What companies can learn from Apple

The image of the American income tax law is of horrible and immense complexity.

But it turns out that in many ways it is not that complicated. The Apple tax tactic that came in for denunciation at Senate subcommittee hearing was not particularly difficult to carry out, and it seems to have been something known to some tax experts - but not to many of those whose job it is to write tax laws.

"What impresses me is the effortlessness of Apple's international planning," said Edward Kleinbard, a tax law professor at the University of Southern California and a former chief of staff of the Congressional Joint Tax Committee.

The planning involved setting up subsidiaries that would get the lion's share of Apple's profits on sales in Europe and Asia. Apple incorporated those subsidiaries in Ireland - making them exempt from immediate US taxation - and told Ireland that the subsidiaries were run from Apple's headquarters in Cupertino, California, and therefore were exempt from tax in Ireland.

"It hinges," said Kleinbard, "on nothing more than an Irish shell company whose management in fact is in Cupertino, and a contract between two arms of Apple's single global enterprise with no economic significance to anyone outside of Apple. It's as if Apple checked a box to elect out of worldwide taxation on a vast swath of their international income."

Was that shocking? It was to Senator Carl Levin, the chairman of the subcommittee that held the hearing. He said he had not seen anything comparable at General Electric or Microsoft, two companies whose tax returns Senate staff aides had previously combed through.

Mark Mazur, the assistant Treasury secretary for tax policy, testified he had never heard of such a thing. It is his job to recommend changes in tax laws.

But Samuel Maruca, the Internal Revenue Service director of transfer pricing operations, sounded surprised that people were surprised.

Tim Cook, Apple's chief executive, saw nothing unusual. He vigorously denied Apple had used any "tax gimmicks."

It may be that once a loophole is spotted, using it is anything but complicated. But it can be very difficult to spot such a loophole without help from someone who has already found it.

If that is the case, Tuesday's hearing could have the exact opposite effect from the one that Levin intended. It is not hard to imagine other chief executives reading news reports and asking their chief financial officers why they never thought of that. That could lead to even more companies finding ways to avoid American income taxes.

To use Apple's strategy, companies will need to meet a few criteria.

First, they must be multinationals.

Second, a large part of their profits must come from what is called "intellectual property," such as patents or copyrights.

Third, it helps a lot if the company can do its tax planning before it is obvious to outsiders - or maybe even to insiders - just how profitable that intellectual property is going to be.

Finally, they must find one or more countries that will let them pull the trick. Ireland seems to have been very clever. It offers the benefit of "stateless subsidiaries" only to companies that have actual operations in Ireland. Apple has its European headquarters there, and employs a lot of people. In effect, Ireland pays companies to come to Ireland by offering to let them avoid taxes in their home countries.

In Apple's case, as with many technology and pharmaceutical companies, the cost of production is but a fraction of the price paid by the customers. Most of the profits will accrue to the owner of the intellectual property.

Apple does nearly all of its research near its Cupertino headquarters. But in 1980 it signed over to an Irish subsidiary the right to profit from that research in most of the world. Buy an iPhone in Brazil, and Apple US will benefit. Buy one in China, and the Irish operation books most of the profits.

That deal appears to have been very one-sided, given what happened to Apple. But Apple renewed it in 2008.

Such an inter-company deal should be on "arm's-length" terms. But that is hard to know. It is, testified Maruca, the IRS official, "our most significant enforcement challenge."

Under American tax law, American companies owe tax on their worldwide profits - but with a major catch. "Foreign profits" are not taxed until they are brought home. Then they are taxed at the American rate of 35 per cent, less whatever foreign tax was paid. But there is no requirement that they ever come home.

President John F. Kennedy called for ending that deferral. Congress refused to do so, but passed provisions that were supposed to make it harder for companies to abuse the deferral rules. Levin says that those rules have themselves been abused.

What will happen? Apple thinks the solution is simple. Let it bring the money home at a rate Apple and other companies would deem reasonable.

And what is reasonable? "To incent a huge number of companies" to bring back money, Cook testified, the new rate "would have to be a single-digit number."

Levin hopes that the hearing will inspire his colleagues to change the law in a different way. "These tax-shifting capabilities that these major corporations have cannot continue," he said.

But the result could be the opposite, with nothing happening on Capitol Hill as more companies use the Apple example to take a bite out of their tax bills.