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CASE: A-226

DATE: 2/17/16

STICKS AND STONES?


HOW COMPANIES RESPOND TO
“TAX SHAMING”
Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as
to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody
owes any public duty to pay more than the law demands: taxes are enforced exactions, not
voluntary contributions. To demand more in the name of morals is mere cant.
1
—Judge Learned Hand, Commissioner v. Newman, 159 F2d 848 (1947)

You know, there are a whole range of benefits that have helped to build companies, create value,
create profits. For you to continue to benefit from that entire architecture that helps you thrive,
but move your technical address simply to avoid paying taxes is neither fair, nor is it something
that’s going to be good for the country over the long term. And this is basically taking advantage
of tax provisions that are technically legal—but I think most people would say if you’re doing
business here, if you’re basically still an American company, but you’re simply changing your
mailing address in order to avoid paying taxes then you’re really not doing right by the country—
and by the American people.
2
—President Barack Obama (2014)

On November 12, 2012, Starbucks Global CFO Troy Alstead, Google Vice President for Sales
and Operations (north and central Europe) Matt Brittin, and Amazon Director for Public Policy
Andrew Cecil sat sandwiched together at the end of a long, horseshoe-shaped table in a
windowless hearing room of the British Parliament. All three executives wore bright red poppy
pins in their lapels, in honor of the U.K.’s Armistice Day commemoration, but their expressions
were somber: they had been called before the Public Accounts Committee to answer questions

1
http://intltax.typepad.com/intltax_blog/2009/07/famous-tax-quotes-4-5.html (February 11, 2016).
2
From interview with CNBC Steve Leisman, in Business Insider, “Obama Goes On The Attack Against Companies
Doing Inversions To Move To Countries Where They Pay Less In Taxes,”
July 25, 2014, http://www.businessinsider.com/obama-on-tax-inversions-2014-7 (November 15, 2015).
Sheila Melvin and Professors Lisa De Simone, Jeff Hoopes (The Ohio State University), and Rebecca Lester
prepared this case as the basis for class discussion rather than to illustrate either effective or ineffective handling of
an administrative situation.

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related to alleged corporate tax avoidance at their respective companies. The session quickly
turned into a grilling.3 “We are not accusing you of being illegal,” the committee chair told
Brittin: “we are accusing you of being immoral.”4

Such scenes have become increasingly common, with an increasing number of global
corporations experiencing negative publicity over complicated tax structures established to
minimize their tax burdens. In the case of U.S. companies, there has been a growing outcry over
“inversions,” a means of restructuring the business so that the U.S. parent was replaced by a
foreign parent entity in a nation with lower corporate tax rates. Apple CEO Tim Cook was
called to testify regarding Apple’s tax strategies by the U.S. Senate Permanent Subcommittee on
Investigations in April 2013, and executives from Apple, Google, and Microsoft faced an
Australian senate inquiry into their alleged tax avoidance in April 2015.5 Criticism of corporate
tax planning—also called tax avoidance—was dubbed “tax shaming,” and even prompted
consumer boycotts.6 Some analysts have suggested that companies begin considering tax policy
as an aspect of corporate social responsibility, rather than simply a fiscal decision.7

Even though many companies are affected by this “tax shaming,” a 2014 Ernst & Young survey
of 830 tax and finance executives in 25 jurisdictions revealed that most had “little appetite” for
directly engaging the media, with 65 percent agreeing (or strongly agreeing) that “engaging with
the press on tax issues is a no-win proposition for business” and only 13 percent disagreeing.8

A VARIETY OF RESPONSES

Results of the Ernst & Young study notwithstanding, some companies did indeed respond to
public pressure regarding their tax planning. These included the following:

Starbucks Corporation

In the wake of a Reuters special report,9 Starbucks was widely criticized for reporting to
shareholders and analysts that it was “profitable” in the U.K. even though it hadn’t paid U.K.

