Among the many things Tim Cook apparently learned at the knee of Steve Jobs, during his long tenure as Apple’s No. 2, was how to create a “reality distortion field.” Or so it would appear after watching Cook, now Apple’s chief executive, testify on Tuesday at a Senate hearing on the company’s tax avoidance schemes.
Jobs was so persuasive that he could claim the sun was setting when it was actually rising, and everyone would nod in agreement. On Tuesday, despite the overwhelming evidence presented by the Senate Permanent Subcommittee on Investigations that Apple engaged in dubious tax avoidance gimmicks, Cook claimed that Apple never resorted to tax gimmickry. Even though the company appears to pay about 10 percent of its pretax income in taxes — when the federal corporate tax rate is 35 percent — Cook said, “We pay all the taxes we owe — every single dollar.” He added that Apple had never shifted any of its American profits to an offshore tax haven when, in fact, that is basically what it has done, routing tens of billions in pretax profits to a shell corporation in Ireland that exists solely to avoid taxes in the United States. He even said that the low taxes Apple pays overseas is on the profits of its overseas sales. Not to put too fine a point on it, but this was a flat-out lie.
In other words, Cook spent Tuesday claiming that the sun was setting when it was actually rising, and, predictably, by the time the hearing had ended, most of the senators were agreeing with him. Senator John McCain, the committee’s ranking Republican, who had earlier labeled Apple “a tax avoider,” was soon swooning over Apple’s “incredible legacy.”Indeed, Apple’s fabulous success over the past decade or so — its creation of the iPads and iPhones that the world lusts over — is a large part of the reason it always gets the benefit of the doubt, whether deserved or not. Two years ago, when David Kocieniewski of The Times reported on General Electric’s tax-avoidance prowess, a storm of protest resulted. Last year, however, when Kocieniewski and Charles Duhigg wrote about Apple’s tax avoidance schemes as part of a series about the company that won a Pulitzer Prize, it was greeted mainly with yawns. Nobody really wants to hear anything bad about Apple.
Yet as documented both by The Times and the Senate subcommittee, Apple is as much an innovator in tax avoidance as it is in technology. Take, for instance, a scheme known as The Double Irish, which it largely invented and which many American companies have since replicated. This strategy, which was the primary focus of Tuesday’s hearing, involves setting up a shell subsidiary in an offshore tax haven — a k a Ireland — and transferring most of Apple’s intellectual property rights to the dummy subsidiary. The subsidiary, in turn, charges “royalties” that allows it to capture billions of dollars in what otherwise would be taxable profits in the United States. In Ireland, according to Apple, it pays an astonishing 2 percent in taxes, thanks to a deal it has with the government. (The Irish government denies giving Apple a special deal.)Here is another whopper from Mr. Cook on Tuesday. He said that his company not only doesn’t violate the letter of the law, that it doesn’t even violate the spirit. He may be right on the first part, but he is wrong on the second. As the subcommittee’s chairman, Carl Levin, the Michigan Democrat, pointed out to me on Wednesday, one of the main goals of American corporate tax policy is to tax profits in the jurisdiction where they are produced.
“That intellectual property and patents are the crown jewels of the company,” Levin said. “The Irish subsidiary had nothing to do with creating those crown jewels. It has no employees. It has no offices. Yet most of Apple’s profits are now offshore because they were able to utilize a shift of their intellectual property to a tax haven.”(Question for the government of Ireland: Do you really want your country to be known as an offshore tax haven? Indeed, at a time when your citizens are dealing with the pain of an austerity program, how can you justify allowing Apple to pay virtually no taxes on a subsidiary established solely to avoid taxes in the United States? Just wondering.)Levin has proposed a bill that would curb the most blatant abuses of the tax code like the Double Irish. Part of the purpose of the hearing was to bring these abuses to light and generate bipartisan support for closing them. When I asked Levin whether he felt that the subcommittee had made a mistake in singling out Apple, given its Teflon reputation, he said no. “You can’t ignore the most blatant examples just because it is a popular company,” he said.
He’s right about that, of course. But that’s only obvious if you are willing to say the sun is rising when Apple says it is not.