Annual report pursuant to Section 13 and 15(d)

Income Taxes

v2.4.0.8
Income Taxes
12 Months Ended
Dec. 31, 2013
Income Tax Disclosure [Abstract]  
Income Taxes
Income Taxes
We operate and are required to file tax returns in the United States and various foreign jurisdictions.
The (expense) benefit from continuing operations for incomes taxes consists of the following: 
 
For the years ended December 31,
(In thousands)
2013
 
2012
 
2011
Current
 
 
 
 
 
Federal
$

 
$

 
$

State

 

 

Foreign
(1,073
)
 
(332
)
 
(391
)
 
(1,073
)
 
(332
)
 
(391
)
Deferred
 
 
 
 
 
Federal
(1,161
)
 
8,191

 
18,043

State
(104
)
 
1,038

 
1,220

Foreign
666

 
729

 
486

 
(599
)
 
9,958

 
19,749

Total, net
$
(1,672
)
 
$
9,626

 
$
19,358


Deferred income tax assets and liabilities from continuing operations as of December 31, 2013 and 2012 are comprised of the following: 
(In thousands)
December 31, 2013
 
December 31, 2012
Deferred income tax assets:
 
 
 
Federal net operating loss
$
43,869

 
$
50,174

State net operating loss
6,987

 
6,774

Foreign net operating loss
20,545

 
3,427

Capitalized research and development expense
4,746

 
2,162

Research and development tax credit
4,876

 
4,204

Stock options
13,981

 
6,326

Equity investments
4,756

 
1,234

Accruals
1,936

 
1,556

Other
2,904

 
2,860

Deferred income tax assets
104,600

 
78,717

Deferred income tax liabilities:
 
 
 
Intangible assets
(179,414
)
 
(25,738
)
Other
(4,996
)
 
(3,277
)
Deferred income tax liabilities
(184,410
)
 
(29,015
)
Net deferred income tax assets
(79,810
)
 
49,702

Valuation allowance
(85,370
)
 
(59,145
)
Net deferred income tax liabilities
$
(165,180
)
 
$
(9,443
)

The changes in deferred income tax assets, liabilities and valuation allowances at December 31, 2013 reflect the acquisition of various legal entities, including the tax attributes. Certain deferred tax assets and liabilities have been changed to properly reflect their classification. The acquisitions were accounted for under U.S. GAAP as stock acquisitions and business combinations. As of December 31, 2013, we have federal, state and foreign net operating loss carryforwards of approximately $223.8 million, $200.2 million and $76.8 million, respectively, that expire at various dates through 2033. Included in the foreign net operating losses is $54.6 million related to Prolor. As of December 31, 2013, we have research and development tax credit carryforwards of approximately $4.9 million that expire in varying amounts through 2033. We have determined a full valuation allowance is required against all of our net deferred tax assets that we do not expect to be utilized by the turning of deferred income tax liabilities.

