Many companies invert after years of avoiding billions of dollars in income taxes by routing profits offshore that should have been reported in the U.S., according to Internal Revenue Service filings in tax court. Shifting their legal address abroad makes it easier for them to tap the cash without paying taxes on it.
Five companies involved in inversions -- Medtronic Inc., Covidien Plc, Eaton Corp., Abbott Laboratories and Ingersoll-Rand Plc -- are in court battles with the IRS over income credited to units in low-tax jurisdictions such as the Cayman Islands, Luxembourg and Bermuda. Those companies collectively hold about $67 billion in offshore earnings, barely taxed anywhere in the world.
The cases raise questions about one of the most common justifications companies offer for inverting -- that they should be able to use their foreign profits without paying onerous U.S. tax. A substantial share of that income isn’t really foreign but was earned in the U.S., according to the IRS.
Companies that assert they must move overseas to use offshore cash are “hypocritical,” said Gabriel Zucman, an economics professor at the London School of Economics. “They’ve chosen to book those profits in these countries with extremely low tax rates or zero tax rates. The U.S. does not force them to book profits in Bermuda or the Caymans.”
The companies say that their taxable profits are allocated to subsidiaries around the world in accordance with the law. Most of their overseas profits are not being disputed by the IRS. Moreover, many companies that aren’t inverted also avoid U.S. income taxes by shifting profits offshore.
Unlike most countries, the U.S. has a global taxation system. American companies owe income taxes at a rate of 35 percent on their profits worldwide. Because they can defer the bill on profits attributed to overseas operations until the money is repatriated, companies push income out of the U.S. through “transfer pricing.” In other words, corporate subsidiaries pay each other for the use of valuable patents, brand names or other goods.
Over $100 Billion
Such profit shifting costs the U.S. and Europe more than $100 billion annually, according to two recent academic estimates. It also means that U.S. companies are sitting on at least $2 trillion held by foreign subsidiaries.
“The real game is not shifting headquarters or profits to Ireland” through inversions, said Zucman. “The real game is seeking close to zero tax rates by moving profits to places like Bermuda or Caymans and so on. This has been done on a massive scale by U.S. firms.”
The share of U.S. companies’ foreign profits attributed to a handful of tax-friendly locales -- including Luxembourg, the Netherlands, Switzerland, Ireland and Grand Cayman -- has more than doubled over 20 years, from 25 percent in 1993 to 56 percent in 2013, U.S. Commerce Department data compiled by Zucman show. In some cases, the share of profits that companies attribute to those countries is ten times greater than the portion of actual workers there, the Congressional Research Service found last year.
Elephant in Room
The Organization for Economic Cooperation and Development, a group funded by governments around the world, is attempting to restrict profit shifting. Its initiatives could affect U.S. companies including Google Inc., Apple Inc., and Starbucks Corp.
“Transfer pricing is the elephant in the room,” said Stephen E. Shay, former deputy assistant secretary for international tax affairs at the Obama Treasury Department, now a professor at Harvard Law School. “Transfer pricing is what makes inversions even more valuable.”
If American companies want to use their offshore cash in the U.S., they must pay corporate income tax at a rate of 35 percent, with a credit for taxes paid abroad. While some companies over the years have figured out ways to bring home the cash and avoid that bill without taking a foreign headquarters, they are increasingly inverting abroad to save those taxes. The technique often requires merging with a smaller foreign company, and then choosing an address in a tax-friendly jurisdiction like Ireland or the Netherlands. Sometimes the merger partner is a company that itself inverted from the U.S. Top executives typically stay in the U.S. and the overseas offices often employ just a handful of people.
Access to Cash
In the past three years, 14 U.S. companies have shifted their legal addresses to tax-friendlier jurisdictions abroad. Seven more are pursuing similar plans, including Burger King Worldwide Inc. and semiconductor maker Applied Materials Inc. The Treasury Department introduced rules in September to restrict the benefit of inversions.
Medtronic, a Minneapolis-based medical device maker, cited its untapped overseas cash when it announced plans in June to change its legal address to Ireland through a merger with Covidien.
