OPKO Health, Inc. Annual report pursuant to Section 13 and 15(d)

Annual report pursuant to Section 13 and 15(d)

Income Taxes

Income Taxes

12 Months Ended

Dec. 31, 2015

Income Tax Disclosure [Abstract]

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)	2015			2014			2013
Current
Federal	$	430		$	225		$	—
State	(2,157		)	247			—
Foreign	(8,134		)	(1,514		)	(1,073		)
	(9,861		)	(1,042		)	(1,073		)
Deferred
Federal	109,286			—			(1,161		)
State	12,327			(167		)	(104		)
Foreign	1,923			1,185			666
	123,536			1,018			(599		)
Total, net	$	113,675		$	(24	)	$	(1,672	)

Deferred income tax assets and liabilities as of December 31, 2015 and 2014 are comprised of the following:



(In thousands)	December 31, 2015			December 31, 2014
Deferred income tax assets:
Federal net operating loss	$	71,658		$	63,004
State net operating loss	14,227			12,050
Foreign net operating loss	33,701			25,825
Research and development expense	5,138			9,244
Research and development tax credit	7,388			6,077
Stock options	24,756			18,422
Accruals	7,086			1,764
Equity investments	4,420			8,038
Bad debts	38,809			—
Lease liability	7,022			—
Other	7,104			4,702
Deferred income tax assets	221,309			149,126
Deferred income tax liabilities:
Intangible assets	(386,588		)	(177,074		)
Fixed assets	(17,072		)	—
Other	(1,538		)	(4,305		)
Deferred income tax liabilities	(405,198		)	(181,379		)
Net deferred income tax liabilities	(183,889		)	(32,253		)
Valuation allowance	(42,147		)	(131,931		)
Net deferred income tax liabilities	$	(226,036	)	$	(164,184	)

The changes in deferred income tax assets, liabilities and valuation allowances at December 31, 2015 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, 2015, we have federal, state and foreign net operating loss carryforwards of approximately $362.4 million, $199.9 million and $126.6 million, respectively, that expire at various dates through 2035. Included in the foreign net operating losses is $112.9 million related to OPKO Biologics. As of December 31, 2015, we have research and development tax credit carryforwards of approximately $7.4 million that expire in varying amounts through 2035. 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 the merger with Bio-Reference, OPKO released the full valuation allowance recorded against OPKO’s U.S. deferred tax assets, which resulted in an income tax benefit of $93.4 million.

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, 2015 and 2014, 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 $33.9 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§ 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 as to whether eXegenics’ pre-merger NOLs were limited under Section 382. As such, of the $362.4 million of federal net operating loss carryforwards, at least approximately $50.9 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. Additionally, included in income tax expense is an accrual of $2.3 million related to uncertain tax positions involving income recognition from the Pfizer Transaction. We recognize that local tax law is inherently complex and the local taxing authorities may not agree with certain tax positions taken. Consequently, it is reasonably possible that ultimate resolution of these matters in any jurisdiction may be significantly more or less than estimated. We evaluated the estimated tax exposure for a range of current likely outcomes to be from $0 to approximately $50.0 million and recorded our accrual to reflect our best expectation of ultimate resolution.

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 2012. However, because we are carrying forward income tax attributes, such as net operating losses and tax credits from 2012 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 2012 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 2012.

Foreign: Under the statutes of limitations applicable to our foreign operations, we are generally no longer subject to tax examination for years before 2010 in jurisdictions where we have filed income tax returns.

Unrecognized Tax Benefits

As of December 31, 2015, 2014, and 2013, the total amount of gross unrecognized tax benefits was approximately $8.6 million, $5.9 million, and $9.2 million, respectively. As of December 31, 2015, the total gross unrecognized tax benefit of $8.6 million consisted of increases of $3.5 million as a result of current year activity, and decreases of $0.8 million as a result of the lapse of statutes of limitations. As of December 31, 2015, the total amount of unrecognized tax benefits that, if recognized, would affect our effective income tax rate was $0.7 million. We account for any applicable interest and penalties on uncertain tax positions as a component of income tax expense. As of December 31, 2014 and 2013, $0.9 million and $0.2 million of the unrecognized tax benefits, if recognized, would have affected our effective income tax rate. We believe it is reasonably possible that approximately $0.1 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)	2015			2014			2013
Unrecognized tax benefits at beginning of period	$	5,890		$	9,231		$	9,245
Gross increases – tax positions in prior period	955			524			58
Gross increases – tax positions in current period	2,543			193			517
Gross decreases – tax positions in prior period	(176		)	(396		)	(589		)
Lapse of Statute of Limitations	(617		)	(472		)	—
Settlements	—			(3,190		)	—
Unrecognized tax benefits at end of period	$	8,595		$	5,890		$	9,231

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,
	2015		2014		2013
Federal statutory rate	35.0	%	35.0	%	35.0	%
State income taxes, net of federal benefit	2.8	%	2.5	%	2.4	%
Foreign income tax	(7.8	)%	(10.3	)%	(7.9	)%
Research and development tax credits	—	%	1.1	%	1.0	%
Non-Deductible components of Convertible Debt	(9.4	)%	(3.8	)%	(16.7	)%
Valuation allowance	61.1	%	(25.3	)%	(11.4	)%
Other	(1.7	)%	0.8	%	(3.9	)%
Total	80.0	%	—	%	(1.5	)%

The following table reconciles our losses before income taxes between U.S. and foreign jurisdictions:



	For the years ended December 31,
(In thousands)	2015			2014			2013
Pre-tax loss:
U.S.	$	(113,612	)	$	(84,075	)	$	(74,861	)
Foreign	(30,091		)	(87,567		)	(37,874		)
Total	$	(143,703	)	$	(171,642	)	$	(112,735	)

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.