3
Video clips of the hearing can be seen here: IB Times UK, “Amazon, Starbucks, Google, grilled by MPs over tax,”
https://www.youtube.com/watch?v=3TeZlt3dRig (February 2, 2016).
4
Public Accounts Committee - Minutes of Evidence, HC 716
http://www.publications.parliament.uk/pa/cm201213/cmselect/cmpubacc/716/121112.htm (February 2, 2016).
5
Cook’s testimony can be seen here: https://www.youtube.com/watch?v=s7H1Y6Nr3c4 and the Australian hearings
can be seen and read about here: http://www.abc.net.au/news/2015-04-08/google-apple-microsoft-deny-tax-
avoidance-senate-inquiry/6379024 (February 2, 2016).
6
See Vanessa Berford and Gerry Holt, “Google, Amazon, Starbucks: the rise of ‘tax shaming,’” BBC News
Magazine, May 21, 2013, http://www.bbc.com/news/magazine-20560359 (February 2, 2016).
7
See Richard Hardyment, Peter Truesdale and Mike Tuffrey, “Tax as a Corporate Responsibility Issue: The
Implications for Multinationals,” May 2011, http://corporate-citizenship.com/wp-content/uploads/Tax-as-a-
Corporate-Responsibility-Issue.pdf (February 2, 2016).
8
Ernst & Young 2014 tax risk and controversy survey highlights, “Reputation risk,”
http://ww.ey.com/GL/en/Services/Tax/Tax-policy-and-controversy/EY-2014-tax-risk-controversy-survey-02-
reputation-risk (February 2, 2016).
9
Tom Bergin, “Special Report – How Starbucks avoids UK taxes,” Reuters, October 15, 2012,
http://uk.reuters.com/article/2012/10/15/uk-britain-starbucks-tax-idUKBRE89E0EW20121015 (February 2, 2016).

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corporate taxes in several years.10 Starbucks initially responded to the criticism by “setting the
record straight,” as CEO Howard Schultz entitled a blog post on the issue.11 In his post, Schultz
said that Starbucks had paid more than £160 million in various taxes since entering the U.K.
market in 1998 and stated: “Starbucks has always paid taxes in the U.K. despite recent
suggestions to the contrary. In every country where we do business, Starbucks adheres to both
the letter and spirit of the law regarding our business practices, and the U.K. is no exception.”
Starbucks also publicly stated that these tax years had been audited by Her Majesty’s Revenue &
Customs (HMRC) and were found to be compliant. However, public backlash prompted a
partial boycott of Starbucks in the U.K. On December 5, 2012—following reports that
competitor Costa had seen sales increase during the boycott12—Starbucks agreed voluntarily to
pay U.K. corporate taxes of about £10 million ($16.05 million) per year starting in 2013 through
at least 2014.13 Starbucks would pay the extra taxes by refraining from claiming the tax
deductions that had enabled it to reduce its tax bill to zero. In February 2015, Starbucks
announced that, in 2014, it had made a small pretax profit in the U.K. (£1.05 million) for the first
time since opening for business there 17 years earlier.14

SC Johnson & Son

In 2011, Reuters columnist David Cay Johnston wrote a blog post about SC Johnson’s tax
planning that began, “The heirs of the SC Johnson fortune, the richest family in Wisconsin with
four multi-billionaires according to Forbes, paid not a penny of Wisconsin corporate income tax
on profits from their global household products business and two smaller companies from 2000
through 2008, public records show.”15 The article suggested that SC Johnson may have managed
to avoid paying the tax by converting Wisconsin taxable profits into tax-deductible expenses (by
paying royalties and interest to family-owned subsidiaries in low or no-tax jurisdictions) and
asked, “Why must ordinary Wisconsin businesses and individuals bear the burden of state
government while the richest family in the state runs tax-free enterprises?”16

SC Johnson replied to the Reuters piece in a press release posted to its corporate website, calling
the accusations “sensationalist” and accusing the journalist of using “questionable sources and
twisting facts” to craft “a completely misleading article designed to persuade readers that SC

