Annual report pursuant to Section 13 and 15(d)

Income Taxes

v3.10.0.1
Income Taxes
12 Months Ended
Dec. 31, 2018
Income Tax Disclosure [Abstract]  
Income Taxes Income Taxes
We operate and are required to file tax returns in the U.S. and various foreign jurisdictions.
The benefit (provision) for incomes taxes consists of the following:
 
For the years ended December 31,
(In thousands)
2018
 
2017
 
2016
Current
 
 
 
 
 
Federal
$

 
$
2,398

 
$

State
6,318

 
(1,737
)
 
(2,931
)
Foreign
(2,738
)
 
(3,424
)
 
(2,438
)
 
3,580

 
(2,763
)
 
(5,369
)
Deferred
 
 
 
 
 
Federal
2,045

 
(10,759
)
 
25,739

State
5,673

 
(2,738
)
 
10,657

Foreign
27,428

 
(2,595
)
 
25,088

 
35,146

 
(16,092
)
 
61,484

Total, net
$
38,726

 
$
(18,855
)
 
$
56,115


Deferred income tax assets and liabilities as of December 31, 2018 and 2017 are comprised of the following:
(In thousands)
December 31, 2018
 
December 31, 2017
Deferred income tax assets:
 
 
 
Federal net operating loss
$
101,662

 
$
79,356

State net operating loss
59,126

 
46,571

Foreign net operating loss
34,407

 
35,710

Research and development expense
2,893

 
4,038

Tax credits
21,669

 
20,040

Stock options
30,430

 
28,830

Accruals
6,294

 
5,719

Equity investments
12,904

 
8,454

Bad debts
414

 
20,302

Lease liability
1,370

 
2,205

Foreign credits
10,837

 
11,113

Equity securities
2,447

 
2,406

Other
11,668

 
17,448

Deferred income tax assets
296,121

 
282,192

Deferred income tax liabilities:
 
 
 
Intangible assets
(250,640
)
 
(280,962
)
Fixed assets
(3,486
)
 
(5,572
)
Other
(2,272
)
 
(2,325
)
Deferred income tax liabilities
(256,398
)
 
(288,859
)
Net deferred income tax assets (liabilities)
39,723

 
(6,667
)
Valuation allowance
(154,916
)
 
(142,062
)
Net deferred income tax liabilities
$
(115,193
)
 
$
(148,729
)

As of December 31, 2018, we have federal, state and foreign net operating loss carryforwards of approximately $606.6 million, $801.8 million and $152.3 million, respectively, that expire at various dates through 2038 unless indefinite in nature. Included in the foreign net operating losses is $86.1 million related to OPKO Biologics. As of December 31, 2018, we have research and development tax credit carryforwards of approximately $21.7 million that expire in varying amounts through
2038. As of each reporting date, management considers new evidence, both positive and negative, that could affect its view of the future realization of deferred tax assets. We have determined a valuation allowance is required against all of our net deferred tax assets that we do not expect to be utilized by the reversing of deferred income tax liabilities.
Under Section 382 of the Internal Revenue Code of 1986, as amended, certain significant changes in ownership may restrict the future utilization of our income tax loss carryforwards and income tax credit carryforwards in the U.S. The annual limitation is equal to the value of our stock immediately before the ownership change, multiplied by the long-term tax-exempt rate (i.e., the highest of the adjusted federal long-term rates in effect for any month in the three-calendar-month period ending with the calendar month in which the change date occurs). This limitation may be increased under the IRC Section 338 Approach (IRS approved methodology for determining recognized Built-In Gain). As a result, federal net operating losses and tax credits may expire before we are able to fully utilize them.
During 2008, we conducted a study to determine the impact of the various ownership changes that occurred during 2007 and 2008. As a result, we have concluded that the annual utilization of our net operating loss carryforwards (“NOLs”) and tax credits is subject to a limitation pursuant to Internal Revenue Code Section 382. Under the tax law, such NOLs and tax credits are subject to expiration from 15 to 20 years after they were generated. As a result of the annual limitation that may be imposed on such tax attributes and the statutory expiration period, some of these tax attributes may expire prior to our being able to use them. There is no current impact on these financial statements as a result of the annual limitation. This study did not conclude whether OPKO’s predecessor, eXegenics, pre-merger NOLs were limited under Section 382. As such, of the $606.6 million of federal net operating loss carryforwards, at least approximately $53.4 million may not be able to be utilized.
We file federal income tax returns in the U.S. and various foreign jurisdictions, as well as with various U.S. states and the Ontario and Nova Scotia provinces in Canada. We are subject to routine tax audits in all jurisdictions for which we file tax returns. Tax audits by their very nature are often complex and can require several years to complete. It is reasonably possible that some audits will close within the next twelve months, which we do not believe would result in a material change to our accrued uncertain tax positions.
U.S. Federal: Under the tax statute of limitations applicable to the Internal Revenue Code, we are no longer subject to U.S. federal income tax examinations by the Internal Revenue Service for years before 2015. However, because we are carrying forward income tax attributes, such as net operating losses and tax credits from 2015 and earlier tax years, these attributes can still be audited when utilized on returns filed in the future.
State: Under the statute of limitations applicable to most state income tax laws, we are no longer subject to state income tax examinations by tax authorities for years before 2014 in states in which we have filed income tax returns. Certain states may take the position that we are subject to income tax in such states even though we have not filed income tax returns in such states and, depending on the varying state income tax statutes and administrative practices, the statute of limitations in such states may extend to years before 2014.
Foreign: Under the statute of limitations applicable to our foreign operations, we are generally no longer subject to tax examination for years before 2013 in jurisdictions where we have filed income tax returns.
Tax Cuts and Jobs Act
On December 22, 2017, the 2017 Tax Cuts and Jobs Act (the “Tax Act”) was enacted into law and the new legislation contains several key tax provisions, including a reduction of the corporate income tax rate from 35% to 21% effective January 1, 2018 and a one-time mandatory transition tax on accumulated foreign earnings, among others. We were required to recognize the effect of the tax law changes in the period of enactment, such as remeasuring our U.S. deferred tax assets and liabilities, as well as reassessing the net realizability of our deferred tax assets and liabilities. In December 2017, the SEC staff issued Staff Accounting Bulletin No. 118, Income Tax Accounting Implications of the Tax Cuts and Jobs Act (SAB 118), which allowed us to record provisional amounts during a measurement period not to extend beyond one year of the enactment date. As of December 22, 2018 we completed our analysis in accordance with SAB 118 and recorded immaterial adjustments.
Effective January 1, 2018, the Tax Act provides for a new global intangible low-taxed income (GILTI) provision. Under the GILTI provision, certain foreign subsidiary earnings in excess of an allowable return on the foreign subsidiary’s tangible assets are included in U.S. taxable income. The Company currently estimates GILTI will be immaterial for the year ended December 31, 2018, although interpretive guidance continues to be issued and future guidance may impact this analysis. The Company has not recorded any deferred taxes for future GILTI inclusions as any future inclusions are expected to be treated as a period expense and offset by net operating loss carryforwards in the U.S.
The Tax Act affects the tax treatment of foreign earnings and profits (“E&P”) and results in a one-time transition tax on our post-1986 foreign E&P that we previously deferred from U.S. income tax expense. We determined that we did not owe any
transition tax and we have not provided for additional income taxes on any remaining undistributed foreign E&P not subject to the transition tax, or any outside tax basis differences inherent in our foreign subsidiaries. On January 15, 2019, the U.S. Department of Treasury released final regulations related to the one-time transition tax. Although the Company's assessment of these final rules is not complete, they are not expected to materially impact the Company’s financial statements.
Unrecognized Tax Benefits
As of December 31, 2018, 2017, and 2016, the total amount of gross unrecognized tax benefits was approximately $17.5 million, $21.3 million, and $27.5 million, respectively. As of December 31, 2018, the total gross unrecognized tax benefit of $17.5 million consisted of increases of $8.4 million as a result of current year activity, and decreases of $4.6 million as a result of the lapse of statutes of limitations. As of December 31, 2018, the total amount of unrecognized tax benefits that, if recognized, would affect our effective income tax rate was $(14.2) million. We account for any applicable interest and penalties on uncertain tax positions as a component of income tax expense and we recognized $(1.9) million and $0.4 million of interest expense for the years ended December 31, 2018 and 2017, respectively. As of December 31, 2017 and 2016, $(12.4) million and $6.1 million of the unrecognized tax benefits, if recognized, would have affected our effective income tax rate. We believe it is reasonably possible that approximately $1.3 million of unrecognized tax benefits may be recognized within the next twelve months, mainly due to anticipated statute of limitations lapses in various jurisdictions.
The following summarizes the changes in our gross unrecognized income tax benefits.
 
