Annual report pursuant to Section 13 and 15(d)

Income Taxes

Income Taxes
12 Months Ended
Dec. 31, 2018
Income Tax Disclosure [Abstract]  
Income Taxes

15. Income Taxes


The benefit from income taxes on continuing operations for the years ended December 31, 2018 and 2017 is comprised of the following:


    2018     2017  
Federal   $ (2 )   $ (382 )
State     19       (13 )
Total current     17       (395 )
Federal     -       -  
State     -       -  
Total deferred     -       -  
Benefit from income taxes   $ 17     $ (395 )


The Company performs an analysis each year to determine whether the expected future income will more likely than not be sufficient to realize the deferred tax assets. The Company’s recent operating results and projections of future income weighed heavily in the Company’s overall assessment. As a result of this analysis, the Company continues to maintain a full valuation allowance against its federal and state net deferred tax assets at December 31, 2018 as the Company believes that it is more likely than not that these assets will not be realized. In the current year, the company maintains a full valuation allowance in consolidation and no separate company deferred tax liability recorded will be recorded.


The tax effects of significant items comprising the Company’s deferred tax assets and (liabilities) as of December 31, 2018 and 2017 are as follows:


    2018     2017  
Deferred tax assets:                
Federal net operating loss carryforwards   $ 40,158     $ 31,943  
State net operating loss carryforwards     4,541       4,762  
Compensation     1,100       693  
Allowances and reserves     1,007       7,539  
State taxes     794       1,124  
Credit carryforward     233       239  
Deferred revenue     89       88  
Property, plant and equipment     16       637  
Other Reserves-restructuring     -       5  
      47,938       47,030  
Deferred tax liability:                
Intangible assets     (4,371 )     (4,865 )
Net Deferred tax assets     43,567       42,165  
Less: valuation allowance     (43,567 )     (42,165 )
Deferred tax asset-net valuation allowance   $ -     $ -  


The Company’s deferred tax asset and deferred tax liabilities are included within Other long-term liabilities, respectively, within the consolidated balance sheet as of December 31, 2018. Federal tax attribute carryforwards at December 31, 2018, consist primarily of approximately $186.7 million of federal net operating losses. In addition, the Company has approximately $80.3 million of state net operating losses carryforwards. The utilization of the federal carryforwards as an available offset to future taxable income is subject to limitations under federal income tax laws. If the federal net operating losses are not utilized, they begin to expire in 2028, and current state net operating losses not utilized begin to expire this year.


The NOL carry forwards are subject to review and possible adjustment by the Internal Revenue Service and state tax authorities. During December 2016 through October 2017, the Company executed five equity offerings, a debt exchange and warrant exercises issuing approximately 26 million shares of common stock. NOL, and tax credit carry forwards may become subject to an annual limitation in the event of certain cumulative changes in the ownership interest of significant stockholders over a three year period in excess of 50%, as defined under Sections 382 and 383 of the Internal Revenue Code of 1986, as amended, or the Code, as well as similar state tax provisions. This could limit the amount of NOLs that we can utilize annually to offset future taxable income or tax liabilities. The amount of the annual limitation, if any, will be determined based on the value of our company immediately prior to an ownership change. Subsequent ownership changes may further affect the limitation in future years. Additionally, U.S. tax laws limit the time during which these carry forwards may be applied against future taxes, therefore, we may not be able to take full advantage of these carry forwards for federal income tax purposes. We are currently evaluating the ownership history of our company to determine if there were any ownership changes as defined under Section 382(g) of the Code and the effects any ownership change may have had.


