U.S. Senate scrutiny of Apple Inc. (AAPL)’s tax strategies turned the spotlight on a unit with $30 billion in profit since 2009 that’s incorporated in Ireland, controlled by a board in California, and doesn’t pay taxes in either place.
Apple officials acknowledged yesterday at a congressional hearing that the entity -- a key subsidiary in Apple’s offshore tax strategy -- is managed and controlled in the U.S., yet it still isn’t paying U.S. federal income taxes.
The shifting of profits by multinational companies is costing the U.S. and Europe at least $100 billion per year in lost tax revenue, according to Kimberly Clausing, an economics professor at Reed University in Portland, Oregon.
“Over the decades, Congress and governments around the world have allowed a system to develop which allows multinational companies to earn income tax-free by using contracts to shift the income, on paper, to companies in low-and zero-tax countries,” said Michael Durst, a retired international tax attorney based in Washington. The result “is eroding public confidence in the fairness of tax systems in the United States and around the world.”
Similar practices by an assortment of companies -- from Google Inc. (GOOG), owner of the world’s most popular Internet search engine, to Forest Laboratories Inc. (FRX), the maker of antidepressant drug Lexapro -- are drawing increased scrutiny from regulators in the U.S. and around the world, particularly as European nations face a backlash against austerity measures.
Corporate tax avoidance is now being targeted on several fronts. The Organization for Economic Cooperation and Development, a think tank funded by governments around the world, is scheduled to release an “action plan” in July to deal with tax revenue lost to profit shifting. The plan came in response to a request by the Group of 20 nations.
The European Commission also is targeting key rules that enable corporate profit shifting.
In the U.S., President Barack Obama’s Treasury Department in April released a list of global tax loopholes to close, many of which it has targeted unsuccessfully in the past.
Meanwhile, the U.S. Senate Permanent Subcommittee on Investigations found that Apple avoided paying income taxes on $74 billion of profit during the past four years in part by moving patent rights to a web of offshore subsidiaries that pay virtually no income taxes.
Apple Chief Executive Officer Tim Cook yesterday maintained the company had done nothing wrong and said it pays “all the taxes we owe -- every single dollar.” The Cupertino, California-based company is also not alone in moving profits to such offshore units.
Google, for example, has used a pair of tax shelters known by tax attorneys as the “Double Irish” and “Dutch Sandwich” that move foreign profits through Ireland and the Netherlands to Bermuda to avoid about $2 billion in income taxes a year, according to the company’s filings in the U.S.
Like Apple, Mountain View, California-based Google shifts profits into an Irish subsidiary that doesn’t pay taxes in Ireland. In Google’s case, it says the unit is managed in Bermuda, which has no corporate income tax.
Google has been questioned by the U.K. Parliament twice since November over its tax affairs and is in a more than $1 billion dispute with French tax authorities.
Yahoo! Inc. (YHOO) has funneled hundreds of millions of dollars in profits through a Dutch bookkeeper’s suburban home office en route to subsidiaries in Mauritius and Switzerland. Like Apple, Sunnyvale, California-based Yahoo has deposited profits in an Irish subsidiary that claims not to be a tax resident in Ireland, but instead in the Cayman Islands, filings show.
Forest Labs, Cisco
Forest Laboratories, based in New York, has used a virtually identical strategy to that of Google, claiming most of its profits are offshore, even as its sales are almost entirely in the U.S. It has also used an Irish unit that claims to be headquartered in Bermuda, and therefore not on the hook for Irish income taxes.
Cisco Systems Inc. (CSCO), based in San Jose, California, has avoided paying billions of dollars in income taxes by attributing about half its worldwide profits in recent years to a tiny unit at the foot of the Swiss Alps.
Cisco spokeswoman Kristin Carvell had no comment for this article. Yahoo spokeswoman Sara Gorman, Google spokeswoman Samantha Smith and Forest Laboratories Vice President Frank Murdolo didn’t return calls for comment.
The Irish Finance Ministry yesterday said there’s “no possibility” of special tax rate deals for companies, in an e-mailed response to questions on Apple’s tax treatment of profits of Irish affiliates.
The companies have also depended on a U.S. tax regulation known as “check the box” -- cited by the Senate investigators in the Apple case -- that makes offshore transactions effectively invisible to the IRS.
Senate investigators drilled down into a crucial component of Apple’s strategy that Edward Kleinbard, a former corporate tax attorney and professor at the University of Southern California Law School, said may make the company vulnerable to taxation in the U.S. In the panel’s report, the top Irish subsidiary receiving offshore profits was found to have held almost all its board meetings in California, with its sole Irish board member rarely attending.
“Apple says their Irish subsidiaries’ ‘mind and management’ lies outside Ireland, but the real question is, do those subsidiaries have any mind of their own at all?” Kleinbard said. “If they are not really competent to make independent decisions to take on risks and make contracts on their own behalf, then the structure collapses of its own weight, and the income properly should be taxed to the United States.”
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