The spotlight on Apple's tax strategy comes at a time of fevered debate in Washington over whether and how to raise revenues to help reduce the federal deficit. Many Democrats say the government is missing out on collecting billions because companies are stashing profits abroad and avoiding taxes. Republicans want to cut the corporate tax rate of 35 per cent and ease the tax burden on money that US companies make abroad, saying the move would encourage companies to invest at home.
Apple has made clear that given current US tax rates, it has no intention of repatriating its overseas profits to the U.S.
The report estimates that Apple avoided at least $3.5 billion in US federal taxes in 2011 and $9 billion in 2012 by using the strategy. The company, based in California, paid $2.5 billion in federal taxes in 2011 and $6 billion in 2012.
The subcommittee also has examined the tax strategies of Microsoft, Hewlett-Packard and other multinational companies, finding that they too have avoided billions in US taxes by shifting profits offshore and exploiting weak, ambiguous sections of the tax code. Microsoft has used "aggressive" transactions to shift assets to subsidiaries in Puerto Rico, Ireland and Singapore, in part to avoid taxes. HP has used complex offshore loan transactions worth billions while using the money to run its US operations, according to the panel.
Apple uses five companies located in Ireland to carry out its tax strategy, according to the report. The companies are located at the same address in Cork, Ireland, and they share members of their boards of directors. While all five companies were incorporated in Ireland, only two also have tax residency in that country. That means the other three aren't legally required to pay taxes in Ireland because they aren't managed or controlled in that country, in Apple's view.
The report says Apple capitalises on a difference between US and Irish rules regarding tax residency. In Ireland, a company must be managed and controlled in the country to be a tax resident. Under US law, a company is a tax resident of the country in which it was established. Therefore, the Apple companies aren't tax residents of Ireland nor of the US, since they weren't incorporated in the US, in Apple's view.
The subcommittee said Apple's strategy of not declaring tax residency in any country could be unique among corporations.
"Apple wasn't satisfied with shifting its profits to a low-tax offshore tax haven," Sen. Carl Levin, the subcommittee's chairman, said in a statement. "Apple sought the Holy Grail of tax avoidance. It has created offshore entities holding tens of billions of dollars, while claiming to be tax resident nowhere."
The subcommittee report also noted that Apple has been setting aside billions for tax bills it may never pay. As previously reported by The Associated Press, the overlooked asset that Apple has been building up could boost its profits by as much as $10.5 billion. However, Apple has been lobbying to change US law so it can erase its tax liabilities in a less conspicuous fashion.
In its second quarter ended March 31, Apple posted its first profit decline in 10 years. Net income was $9.5 billion, or $10.09 a share, down 18 per cent from $11.6 billion, or $12.30 a share, in the same period a year ago. Revenue increased 11 per cent, to $43.6 billion.
Apple said in April that it will distribute $100 billion in cash to its shareholders by the end of 2015. The company is expanding its share buyback program to $60 billion, the largest buyback authorization in history, and is raising its dividend by 15 per cent, to $3.05 a share.
President Barack Obama has proposed using the tax code to encourage companies to move jobs back to the US and discourage them from shifting jobs abroad. Many in both top political parties say they want to overhaul the entire tax code, but there are vast differences in how they would do so.
