Fortress Biotech, 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, 2017

19. Income Taxes

Deferred income taxes reflect the net tax effects of (a) temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, and (b) operating losses and tax credit carryforwards.

The components of the income tax provision (benefit) are as follows:

	For the years ended December 31,
($ in thousands)	2017		2016

Current
Federal	$	1,074	$	-
State		439		-
Deferred
Federal		-		-
State		-		-
Total	$	1,513	$	-

The Company has incurred net operating losses since inception. The Company has not reflected any benefit of such net operating loss carryforwards (“NOL”) in the accompanying consolidated financial statements and has established a valuation allowance of $101.6 million against its net deferred tax assets. Deferred income taxes reflect the net tax effects of (a) temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, and (b) operating losses and tax credit carryforwards.

The significant components of the Company’s deferred taxes consist of the following:

	As of December 31,
($ in thousands)	2017		2016
Deferred tax assets:
Net operating loss carryforwards	$	71,616	$	76,486
Amortization of license fees		13,648		7,277
Amortization of in-process R&D		557		742
Stock compensation		10,682		10,899
Accruals and reserves		5,166		4,025
Tax credits		7,376		6,305
Start up costs		75		98
Unrealized loss on investments		-		1,095
Total deferred tax assets		109,120		106,927
Less: valuation allowance		(101,645)		(94,687)
Net deferred tax assets	$	7,475	$	12,240

Deferred tax liabilities:
Unrealized gain/loss on investment	$	(685)	$	-
Intangibles		(3,321)		(4,450)
Basis in subsidiary		(3,469)		(7,790)
Total deferred tax assets, net	$	-	$	-

A reconciliation of the statutory tax rates and the effective tax rates is as follows:

	For the Year Ended December 31,
	2017			2016			2015
Percentage of pre-tax income:
U.S. federal statutory income tax rate		35	%		35	%		35	%
State taxes, net of federal benefit		8	%		3	%		5	%
Credits		1	%		2	%		1	%
Non-deductible items		(2)	%		(4)	%		-	%
Provision to return		1	%		2	%		-	%
Stock based compensation shortfall		(1)	%		(2)	%		(1)	%
Change in federal rate		(43)	%		-	%		-	%
Change in state rate		2	%		-	%		-	%
Intercomapny elimination adjustments		(3)	%		-	%		-	%
Change in fair value of warrants		3	%		-	%		-	%
Change in valuation allowance		(7)	%		(33)	%		(44)	%
Change in subsidiary basis		4	%		(3)	%		3	%
Other		-	%		-	%		1	%
Effective income tax rate		(2)	%		-	%		-	%

The Company files a consolidated income tax return with Subsidiaries for which the Company has an 80% or greater ownership interest. Subsidiaries for which the Company does not have an 80% or more ownership are not included in the Company’s consolidated income tax group and file their own separate income tax return. As a result, certain corporate entities included in these financial statements are not able to combine or offset their taxable income or losses with other entities' tax attributes.

On December 22, 2017, “H.R.1”, formerly known as the “Tax Cuts and Jobs Act”, was signed into law. Among other items, H.R.1 reduces the federal corporate tax rate to 21% from the existing maximum rate of 35%, effective January 1, 2018. As a result, the Company has recorded a decrease related to its deferred tax assets and valuation allowance of $42.2 million, with a corresponding net adjustment to deferred income tax expense of zero for the year ended December 31, 2017.

The SEC staff issued Staff Accounting Bulletin 118 (“SAB 118”) to address the application of U.S. GAAP in situations when a registrant does not have the necessary information available, prepared or analyzed in reasonable detail to complete the accounting for certain income tax effects of the Tax Act and allows the registrant to record provisional amounts during the measurement period. The Company is in the process of analyzing the impact of the various provisions of the Tax Act. The Company expects to complete its analysis within the measurement period in accordance with SAB 118.

ASC 740 requires a valuation allowance to reduce the deferred tax assets reported if, based on the weight of all positive and negative evidence, it is more likely than not that some portion, or all, of the deferred tax assets will not be realized. Realization of the deferred tax assets is substantially dependent on the Company’s ability to generate sufficient taxable income within certain future periods. Management has considered the Company’s history of cumulative tax and book losses incurred since inception, and the other positive and negative evidence, and has concluded that it is more likely than not that the Company will not realize the benefits of the net deferred tax assets as of December 31, 2016 and December 31, 2017. Accordingly, a full valuation allowance has been established against the net deferred tax assets as of December 31, 2016 and December 31, 2017. The valuation allowance increased by a net $7.0 million during the current year.

The Company has incurred net operating losses (“NOLs”) since inception. At December 31, 2017, the Company had federal NOLs of $259.0 million, which will begin to expire in the year 2020, state NOLs of $259.0 million, which will begin to expire in 2022, and federal income tax credits of $7.5 million, which will begin to expire in 2028. The utilization of the Company’s NOLs and tax credit carryovers are subject to annual Internal Revenue Code Section 382 limitations (“382 Limitations”). Based on the analysis of the NOLs and tax credit carryovers subject to the 382 Limitations, the Company has concluded that the 382 Limitations would not prevent the Company from utilizing all of its NOLs and tax credit carryovers before expiration.

In 2016, the Company acquired approximately 56% of National’s outstanding shares on a fully-diluted basis. Management determined that it was more likely than not that the Company will not realize the benefit of National’s deferred tax assets. Therefore, the Company established a valuation allowance of $8.8 million against the acquired net deferred tax assets, with a corresponding adjustment to goodwill.

As of December 31, 2017, the Company had no unrecognized tax benefits and does not anticipate any significant change to the unrecognized tax benefit balance. The Company would classify interest and penalties related to uncertain tax positions as income tax expense, if applicable. There was no interest expense or penalties related to unrecognized tax benefits recorded through December 31, 2017. The NOLs from tax years 2006 through 2017 remain open to examination (and adjustment) by the Internal Revenue Service and state taxing authorities. In addition, federal tax years ending December 31, 2014, 2015, 2016, and 2017 are open for assessment of federal taxes.