A reconciliation of the difference between the federal statutory tax rates and the Company’s effective tax rate from continuing operations is as follows:


    2018     2017  
Federal statutory rate     21.0 %     34.0 %
State income tax rate, net of Federal tax benefit     2.9 %     2.2 %
Meals and entertainment     (0.3 )%     (0.3 )%
Contingent consideration     0.0 %     8.6 %
Tax reform change     0.0 %     (174.7 )%
Valuation allowance     (23.7 )%     141.7 %
Gain/Loss on extinguishment of debt     0.0 %     (11.6 )%
Other non-deductible     (0.1 )%     0.0 %
Discontinued operations allocation     0.0 %     3.1 %
Net change in Federal and state reserves     -       -  
Effective tax rate     (0.2 )%     3.0 %


The following table summarizes the change in uncertain tax benefit reserves for the two years ended December 31, 2018:


Tax Benefits
Balance of unrecognized benefits as of January 1, 2017   $ 1,117  
Additions for tax positions related to the current year     -  
Additions for tax positions of prior years     -  
Reductions for tax positions of prior years     -  
Balance as of December 31, 2017   $ 1,117  
Additions for tax positions related to the current year     -  
Additions for tax positions of prior years     -  
Reductions for tax positions of prior years     (323 )
Balance as of December 31, 2018   $ 794  


As of December 31, 2018 and 2017, the total amount of gross unrecognized tax benefits was $0.8 million and $1.1 million, respectively. The decrease in unrecognized tax benefits is related to the change in tax rate from 34% to 21% and a reduction of the unrecognized tax benefit in the current year. The total amount of unrecognized tax benefits that, if recognized, would affect the effective tax rate as of December 31, 2018 and 2017 was $0.8 million and $1.1 million, respectively.


The Company recognized interest and penalties of $0.2 million related to uncertain tax positions in income tax expense during each of the years ended December 31, 2018 and 2017. At December 31, 2018 and 2017, accrued interest and penalties, net were $3.0 million and $2.8 million, respectively, and included in the Other long-term liabilities in the consolidated balance sheets.


Management plans to commence filing tax clearance certificates in states and related tax jurisdictions in which un-recognized tax benefits attributable to its former operating entities are recorded as long-term liabilities on the accompanying balance sheet. This process can range from 6 to 18 months before the Company receives clearance as to balances, if any, it may owe to a particular state or tax jurisdiction. Upon receipt and acknowledgment from a state or tax jurisdiction, the Company will settle the remaining obligation or reverse the recorded amount owed during the period in which the tax clearance certificate is obtained.


The Company and its subsidiaries file a U.S. Federal consolidated income tax return and consolidated and separate income tax returns in numerous states and local tax jurisdictions. The following tax years remain subject to examination as of December 31, 2018:


Jurisdiction   Tax Years
Federal   2014 - 2018
State and Local   2013 - 2018


To the extent there was a failure to file a tax return in a previous year; the statute of limitation will not begin until the return is filed. There were no examinations in process by the Internal Revenue Service as of December 31, 2018. In 2014, the Company was selected for examination by the Internal Revenue Service for the tax periods ending December 31, 2012 and December 31, 2011 that concluded in 2016 with no adjustments.


The Tax Cuts and Jobs Act (the “TCJA”) was enacted on December 22, 2017 and became effective for tax years beginning after December 31, 2017. The TCJA had significant changes to U.S. tax law, lowering U.S. corporate income tax rates, implementing a territorial tax system, imposing a one-time transition tax on deemed repatriated earnings of foreign subsidiaries and modified the taxation of other income and expense items.


The TCJA reduces the U.S. corporate income tax rate from 34% to 21%, effective January 1, 2018. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to reverse. As a result of the reduction in the U.S. corporate income tax rate from 34% to 21% under the TCJA, we revalued deferred tax assets, net as of December 31, 2017. The tax impact of revaluation of the deferred tax assets, net was $22,768,303, which was wholly offset by a corresponding reduction in our valuation allowance of $22,768,303 resulting in a no net impact to our income tax expense.


Due to the timing of the new tax law and the substantial changes it brings, the staff of the Securities and Exchange Commission (the “SEC”) issued Staff Accounting Bulletin No. 118 (“SAB 118”), which provides registrants a measurement period to report the impact of the new US tax law. During the measurement period, provisional amounts for the effects of the law are recorded to the extent a reasonable estimate can be made. To the extent that all information necessary is not available, prepared or analyzed, companies may recognize provisional estimated amounts for a period of up to one year following enactment of the TCJA. The Company did not have any changes to provisional estimates.