Income Taxes

12 Months Ended

Dec. 31, 2023

Income Tax Disclosure [Abstract]

Income Taxes

12. Income Taxes

The Company's consolidated effective income tax rate from continuing operations for the years ended December 31, 2023 and 2022 was -1.26% and 0%, respectively. The Company's provision for income taxes from continuing operations for the years ended December 31, 2023 and 2022 is as follows:

	Years Ended December 31,
	2023		2022
	(in thousands)
Current:
Federal	$	—	$	—
State	569		—
Foreign	104		—
Total current	$	673	$	—
Deferred:
Federal	—		—
State	—		—
Total deferred	$	—	$	—
Total provision for income taxes	$	673	$	—

The Company’s primary operations are domestically located and the Company is subject to tax in one foreign jurisdiction. The provision for income taxes differed from the amount computed by applying the federal statutory income tax rate of 21% to loss before income taxes due to the following items for the years ended December 31, 2023 and 2022:

	Years Ended December 31,
	2023		2022
	(in thousands)
Tax benefit at federal statutory rate	$	(11,169)	$	(15,725)
Non-deductible compensation	2,342		(1,092)
State tax, net of federal benefit	(9,393)		(3,227)
Valuation allowance	17,251		18,834
Shortfall of stock compensation deduction	2,666		3,190
Non-taxable warrants	(1,613)		(2,481)
Other	589		501
Income tax expense	$	673	$	—

The deferred income tax expense as of December 31, 2023 and 2022 was $0. The tax benefits associated with losses generated by the consolidated group have been reduced by a full valuation allowance as the Company does not believe it is more-likely-than-not that the losses will be utilized.

Deferred tax assets and liabilities as of December 31, 2023 and 2022, consisted of the following:

	December 31,
	2023		2022
	(in thousands)
Deferred tax assets:
Net operating loss carryforwards	$	68,374	$	54,892
Sec. 163(j) carryforward	9,214		7,741
Accruals and reserves	1,841		1,613
Deferred revenue	194		271
Capital loss carryforward	4,004		3,919
Section 174 - research expenditures	7,914		6,238
Other deferred tax assets	6,604		6,385
Total deferred tax assets	98,145		81,059
Valuation allowance	(97,388)		(80,137)
Total net deferred tax assets	757		922
Deferred tax liabilities
Basis difference in intangibles	(332)		(468)
Other deferred tax liabilities	(425)		(454)
Total deferred tax liabilities	(757)		(922)
Net deferred tax liabilities	$	—	$	—

The Company continues to provide for a full valuation allowance on its net deferred tax assets as the Company does not believe it is more-likely-than-not that the losses will be utilized after evaluation of all

significant positive and negative evidence including, but not limited to, historical cumulative losses over the prior three-year period, as adjusted for permanent items, insufficient sources of taxable income in prior carryback periods and unavailability of prudent and feasible tax-planning strategies.

Below is a summary of the Company's estimated loss and tax credit carryforwards. In the year ended December 31, 2023, the Company performed a historic ownership change analysis and concluded that $1.5 million of federal net operating loss carryforward pre-tax attributes were subject to limitations, as defined by the Internal Revenue Code Sections 382 and 383.

	Tax Effected		Expiration
	(in thousands)
Federal net operating loss (“NOL”) carryforward	$	8,313	2033-2037
Federal NOL carryforward	49,512		Indefinite
Federal capital loss carryforward	4,004		2025
State NOL carryforwards	10,548		2034-2043

At December 31, 2023 and 2022 the Company had $275.4 million and $252.8 million of NOL carryforwards for U.S. federal tax purposes, respectively. U.S. federal tax NOL carryforwards generated prior to 2018 of $39.6 million will expire, if unused, between 2033-2037. Under the Tax Cuts and Jobs Act of 2017, as modified by the Coronavirus Aid, Relief, and Economic Security Act, federal NOL carryforwards generated in tax years beginning after December 31, 2017 may be carried forward indefinitely. As of December 31, 2023, the Company had $235.8 million of NOL carryforwards generated after 2017 for U.S. federal tax purposes, which may be used to offset 80% of its taxable income annually.

The Company files income tax returns in the United States federal jurisdiction and various state jurisdictions. In the normal course of business, the Company is subject to examination by taxing authorities. Tax years 2015-2022 remain open for examination.

Below is a tabular reconciliation of the total amounts of unrecognized tax benefits:

	2023		2022
	(in thousands)
Unrecognized tax benefits - January 1	$	9,006	$	8,443
Gross decrease - tax positions in current period	—		—
Gross increase - tax positions in current period	—		563
Unrecognized tax benefits - December 31	$	9,006	$	9,006

The majority of the unrecognized tax benefits in the year ended December 31, 2023 is from the valuation of guaranteed incentives shares issued for SVB guarantors. The balance of unrecognized tax benefits as of December 31, 2023 and 2022, if recognized, would not affect our effective tax rate and would result in adjustments to other tax accounts, primarily deferred tax assets and the net operating loss carry forward.