10
BBC, “Starbucks 'paid just £8.6m UK tax in 14 years,'” October 16, 2012
http://www.bbc.com/news/business-19967397 (February 2, 2016).
11
Howard S., “Setting the Record Straight on Starbucks UK Taxes and Profitability, “October 23, 2012
http://www.starbucks.co.uk/blog/setting-the-record-straight-on-starbucks-uk-taxes-and-profitability/1241 (February
2, 2016).
12
“Costa Coffee Attracts Nearly 4m Customers a Week,” The Guardian, December 11, 2012,
http://www.theguardian.com/business/2012/dec/11/costa-coffee-sales-starbucks (February 2, 2016).
13
Eric Pfanner, “Starbucks Offers to Pay More British Tax Than Required,” The New York Times, December 6,
2012, http://www.nytimes.com/2012/12/07/business/global/07iht-uktax07.html?_r=1 (February 2, 2016).
14
“Starbucks brews up first UK profit in 17 years,” The Guardian, February 4, 2015,
http://www.theguardian.com/business/2015/feb/04/starbucks-first-uk-profits (February 2, 2016).
15
David Cay Johnston, “Wiping out Wisconsin taxes,” Reuters, August 26, 2011, http://blogs.reuters.com/david-
cay-johnston/2011/08/26/wiping-out-wisconsin-taxes/ (February 2, 2016).
16
Ibid.

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Johnson is acting unethically and illegally.”17 It rebutted Johnston’s claims point-by-point and
then opined, “There is important dialogue that should be happening in our country about taxes.
But rather than discussing important tax issues—or even reporting facts—Mr. Johnston and his
publishers appear to simply want a sensationalist and inaccurate ‘gotcha’ story that will drive
media traffic.”18

Caterpillar Inc.

Caterpillar faced a significant amount of pressure after a 2014 U.S. Senate Permanent
Subcommittee on Investigations report entitled “Caterpillar’s Offshore Tax Strategy.” 19 The 99-
page report claimed that the “iconic American corporation” had “paid millions of dollars for a
tax strategy that shifted billions of dollars in profits away from the United States and into
Switzerland, where Caterpillar had negotiated an effective corporate tax rate of 4 percent to 6
percent.”20 Caterpillar launched a vigorous defense of its tax practices at an April 1, 2014, Senate
hearing, insisting that the Swiss subsidiary was a genuine business rather than an entity used for
tax avoidance.21 “We cannot remain competitive, we cannot create jobs, and we cannot increase
exports by incurring unnecessary expenses,” Julie Lagacy, Caterpillar’s vice president for
finance services, said at the hearing. “Americans pay the taxes they owe, but not more. And as an
American company, we pay the taxes we owe, not more.”22 On the eve of the hearing, the
company also issued a press release in which Lagacy was quoted saying, “Caterpillar takes very
seriously its obligation to follow tax law and pay what it owes.”23

ExxonMobil Corp.

Periodically there are allegations in the media that oil and gas companies pay nothing in taxes, or
get special tax breaks. For example, in 2010, the New York Times ran an editorial entitled “Big
Oil’s Good Deal” in which it claimed “No industry enjoys the array of tax breaks and subsidies

17
Kelly M. Semrau, “Statement in Response to David Cay Johnston August 26 Article Entitled, “Wiping Out
Wisconsin Taxes,” August 30, 2011, http://www.scjohnson.com/en/press-room/press-releases/08-30-2011/www-
scjohnson-com.aspx (February 2, 2016).
18
Ibid.
19
United States Senate Permanent Subcommittee on Investigations, Committee on Homeland Security and
Governmental Affairs, “Caterpillar’s Offshore Tax Strategy,” April 1, 2014,
http://www.hsgac.senate.gov/download/report-caterpillars-offshore-tax-strategy-april-1-2014 (February 2, 2016).
20
United States Senate Permanent Subcommittee on Investigations, Committee on Homeland Security and
Governmental Affairs, “Caterpillar’s Offshore Tax Strategy,” April 1, 2014,
http://www.hsgac.senate.gov/download/report-caterpillars-offshore-tax-strategy-april-1-2014 (February 2, 2016).
21
Mary Williams Walsh, “At Hearing, Caterpillar Defends Tax Practices,” The New York Times, April 1, 2014,
http://www.nytimes.com/2014/04/02/business/at-hearing-caterpillar-defends-tax-practices.html?_r=0
(February 2, 2016).
22
“Caterpillar execs testify about alleged $2.4 billion tax dodge,” Bloomberg, April 1, 2014,
http://www.chicagobusiness.com/article/20140401/NEWS02/140409996/caterpillar-execs-testify-about-alleged-2-
4-billion-tax-dodge (February 2, 2016).
23
“Caterpillar executive to testify before U.S. Senate subcommittee about company’s business structure,”
Caterpillar Corporate Press Release, March 31, 2014,
http://www.caterpillar.com/en/news/corporate-press-releases/h/caterpillar-executive-to-testify-before-us-senate-
subcommittee.html (February 2, 2016).