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, 2013, and December 31, 2012, 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 $11.8 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§ 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. As we have established a valuation allowance against all of our net deferred tax assets, including such NOLs and tax credits, there is no current impact on these financial statements as a result of the annual limitation. This study did not conclude as to whether eXegenics’ pre-merger NOLs were limited under Section 382. As such, of the $223.8 million of federal net operating loss carryforwards, at least approximately $39.7 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 province in Canada. We are subject to 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. Excluding SciVac Ltd, a consolidated variable interest entity, there are currently no tax audits that have commenced with respect to income tax returns in any jurisdiction.
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 2010. However, because we are carrying forward income tax attributes, such as net operating losses and tax credits from 2010 and earlier tax years, these attributes can still be audited when utilized on returns filed in the future.
State: Under the statutes of limitation applicable to most state income tax laws, we are no longer subject to state income tax examinations by tax authorities for years before 2010 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 2010.
Foreign: Under the statutes of limitations applicable to our foreign operations, we are generally no longer subject to tax examination for years before 2008 in jurisdictions where we have filed income tax returns.
Unrecognized Tax Benefits
As of December 31, 2013, 2012, and 2011, the total amount of gross unrecognized tax benefits was approximately $9.2 million, $9.2 million, and $5.3 million, respectively. As of December 31, 2013, the total gross unrecognized tax benefit of $9.2 million consisted of increases of $0.1 million as a result of current year activity, and decreases of $0.2 million as a result of the lapse of statutes of limitations. As of December 31, 2012, the total amount of unrecognized tax benefits that, if recognized, would affect our effective income tax rate was $0.3 million. As of December 31, 2011 and 2010, none of the unrecognized tax benefits, if recognized, would have affected our effective income tax rate. We account for any applicable interest and penalties on uncertain tax positions as a component of income tax expense. As of December 31, 2013, we had $0.5 million accrued for interest and penalties resulting from such unrecognized tax benefits. At December 31, 2012 we had an immaterial amount of interest and penalties accrued. We believe it is reasonably possible that approximately $0.2 million of unrecognized tax benefits may be recognized within the next twelve months as a result of a lapse of the statute of limitations.
The following summarizes the changes in our gross unrecognized income tax benefits. 
 
For the years ended December 31,
(In thousands)
2013
 
2012
 
2011
Unrecognized tax benefits at beginning of period
$
9,245

 
$
5,250

 
$
5,413

Gross increases – tax positions in prior period
575

 
4,467

 
257

Gross decreases – tax positions in prior period
(589
)
 
(472
)
 
(420
)
Unrecognized tax benefits at end of period
$
9,231

 
$
9,245

 
$
5,250


Other Income Tax Disclosures
The significant elements contributing to the difference between the federal statutory tax rate and the effective tax rate for continuing operations are as follows: 
 
For the years ended December 31,
 
2013
 
2012
 
2011
Federal statutory rate
35.0
 %
 
35.0
 %
 
35.0
 %
State income taxes, net of federal benefit
2.4
 %
 
3.1
 %
 
3.6
 %
Foreign income tax
(7.9
)%
 
(0.9
)%
 
(1.9
)%
Research and development tax credits
1.0
 %
 
(0.3
)%
 
0.2
 %
Original issue discount
 %
 
 %
 
0.1
 %
Non-Deductible components of Convertible Debt
(16.7
)%
 
 %
 
 %
Valuation allowance
(11.4
)%
 
(11.4
)%
 
35.9
 %
Other
(3.9
)%
 
(0.7
)%
 
2.0
 %
Total
(1.5
)%
 
24.8
 %
 
74.9
 %

The following table reconciles our losses from continuing operations before income taxes between U.S. and foreign jurisdictions: 
  
For the years ended December 31,
(In thousands)
2013
 
2012
 
2011
Pre-tax loss:
 
 
 
 
 
U.S.
$
(74,861
)
 
$
(34,058
)
 
$
(24,089
)
Foreign
(37,874
)
 
(4,725
)
 
(1,733
)
Total
$
(112,735
)
 
$
(38,783
)
 
$
(25,822
)

The following table reconciles our long-lived assets between U.S. and foreign jurisdictions: 
(In thousands)
December 31, 2013
 
December 31, 2012
Long-lived assets:
 
 
 
U.S.
$
4,582

 
$
4,324

Foreign
12,445

 
12,202

Total
$
17,027

 
$
16,526


No additional provision has been made for U.S. or foreign income taxes on the undistributed earnings of subsidiaries or for unrecognized deferred tax liabilities for temporary differences related to investments in subsidiaries, as such earnings are expected to be permanently reinvested, the investments are essentially permanent in duration, or the Company has concluded that no additional tax liability will arise as a result of distribution of such earnings. A liability could arise if amounts are distributed by such subsidiaries or if such subsidiaries are ultimately disposed. It is not practicable to estimate the additional income taxes related to permanently reinvested earnings or the basis differences related to investments in subsidiaries.