounted for just under one third of Apple’s total, worldwide net profits between 2009 and 2011, the company told investigators for their report. That confirms the Times’ widely cited 2012 expose. Apple’s profit, in total, came by way of dividends, or money sent back from its “lower-tiered offshore Apple affiliates” to the top entity, according to the Senate’s findings.

Apple, however, rejected those allegations in the advance testimony. The company noted that Apple Operations International didn’t meet the criteria to declare residency in Ireland, while arguing its dividends have “already been subject to tax in accordance with the laws of the countries where they were earned.”

The company’s other, lower entities abroad proved just as divisive. One of the links in the chain, called Apple Sales International, also operated as an Irish affiliate without an official tax residency. Senate investigators say it took advantage of foreign loopholes to pay a tiny $10 million in global taxes on about $22 billion in income in 2011, possibly because it’s not reported the full amount of income on its Irish tax returns. Again, though, Apple said in testimony it’s paid the appropriate taxes.

If anything, the divide between Capitol Hill and Cupertino may reflect the complexities of the international tax system.

Apple “through negotiations” with Ireland secured a special, lower corporate income tax rate, according to the Senate’s report, at about 2 percent. That’s lower than the 12-percent rate mandated normally under Irish law, and a far departure from the 35-percent corporate income tax rate in the United States. For that reason, Apple’s international business structure seemed designed to funnel as much profit as possible back to its Irish parent, where taxes were the lowest, according to the report. Apple did not comment on its negotiations in Ireland.

Ultimately, Apple’s setup also touches Washington: The report estimates the company between 2009 and 2012 relied on its complex foreign structure as well as a series of U.S. tax loopholes to “avoid … taxation of offshore income totaling $44 billion.” To do this, the Senate committee’s investigators say the company took advantage of IRS rules that overlook the lower rungs of its international business chain. Apple, however, plans to tell Senate lawmakers on Tuesday that it adopted this system because it made the most sense for its operations and shareholders.

Similarly, Apple adopted a cost-sharing arrangement between its U.S and Ireland-based operations. While Senate lawmakers cite that as yet another example of Apple avoiding U.S. taxes, the company argued it has helped galvanize its research and development work.

Despite the debate, lawmakers didn’t say Monday Apple did anything illegal, the company appears to have taken advantage of existing loopholes in a tax code riddled with confusing complexities. In fact, Cook emphasized to POLITICO last week that Apple already pays roughly $6 billion just in U.S. income taxes — a point executives will make again on Tuesday.

Anticipating that argument at the hearing, however, the report prepared by Levin and McCain’s staff casts doubt on Apple’s numbers. Instead, investigators noted Apple’s own calculations included deferred tax payments — money it’s not paid the Treasury, but must if it brings back its foreign dollars. While it’s a commonly accepted accounting practice, the Senate report said it still pegs Apple’s actual federal taxes at $2.4 billion last year.

To that end, Levin and McCain reaffirmed in their report the need for tax reform — specifically to clamp down on companies that transfer intellectual property abroad to avoid U.S. taxes, while limiting the so-called “check in the box” rules that have allowed Apple to shield some of its internal sales from the IRS.

“It is important to understand Apple’s byzantine tax structure so that we can effectively close the loopholes utilized by many U.S. multinational companies, particularly in this era of sequestration,” McCain said in a statement.



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