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that the oil and gas industry does. No industry needs them less.”24 ExxonMobil responded the
next day with a posting to its website called “The Real Deal on Taxes.” The response charged
the Times with “providing an inaccurate and incomplete accounting of the oil and gas industry’s
true tax burden”25 and said, “The oil and gas industry routinely pays more taxes than it earns.” It
continued, “ExxonMobil alone paid $22.8 billion more to federal, state and local governments in
income and other taxes from 2004 to 2009 than it earned in the United States during the same
period.”

General Electric Company

In 2011, New York Times journalist David Kocieniewski wrote a series of articles called “But
Nobody Pays That,” dedicated to “digging out and exposing the obscure provisions that
businesses and the wealthiest Americans exploit to drive their tax bills down to rock bottom.”26
The series—which won the 2012 Pulitzer Prize for explanatory journalism—included an article
entitled “G.E.’s Strategies Let it Avoid Taxes Altogether.” The article stated that GE reported
worldwide profits of $14.2 billion in 2010, $5.1 billion of which came from its U.S. operations,
but nonetheless paid no U.S. taxes and in fact “claimed a tax benefit of $3.2 billion.”27

In contrast to many other companies, GE responded vehemently to the charges via multiple and
varied channels, with a number of different executives voicing the company’s response. CEO
Jeffrey Immelt gave speeches and press interviews in which he explained, “We lost $32 billion in
GE Capital as a result of the financial crisis”28 to explain the low U.S. tax bill and offered the
same response over Twitter. Gary Sheffer, GE’s VP for communications and public affairs,
wrote a letter to the editor of the Times that likewise attributed the company’s low 2010 tax rate
to losses at GE Capital.29 More detailed responses were posted to GE’s website,30 including a
document called “Excerpts from GE’s responses to New York Times’ David Kocieniewski re: GE
Taxes.”31

A GE company representative provided insight into GE’s view of reputational risk and tax
planning, publicly stating, “At the same time, from a somewhat more defensive perspective, a
key role of the tax department, a key part of the mission statement, is to manage risks, both legal
and reputational, whether it’s… a “Wall Street Journal” test or simply wondering whether, if it
24
“Big Oil’s Good Deal,” The New York Times, July 11, 2010,
http://www.nytimes.com/2010/07/12/opinion/12mon1.html?ref=opinion (February 2, 2016).
25
Ken Cohen, “The Real Deal on Taxes,” ExxonMobil Perspectives, July 13, 2010,
http://www.exxonmobilperspectives.com/2010/07/13/the-real-deal-on-taxes/ (February 2, 2016).
26
David Kocieniewski, “But Nobody Pays That,” The New York Times,
http://topics.nytimes.com/top/features/timestopics/series/but_nobody_pays_that/index.html (February 2, 2016)
27
David Kocieniewski, “G.E.’s Strategies Let It Avoid Taxes Altogether,” The New York Times, March 24, 2011,
http://www.nytimes.com/2011/03/25/business/economy/25tax.html (February 2, 2016).
28
“Jeffrey Immelt Responds to Critics of GE’s Taxes,” http://abcnews.go.com/WNT/video/jeffrey-immelt-responds-
critics-ges-taxes-private-sector-ceo-president-obama-adviser-conflit-of-interest-politics-13269844
(February 2, 2016).
29
Gary Sheffer, “G.E.’s Response on Taxes,” The New York Times (letter to the editors), March 31, 2013,
http://www.nytimes.com/2011/03/31/opinion/l31ge.html?_r=1 (February 2, 2016).
30
“More on GE and Taxes,” GE Reports, March 28, 2011,
http://web.archive.org/web/20110505204019/http:/www.gereports.com/more-on-ge-and-taxes/? (February 2, 2016).
31
“Excerpts from GE’s response to New York Times’ David Kocieniewski re: GE Taxes,” GE Reports,
http://files.gereports.com/wp-content/uploads/2011/03/GE-Tax-QA.pdf (February 2, 2016).

