Thursday, September 1, 2016

Fact-Checking Apple’s Claims on E.U. Tax Ruling


SAN FRANCISCO — Timothy D. Cook, Apple’s chief executive, issued a defiant letter to his European customers on Tuesday after the region’s antitrust enforcer ordered Ireland to collect 13 billion euros, or about $14.5 billion, in back taxes from the company.


By turns outraged and scolding, Mr. Cook pushed back on the findings by Europe’s competition commission, which said that Apple had made inappropriate low-tax deals with the Irish government that let the technology company pay almost nothing on its European business in some years.


Instead, Mr. Cook framed Apple’s operations in Ireland as an investment in the people there, declared that Apple has a history as a good corporate tax citizen, and added that the European Commission’s decision will hurt investment and business growth in Europe.

We examined some of the points Mr. Cook made in the letter, consulting with five tax experts to fact-check the chief executive’s statements. While Mr. Cook was technically truthful, he omitted some context and shifted the spotlight from the thrust of the European Commission’s case: whether Apple took advantage of loopholes in Irish tax laws.

MR. COOK’S LETTER “As our business has grown over the years, we have become the largest taxpayer in Ireland, the largest taxpayer in the United States, and the largest taxpayer in the world.”

FACT CHECK While it’s not a bad guess that Apple is the largest taxpayer on the planet because of the company’s immense size, even Mr. Cook said in testimony before Congress in 2013 that this was just an estimate. United States corporate tax information is private, so there is no way for Apple to say for sure that it is the biggest taxpayer in the country, much less the world.

The issue of how much money Apple pays in taxes is also a bit of a red herring. “This fight with the European Union is not about what the company has paid in taxes overall, but about how much it should pay,” said Steven Rosenthal, a senior fellow at the Urban-Brookings Tax Policy Center. “Tax systems are not a pay-what-you-want system.”


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MR. COOK’S LETTER “In Ireland and in every country where we operate, Apple follows the law and we pay all the taxes we owe.”

FACT CHECK Apple, along with many multinational companies, takes advantage of differences in national tax laws by moving money around the globe in ways that shrink their overall tax burdens. While a company like Apple may pay all of the taxes that it owes, it also tries to find legal ways to owe as little as possible.

The European Union wants to crack down on the ways that companies minimize their tax bills in Europe, especially in Ireland. In the 1980s, Ireland began modeling itself after Bermuda, a well-known corporate tax haven, said Khadija Sharife, a forensic financial researcher and an editor at the African Network of Centers for Investigative Reporting. Ireland’s corporate tax rate is 12.5 percent, compared with 35 percent in the United States.

While Ireland is phasing out some corporation-friendly rules, “companies will continue to come up with ways to pay less taxes in other countries until all countries across the world can agree on corporate tax rules,” said Lisa De Simone, assistant professor of accounting at Stanford University.

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MR. COOK’S LETTER “The opinion issued on August 30th alleges that Ireland gave Apple a special deal on our taxes. This claim has no basis in fact or in law. We never asked for, nor did we receive, any special deals.”

FACT CHECK The European Commission makes clear, and tax experts agree, that Ireland let Apple determine how much of the income that it generated in the country would be recognized and taxed there.

The rest of Apple’s income that was not recognized and taxed in Ireland could be put in other corporate structures that were effectively stateless. That meant the money in those structures was not taxable anywhere — not even in Ireland — and thus not subject to Ireland’s 12.5 percent tax rate.

While other companies have also had the right to negotiate with Ireland, the commission considers these sorts of loopholes a no-no.

“In the U.S., states can fall all over themselves to offer subsidies and loopholes, but that is exactly what is illegal in Europe,” said Edward D. Kleinbard, professor at the Gould School of Law at the University of Southern California and a former chief of staff to the congressional Joint Committee on Taxation.

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MR. COOK’S LETTER “The Commission’s move is unprecedented and it has serious, wide-reaching implications. It is effectively proposing to replace Irish tax laws with a view of what the Commission thinks the law should have been.”

FACT CHECK Mr. Kleinbard said the commission is not replacing Ireland’s tax law with a view of what the commission thinks should happen. It is simply asking Ireland to enforce the tax rate that it has and close loopholes that allow companies like Apple not to recognize large portions of the income they generate in Ireland and pay even less.

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MR. COOK’S LETTER “This would strike a devastating blow to the sovereignty of E.U. member states over their own tax matters, and to the principle of certainty of law in Europe.”

FACT CHECK Stanford’s Ms. De Simone agrees with Apple that the E.U. ruling hurts the sovereignty of its member countries. If Ireland wants to create rules that allow for stateless entities not to pay taxes anywhere, up until now that has been Ireland’s decision to make.

While the E.U. has been trying to create harmony across the region when it comes to how to treat corporate taxes, for now taxes are “an issue for each individual member state in Europe,” said Dr. Liza Lovdahl Gormsen with the British Institute of International and Comparative Law. She said this case creates uncertainty for many multinational companies across Europe.

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MR. COOK’S LETTER “In Apple’s case, nearly all of our research and development takes place in California, so the vast majority of our profits are taxed in the United States.”

FACT CHECK It’s true the majority of Apple’s profits are taxed in the United States.

But Ms. De Simone said Apple has also kept more than $200 billion in accumulated profits offshore. That money could someday be brought home and taxed, but Apple is in control of whether or not that actually happens.

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MR. COOK’S LETTER “Beyond the obvious targeting of Apple, the most profound and harmful effect of this ruling will be on investment and job creation in Europe.”

FACT CHECK There is support among tax experts for this statement. Mr. Rosenthal of the Tax Policy Center said so many countries are motivated to use low tax rates to generate business that Europe could lose multinational business if companies are discouraged by the commission’s ruling on Irish tax treatment of Apple.

But Mr. Rosenthal said the issue is ultimately broader than Europe. People would do well to also remember the total amount of government revenue being lost to low-cost tax deals, he said.

“If we allow companies like Apple to pick its tax haven — to place a few thousand employees in a place for a lower tax rate — we do add a few jobs,” he said. “But more widely, the taxes given up globally could be used for public service, worker training and infrastructure repair.”



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