For the years ended December 31,
(In thousands)
2018
 
2017
 
2016
Unrecognized tax benefits at beginning of period
$
21,347

 
$
27,545

 
$
8,595

Gross increases – tax positions in prior period

 
44

 
1,443

Gross increases – tax positions in current period
8,384

 

 
18,472

Gross decreases – tax positions in prior period
(7,597
)
 
(1,724
)
 
(671
)
Lapse of Statute of Limitations
(4,621
)
 
(4,518
)
 
(294
)
Unrecognized tax benefits at end of period
$
17,513

 
$
21,347

 
$
27,545


Other Income Tax Disclosures
The significant elements contributing to the difference between the federal statutory tax rate and the effective tax rate are as follows:
 
For the years ended December 31,
 
2018
 
2017
 
2016
Federal statutory rate
21.0
 %
 
35.0
 %
 
35.0
 %
State income taxes, net of federal benefit
4.3
 %
 
5.1
 %
 
5.2
 %
Foreign income tax
(6.0
)%
 
(5.3
)%
 
(14.2
)%
Income Tax Refunds
3.6
 %
 
 %
 
 %
Research and development tax credits
1.9
 %
 
0.6
 %
 
5.4
 %
Non-Deductible components of Convertible Debt
(0.2
)%
 
0.1
 %
 
2.2
 %
Valuation allowance
(7.1
)%
 
(28.4
)%
 
9.5
 %
Rate change effect
8.1
 %
 
(10.8
)%
 
21.2
 %
Non-deductible items
(2.9
)%
 
(1.9
)%
 
(1.9
)%
Unrecognized tax benefits
(1.8
)%
 
(0.7
)%
 
(1.0
)%
Other
(0.7
)%
 
(0.4
)%
 
(7.7
)%
Total
20.2
 %
 
(6.7
)%
 
53.7
 %

The following table reconciles our losses before income taxes between U.S. and foreign jurisdictions:
  
For the years ended December 31,
(In thousands)
2018
 
2017
 
2016
Pre-tax income (loss):
 
 
 
 
 
U.S.
$
(132,102
)
 
$
(247,938
)
 
$
(92,175
)
Foreign
(59,664
)
 
(38,457
)
 
(12,299
)
Total
$
(191,766
)
 
$
(286,395
)
 
$
(104,474
)

Prior to the enactment of the Tax Act, the Company regularly determined certain foreign earnings to be indefinitely reinvested outside the United States. Our intent is to permanently reinvest these funds outside the U.S. and our current plans do not demonstrate a need to repatriate the cash to fund U.S. operations. However, if these funds were repatriated, we would be required to accrue and pay applicable U.S. taxes (if any) and withholding taxes payable to foreign tax authorities.