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were discussed publicly, would this strategy, whether legal or not, hurt the company’s
reputation.”32

The Walgreen Company

In 2014, the pharmacy retail chain Walgreens considered inverting, a controversial tax strategy
that changes the tax residency of a company and often results in tax savings. Alliance Boots, the
largest European drug retailer, and Walgreens considered structuring a merger such that the post-
transaction merged firm would be headquartered offshore in Switzerland.

As a pharmacy, Walgreens earned a significant portion of its revenue from federal government
programs such as Medicare and Medicaid. The blistering criticism that followed announcement
of the planned inversion included a letter from Illinois Senator Dick Durbin. “Walgreens could
dodge an estimated nearly $4 billion in taxes over the next 5 years, if your company inverts,”
Durbin wrote. He continued:

I recognize that potential windfall in profit is an attractive option for shareholders.


On the other hand, much of Walgreens’ financial success was built on programs
and infrastructure provided by the U.S. government and paid for by U.S.
taxpayers… Nearly 25 percent of Walgreens profits were from U.S.-funded
Medicare and Medicaid programs… If you and Walgreens’ board of directors
decide to invert to avoid U.S taxes, you will be turning your backs on the very
people that have allowed Walgreens to thrive and prosper… Is “the corner of
happy and healthy” somewhere in the Swiss Alps? 33

As the political controversy grew, Walgreens ultimately bowed to the political pressure. While it
completed the acquisition of Alliance Boots as planned, it did not re-domicile. In highlighting
the details of the deal, Walgreens’ CEO justified the decision by stating that the company was
not sure the inversion “could withstand almost certain, intense protracted IRS scrutiny,” and
noting that “an inversion was not the right course of action for our combined future enterprise.”34

This led to praise from the media and politicians, and a pillorying from the market—Walgreens’
share price plunged approximately 15 percent following the announcement that it would remain
a U.S.-incorporated company.35 George Hill, a senior analyst with Deutsche Bank, commented
on the market’s reaction in a conversation with the New York Times, noting that “…an inversion
32
R.G. Larsen, R.D. Beran, R. D’Avino, W.D. Hawkins, “Session 5: developing a global corporate tax risk
strategy,” Taxes–The Tax Magazine (June 2007): 83-94.
33
“Durbin To Walgreens: Renouncing Your American Corporate Citizenship Hard To Defend,” Dick Durbin
Newsroom Press Release, July 22, 2014,
http://www.durbin.senate.gov/newsroom/press-releases/durbin-to-walgreens-renouncing-your-american-corporate-
citizenship-hard-to-defend (February 2, 2016).
34
U.S. Securities and Exchange Commission, Form 8-K, Current Report, Walgreen Co. August 5, 2014,
http://investor.walgreensbootsalliance.com/secfiling.cfm?filingid=1193125-14-298537&cik=104207
(February 2, 2016).
35
“The Market May Have Overreacted To Walgreen’s Decision Against Tax Inversion,” Forbes, August 8, 2014,
http://www.forbes.com/sites/greatspeculations/2014/08/08/the-market-may-have-overreacted-to-walgreens-decision-
against-tax-inversion/2/ (February 2, 2016).

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could have been politically and socially untenable” He added, as paraphrased by the Times, that
“Shareholders were nonetheless disappointed… because over the long term the savings that
would have been generated by an inversion far outweighed the short-term impact of negative
publicity and the costs related to restructuring a deal.”36

Pfizer Inc.37

In late 2015, Pfizer also faced criticism as it mulled inverting. As the 2016 presidential primaries
neared, candidates from left and right alike offered their opinions on inversions. Donald Trump,
a Republican candidate for president, noted that “The fact that Pfizer is leaving our country with
a tremendous loss of jobs is disgusting….”38 Hilary Clinton, a Democrat presidential candidate,
opined that “We cannot delay in cracking down on inversions that erode our tax base.”39

In response to the backlash surrounding the potential inversion, the CEO of Pfizer, Ian C. Read,
assured the public that the tax move would actually create, rather than eliminate, U.S. jobs, as the
firm would save cash on taxes and have that money to reinvest. In a conference call with
financial analysts, Read noted that “We’ve assessed the legal, regulatory, and political landscape
and are moving forward with our strategy to combine these two great companies for the benefit
of the patients and to bring value to shareholders…That is our obligation.”