“This is not about lowering tax rates,” Medtronic Chief Executive Officer Omar Ishrak said at the time. “What we will have is access to the cash generated outside the U.S.”
Yet at least $1 billion of Medtronic’s foreign profits never should have been there, the IRS alleges in U.S. Tax Court filings. Instead, those profits were improperly attributed to a mailbox in a Grand Cayman office building to avoid taxes, according to the government. The IRS has called the company’s profit shifting “absurd,” characterizing it as “a transfer to a shell corporation domiciled in a tax haven which had little or no operations there.”
Medtronic attorneys have said in court filings that the IRS’s attempt to tax those profits is “arbitrary, capricious and unreasonable.” Fernando Vivanco, a company spokesman, said Medtronic “pays all applicable foreign taxes on its foreign earnings in the countries in which it conducts business.”
Medtronic’s prospective merger partner Covidien, already an inverted company, is in a separate IRS dispute. The government alleges that Covidien shifted too much profits to a subsidiary in Luxembourg through an intra-company loan. Covidien, run from the Boston suburb of Mansfield, was once part of Tyco International Plc, which inverted into Bermuda in 1997. Covidien was spun off from Tyco in 2007 and later moved its legal address to Ireland.
Covidien’s attorneys have called the IRS position “erroneous,” court filings show.
Covidien is one of several inverted companies to route profits to Luxembourg, according to court filings and recent disclosures by the International Consortium of Investigative Journalists. The funnelling of profits to the tiny nation prompted an effort by the European Parliament to censure European Commission president Jean-Claude Juncker, formerly the Luxembourg prime minister for almost 19 years. The censure vote failed last month.
Industrial manufacturer Eaton shifted its legal address from Cleveland to Ireland in 2012. One result: the company reported a tax rate of just 0.6 percent last year, down from 12.9 percent in 2011.
For several years, an Eaton unit in the Cayman Islands reported returns on capital of more than 400 percent, according to an IRS filing. The agency called that “unjustified,” and is seeking about $127 million in back taxes.
Eaton said the analysis by IRS economists challenging its offshore arrangement is “without foundation in fact or law.”
While the company employs 103,000 people around the world, it expects to have “just less than 100 employees” in its corporate office in Dublin, said Scott Schroeder, a spokesman.
Ingersoll-Rand is also in a court dispute with the IRS. The interest paid on intra-company loans enabled Ingersoll-Rand to shift profits out of the U.S. and into subsidiaries in Luxembourg and Barbados, court filings show. (The company, which operates out of North Carolina, has shifted its legal address first to Bermuda and then to Ireland.) The IRS is seeking almost $1 billion in back taxes, interest and penalties from the company, according to securities disclosures.
Ingersoll-Rand has taken advantage of gaps in the law and received hundreds of millions of dollars from the U.S. government despite a federal ban on awarding contracts to inverted companies. Misty Zelent, an Ingersoll-Rand spokeswoman, declined to comment.
Then there is Abbott Laboratories. The company plans to shed a chunk of its overseas generic drug business and merge it with pharmaceutical company Mylan Inc. Abbott will retain a stake in the combined business, which would be incorporated in the Netherlands. Mylan will continue to be run from the Pittsburgh suburbs.
Abbott has used a tax shelter known as a “Double Irish” to move at least $3 billion in profits to Bermuda, records show. That technique is being phased out by the Irish government after international pressure.
In the U.S., Abbott is in a $312 million IRS dispute over moving valuable patent rights to Ireland. Abbott is in settlement discussions with the IRS, said Scott Stoffel, a company spokesman.
Abbott is sitting on $24 billion in offshore earnings on which it has paid no U.S. taxes, securities filings show. If the deal is completed, the portion of that cash that ends up with Mylan will likely never be taxed in the U.S. at all.
“Everyone seems apologetic about inversions -- I’m not,” Abbott CEO Miles White said in a July conference call. “It’s about access to your capital that already had its taxes paid and not so much about ducking U.S. tax, as people seem to think.”