Annual report pursuant to Section 13 and 15(d)

Income Taxes

v3.6.0.2
Income Taxes
12 Months Ended
Dec. 31, 2016
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)
2016
 
2015
 
2014
Current
 
 
 
 
 
Federal
$

 
$
430

 
$
225

State
(2,931
)
 
(2,157
)
 
247

Foreign
(2,438
)
 
(8,134
)
 
(1,514
)
 
(5,369
)
 
(9,861
)
 
(1,042
)
Deferred
 
 
 
 
 
Federal
25,739

 
109,286

 

State
10,657

 
12,327

 
(167
)
Foreign
25,088

 
1,923

 
1,185

 
61,484

 
123,536

 
1,018

Total, net
$
56,115

 
$
113,675

 
$
(24
)

Deferred income tax assets and liabilities as of December 31, 2016 and 2015 are comprised of the following: 
(In thousands)
December 31, 2016
 
December 31, 2015
Deferred income tax assets:
 
 
 
Federal net operating loss
$
76,792

 
$
71,658

State net operating loss
36,285

 
14,227

Foreign net operating loss
32,895

 
33,701

Research and development expense
3,246

 
5,138

Tax credits
20,894

 
7,388

Stock options
36,485

 
24,756

Accruals
8,306

 
7,086

Equity investments
7,011

 
4,420

Bad debts
14,283

 
38,809

Lease liability
3,233

 
7,022

Foreign credits
10,253

 

Available for sale securities
4,792

 

Other
7,795

 
7,104

Deferred income tax assets
262,270

 
221,309

Deferred income tax liabilities:
 
 
 
Intangible assets
(354,043
)
 
(386,588
)
Fixed assets
(13,710
)
 
(17,072
)
Other
(2,121
)
 
(1,538
)
Deferred income tax liabilities
(369,874
)
 
(405,198
)
Net deferred income tax liabilities
(107,604
)
 
(183,889
)
Valuation allowance
(55,415
)
 
(42,147
)
Net deferred income tax liabilities *
$
(163,019
)
 
$
(226,036
)
 
 
 
 
* The components of December 31, 2016 Net deferred income tax liability is presented on the Consolidated Balance Sheet as follows: $(165,331) within Deferred tax liabilities, net and $2,312 within Other assets.
 
 
 

The changes in deferred income tax assets, liabilities and valuation allowances at December 31, 2016 reflect the acquisition of various legal entities, including the tax attributes. The acquisitions were accounted for under U.S. GAAP as stock acquisitions and business combinations. As of December 31, 2016, we have federal, state and foreign net operating loss carryforwards of approximately $409.3 million, $406.6 million and $186.6 million, respectively, that expire at various dates through 2036. Included in the foreign net operating losses is $98.6 million related to OPKO Biologics. As of December 31, 2016, we have research and development tax credit carryforwards of approximately $18.5 million that expire in varying amounts through 2036. 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.
As a result of certain realization requirements of ASC 718, Compensation - Stock Compensation, the table of deferred tax assets and liabilities shown above does not include certain deferred tax assets as of December 31, 2016 and 2015, that arose directly from (or the use of which was postponed by) tax deductions related to equity compensation that are greater than the compensation recognized for financial reporting. Equity will be increased by $33.7 million if and when such deferred tax assets are ultimately realized. The Company uses ASC 740 ordering when determining when excess tax benefits have been realized.
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 $409.3 million of federal net operating loss carryforwards, at least approximately $53.4 million may not be able to be utilized.
Uncertain Income Tax Positions
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 Quebec 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 2013. However, because we are carrying forward income tax attributes, such as net operating losses and tax credits from 2013 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 2013 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 2013.
Foreign: Under the statute of limitations applicable to our foreign operations, we are generally no longer subject to tax examination for years before 2011 in jurisdictions where we have filed income tax returns.
Unrecognized Tax Benefits
As of December 31, 2016, 2015, and 2014, the total amount of gross unrecognized tax benefits was approximately $27.5 million, $8.6 million, and $5.9 million, respectively. As of December 31, 2016, the total gross unrecognized tax benefit of $27.5 million consisted of increases of $19.9 million as a result of current year activity, and decreases of $0.3 million as a result of the lapse of statutes of limitations. As of December 31, 2016, the total amount of unrecognized tax benefits that, if recognized, would affect our effective income tax rate was $6.1 million. We account for any applicable interest and penalties on uncertain tax positions as a component of income tax expense and we recognized $0.1 million and $0.3 million of interest expense for the years ended December 31, 2016 and 2015, respectively. As of December 31, 2015 and 2014, $0.7 million and $0.9 million of the unrecognized tax benefits, if recognized, would have affected our effective income tax rate. We believe it is reasonably possible that approximately $4.1 million of unrecognized tax benefits may be recognized within the next twelve months.
The following summarizes the changes in our gross unrecognized income tax benefits.
 
For the years ended December 31,
(In thousands)
2016
 
2015
 
2014
Unrecognized tax benefits at beginning of period
$
8,595

 
$
5,890

 
$
9,231

Gross increases – tax positions in prior period
1,443

 
955

 
524

Gross increases – tax positions in current period
18,472

 
2,543

 
193

Gross decreases – tax positions in prior period
(671
)
 
(176
)
 
(396
)
Lapse of Statute of Limitations
(294
)
 
(617
)
 
(472
)
Settlements

 

 
(3,190
)
Unrecognized tax benefits at end of period
$
27,545

 
$
8,595

 
$
5,890


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,
 
2016
 
2015
 
2014
Federal statutory rate
35.0
 %
 
35.0
 %
 
35.0
 %
State income taxes, net of federal benefit
5.2
 %
 
2.8
 %
 
2.5
 %
Foreign income tax
1.2
 %
 
(7.8
)%
 
(10.3
)%
Research and development tax credits
5.4
 %
 
 %
 
1.1
 %
Non-Deductible components of Convertible Debt
2.2
 %
 
(9.4
)%
 
(3.8
)%
Valuation allowance
9.5
 %
 
61.1
 %
 
(25.3
)%
Rate change effect
21.2
 %
 
 %
 
 %
Non-deductible foreign stock compensation
(1.9
)%
 
(0.7
)%
 
 %
Other
(8.7
)%
 
(1.0
)%
 
0.8
 %
Total
69.1
 %
 
80.0
 %
 
 %

The following table reconciles our losses before income taxes between U.S. and foreign jurisdictions: 
  
For the years ended December 31,
(In thousands)
2016
 
2015
 
2014
Pre-tax income (loss):
 
 
 
 
 
U.S.
$
(92,175
)
 
$
(113,612
)
 
$
(84,075
)
Foreign
10,977

 
(30,091
)
 
(87,567
)
Total
$
(81,198
)
 
$
(143,703
)
 
$
(171,642
)

We intend to indefinitely reinvest the earnings from our foreign subsidiaries, primarily for purposes of continuing significant research and development activities related to intellectual property owned and developed by our foreign subsidiaries. The accumulated earnings are the most significant component of the basis difference which is indefinitely reinvested. The aggregate undistributed earnings of our foreign subsidiaries for which no deferred tax liability has been recorded is approximately $31.2 million as of December 31, 2016. Determination of the amount of unrecognized deferred tax liability on these undistributed earnings is not practicable because of the complexities of the hypothetical calculation.