The political criticism did not deter Pfizer from its intention to invert, and the deal was expected
to be finalized in 2016.

Apple Inc.

As one of the most visible firms on earth, Apple also faced frequent criticism for its tax choices.
Articles such as the New York Times’ “How Apple Sidesteps Billions in Taxes”40 were widely
read, and stirred much discussion. Indeed, the criticism of Apple’s tax planning was so well
received that one of the authors of the Times article, David Kocieniewski, was part of a team that
received a Pulitzer Prize for, in part, a “penetrating look into business practices by Apple and

36
Alexandra Stevenson and Chad Bray, “Walgreen Shies Away From Moving its Tax Base to Britain,” The New
York Times, August 6, 2014, http://dealbook.nytimes.com/2014/08/06/walgreen-to-pay-5-27-billion-plus-shares-for-
alliance-boots/ (February 2, 2016).
37
All quotes in this section come from Michael J. de la Merced, David Gelles, and Leslie Picker, “Pfizer Chief
Defends Merger with Allergan as Good for U.S.,” The New York Times, November 23, 2015,
http://www.nytimes.com/2015/11/24/business/dealbook/pfizer-allergan-merger-inversion.html?_r=0
(February 2, 2016).
38
Colin Campbell, “Donald Trump slams Pfizer’s ‘disgusting’ megamerger,” Business Insider,” November 23,
2015, http://www.businessinsider.com/donald-trump-pfizer-allergan-deal-inversion-2015-11 (February 11, 2016).
39
Jennifer Epstein, “Clinton Says Pfizer-Allergan leaves Taxpayers ‘Holding the Bag,’” Bloomberg Politics,
November 23, 2015, http://www.bloomberg.com/politics/articles/2015-11-23/clinton-says-pfizer-allergan-leaves-
taxpayers-holding-the-bag- (February 11, 2016).
40
Charles Duhigg and David Kocieniewski, “How Apple Sidesteps Billions in Taxes,” The New York Times, April
28, 2012, http://www.nytimes.com/2012/04/29/business/apples-tax-strategy-aims-at-low-tax-states-and-nations.html
(February 2, 2016).

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other technology companies that illustrates the darker side of a changing global economy for
workers and consumers.”41

Apple consistently stood by its planning. In testimony to the U.S. Senate Permanent
Subcommittee on Investigations in 2013, Cook noted “We pay all the taxes we owe, every single
dollar… We don’t depend on tax gimmicks,” or “stash money on some Caribbean island.”42
Responding to allegations of aggressive tax planning on “60 Minutes” in 2015, Cook said, “That
is total political crap. There is no truth behind it. Apple pays every tax dollar we owe… We pay
more taxes in this country than anyone… This is a tax code…that was made for the industrial
age, not the digital age. It’s backwards. It’s awful for America. It should have been fixed many
years ago. It’s past time to get it done.”43

DISCUSSION QUESTIONS:

 Who are all of the stakeholders in a company’s tax behavior? That is, what groups can be
affected by a firm’s tax decisions?
 Which of these groups does the firm have legal obligations to look after? Which of these
groups, if any, does the firm have a moral obligation to look after?
 What is the obligation of a U.S. corporation to pay its “fair share” of taxes? Is this a moral,
ethical, business, or other decision? What is a “fair share”?
 What is the obligation of a U.S. corporation to shareholders when it comes to expenses such
as U.S. tax liabilities? How do you reconcile your answer with the previous questions?
 What are the potential non-tax costs associated with engaging in “aggressive” corporate tax
behavior? How should “aggressive” be defined?
 If faced with accusations of tax misgivings, what have companies done? What works? What
does not work?

41
“David Kocieniewski,” The New York Times,
http://topics.nytimes.com/top/reference/timestopics/people/k/david_kocieniewski/index.html (February 2, 2016).
42
Kevin McCoy, “Apple’s Tax Ingenuity a Tough Sell for Senate Critics,” USA Today, May 21, 2013,
http://www.usatoday.com/story/money/business/2013/05/21/apple-tax-stakes/2347745/ (February 2, 2016).
43
“Apple CEO calls overseas tax rap ‘political crap,’” CBS News, December 18, 2015,
http://www.cbsnews.com/news/apple-60-minutes-ceo-tim-cook/ (February 2, 2016).

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