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United States Senate PERMANENT SUBCOMMITTEE ON INVESTIGATIONS Committee on Homeland Security and Governmental Affairs Carl Levin, Chairman John McCain, Ranking Minority Member E X H I B I T S Hearing On Offshore Profit Shifting and the U.S. Tax Code Part 2 (Apple Inc.) May 21, 2013 199 Russell Senate Office Building, Washington, D.C. 20510 United States Senate PERMANENT SUBCOMMITTEE ON INVESTIGATIONS Committee on Homeland Security and Governmental Affairs Carl Levin, Chairman John McCain, Ranking Minority Member E X H I B I T L I S T Hearing On Offshore Profit Shifting and the U.S. Tax Code - Part 2 (Apple Inc.) May 21, 2013 1. a. Memorandum from Permanent Subcommittee on Investigations. b. Apple’s Offshore Organization Structure, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple Inc. c. Effect of Check the Box, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple Inc. d. Apple’s Current Operating Structure. Source: Apple Inc. e. Cost Sharing Payments and Earnings of Apple Sales International (Ireland) and Cost Sharing Payments and Earnings of Apple Inc. (United States), chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple Inc. f. Apple’s Offshore Distribution Structure, chart prepared by the Permanent Subcommittee on Investigations. g. Global Distribution of Apple’s Earnings, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple. h. Apple Operations International’s Profits as a Share of Worldwide Profits, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple. i. Global Taxes Paid by Apples Sales International, 2009-2011, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple. j. Taxes Avoided by Apple Using Check The Box, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple. k. Apples’ Non-Tax Resident Entities, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple Inc. l. Apple: Avoiding Billions in U.S. Taxes, chart prepared by the Permanent Subcommittee on Investigations, Source: Materials received from Apple Inc. 2. Excerpt (cover and signature page) from Amended & Restated Cost Sharing Agreement Between Apple Inc., Apple Operations Europe & Apple Sales International, May 2008. [APL-PSI-000020, 034] 3. Excerpt (page 1 and signature page) from Amended & Restated Agreement To Share Costs and Risks of Intangibles Development (Grandfathered Cost Sharing Arrangement), June 2009. [APL-PSI-000035, 053] -2- 4. Correspondence between Ernst & Young and Cork, Ireland Office of the Revenue Commissioners, dated September 2004, regarding Apple Computer Inc Ltd, The company is a non-resident holding company and is non-trading. In the circumstances there is nothing to return from the corporation tax standpoint. [APL-PSI-000336-337] 5. Apple Operations International - 2009-2012 Shareholder Meetings. [APL-PSI-000340] 6. Excerpt from June 22, 2012 information supplied by Apple to the Permanent Subcommittee on Investigations, ...table identifies the Board Members and Corporate Officers of Apple’s Irish entities...; Since the early 1990's, the Government of Ireland has calculated Apple’s taxable income in such a way as to produce an effective rate in the low single digits.... The rate has varied from year to year, but since 2003 has been 2% or less. [PSI-Apple-02-0002-005] 7. Excerpt from July 6, 2012 information supplied by Apple to the Permanent Subcommittee on Investigations, ...its principal offshore trading activities take place in Ireland and through Apple Distribution International and in Singapore through Apple South Asia Pte, Ltd.; What percentage amount of your company’s world-wide revenues were: booked or recorded in the U.S.?; Cash Reserves and Amounts Paid to Top 5 non-U.S. Subsidiaries. [APL-PSI-000081, 098-108, 120] 8. Excerpt from September 10, 2012 and January 11, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, Apple Inc., Apples Sales International (“ASI”), and Apple Operations Europe (“AOE”) participate in a long-standing R&D cost sharing arrangement.... [APL-PSI-000129, 233] 9. Excerpt from September 12, 2012 information supplied by Apple to the Permanent Subcommittee on Investigations, Apple Operations International - 2009-2011 Minutes. [APL-PSI-000323] 10. Excerpt from January 11, 2013 and 18, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, Since its inception, Apple determined that AOI was not a tax resident of Ireland.; Apples does not believe that AOI qualifies as a tax resident of any other country under the applicable local laws.; For the past three fiscal years, AOI has not filed any corporate income taxes with any national government. [APL-PSI-000236, 239-240] 11. Excerpt from March 11, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, To the best of our knowledge, AOI does not meet any of the Irish central management and control factors.; The conclusion that AOI is not managed and controlled in Ireland does not require a determination where AOI is managed and controlled. [APL-PSI-000241-248] -3- 12. Excerpt from March 11, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, MINUTES OF A MEETING OF THE BOARD OF DIRECTORS OF APPLE OPERATIONS EUROPE; IT WAS NOTED that the Company was to receive on 18th November 2010 a dividend in the amount of US $1,750,000,000 from Apple Sales International; ...an interim dividend ... be paid in the total amount of US $1,750,000,000 on the 18th of November 2010, to Apple Operations International.... [APL-PSI-000288-289] 13. Excerpt from April 26, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, Apple Operations International - Board of Directors Meetings During Tim Cook Directorship. [APL-PSI-000341-343] 14. Excerpt from May 3, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, Apple Operations International - FY 08 and FY 12 Board of Directors Meeting Information. [APL-PSI-000349] 15. Excerpt from May 12, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, AOE and ASI are participants in a Cost Sharing Arrangement with Apple Inc whereby AOE, ASI and Apple Inc have agreed to pool their resources for purposes of undertaking intellectual property co-development activities.... [APL-PSI-000351-353] 16. Excerpt from May 16, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, IRC section 954(d) generally does not apply to income received by ASI or any of Apple’s other Irish entities during the period 2008 to present because sales made to third parties are generally made through disregarded entities. [APL-PSI-000381-383, 386] 17. Excerpt from May 17, 2013 information supplied by Apple to the Permanent Subcommittee on Investigations, The individual who signed the relevant agreements for Apple Sales International was a U.S.-based Apple Inc. employee who signed the agreement in his capacity as Director of Apple Sales International. [APL-PSI-000392, 396] 18. Apple Inc. 10-K Select Figures, 2009-2012, with excerpts from 10-K filings. 19. Foreign Indefinitely Reinvested Earnings: Balances Held By The Russell 3000, A 5-Year Snapshot, May 2013, prepared by Audit Analytics. h h h M E M O R A N D U M TO: Members of the Permanent Subcommittee on Investigations FROM: Senator Carl Levin, Chairman Senator John McCain, Ranking Minority Member Permanent Subcommittee on Investigations DATE: May 21, 2013 RE: Offshore Profit Shifting and the U.S. Tax Code - Part 2 (Apple Inc.) I. EXECUTIVE SUMMARY .................................................................................................................... 2 A. Subcommittee Investigation ............................................................................................................ 2 B. Findings and Recommendations ...................................................................................................... 5 Findings: 1. Shifting Profits Offshore .......................................................................................................... 5 2. Offshore Entities With No Declared Tax Jurisdiction .............................................................. 5 3. Cost Sharing Agreement ........................................................................................................... 5 4. Circumventing Subpart F .......................................................................................................... 5 Recommendations: 1. Strengthen Section 482 ............................................................................................................. 6 2. Reform Check-the-Box and Look Through Rules .................................................................... 6 3. Tax CFCs Under U.S. Management and Control ..................................................................... 6 4. Properly Enforce Same Country Exception .............................................................................. 6 5. Properly Enforce the Manufacturing Exception ....................................................................... 6 II. OVERVIEW OF TAX PRINCIPLES AND LAW ..................................................................................