Income Taxes

The Tax Cuts and Jobs Act (“the Act”) was enacted on December 22, 2017. The income tax effects of changes in tax laws are recognized in the period when enacted. The Act provides for significant tax law changes and modifications with varying effective dates, which include reducing the U.S. federal corporate income tax rate from 35% to 21%, creating a territorial tax system (with a one-time mandatory repatriation tax on previously deferred foreign earnings), and allowing for immediate capital expensing of certain qualified property acquired and placed in service after September 27, 2017 and before January 1, 2023.

In response to the enactment of the Act in late 2017, the U.S. Securities and Exchange Commission issued Staff Accounting Bulletin No. 118 (“SAB 118”) to address situations where the accounting is incomplete for certain income tax effects of the Tax Act upon issuance of an entity’s financial statements for the reporting period in which the Tax Act was enacted. The measurement period allowed by SAB 118 has closed during the fourth quarter of 2018 in which the Company did not record any adjustments to the $31.9 million recorded in 2017 for the re-measurement of its deferred tax balances which was offset by a reduction in the valuation allowance resulting in no tax expense. The prospects of supplemental legislation or regulatory processes to address uncertainties that arise due to the Act, or evolving technical interpretations of the tax law, may cause the Company’s financial statements to be impacted in the future. The Company will continue to analyze the effects of the Act as subsequent guidance continues to emerge.

The Company remeasured certain U.S. deferred tax assets and liabilities based on the rates at which they are expected to reverse in the future, which is generally 21%. The provisional amount recorded related to the remeasurement of the deferred tax balance was tax expense of $30 million which was offset by a reduction in the valuation allowance resulting in no tax expense.

The provision (benefit) for income taxes is based on loss from operations before provision for income taxes and noncontrolling interests as follows ($ in thousands):



	Years Ended December 31,
	2018			2017
United States	$	(16,168	)	$	(27,698	)
	$	(16,168	)	$	(27,698	)

The benefit from income taxes was as follows ($ in thousands):



		Years Ended December 31,
		2018		2017
Current
	U.S. Federal	$	—	$	(9,310	)
	State and local	—		(1,641		)
		$	—	$	(10,951	)
Deferred
	U.S. Federal	$	—	$	(576	)
	State and local	—		—
		$	—	$	(576	)
Total
	U.S. Federal	$	—	$	(9,886	)
	State and local	—		(1,641		)
		$	—	$	(11,527	)

The provision (benefit) for income taxes is determined by applying the U.S. Federal statutory rate of 21% to income before income taxes as a result of the following ($ in thousands):



	Years Ended December 31,
	2018			2017
U.S. Federal benefit at statutory rate	$	(3,395	)	$	(9,417	)
State and local (benefit) / expense net of U.S. federal tax	—			(1,641		)
Permanent non deductible expenses for U.S. taxes	11			107
AMT credit benefit	—			(576		)
Change in state deferred	2,799			—
Return to actual	(177		)	—
Other true ups	(1,949		)	—
Effect of change in deferred tax rate	—			29,809
Valuation allowance for deferred tax assets	2,711			(29,809		)
Tax provision benefit	$	—		$	(11,527	)

Deferred income taxes at December 31, 2018 and 2017 consist of the following ($ in thousands):



	December 31,
	2018			2017
Deferred Tax Assets:
Accumulated net operating losses (tax effected)	$	60,544		$	60,171
CIRM funding	1,033			1,780
Deferred rent	5			3
Share-based compensation	6,390			2,656
Intangibles	199			270
Charitable contributions	9			11
Accumulated depreciation	9			22
Accrued payroll	117			682
AMT credit	—			575
Other	525			526
Deferred tax assets	68,831			66,696
Deferred tax liabilities	—			—
	68,831			66,696
Valuation allowance	(68,831		)	(66,121		)
Net deferred tax asset	$	—		$	575

In assessing the realizability of deferred tax assets, including the net operating loss carryforwards (NOLs), the Company assesses the available positive and negative evidence to estimate if sufficient future taxable income will be generated to utilize its existing deferred tax assets. Based on its assessment, the Company has provided a full valuation allowance against its net deferred tax assets as their future utilization remains uncertain at this time.

As of December 31, 2018, and 2017, the Company had approximately $225.1 million and $210.3 million, respectively of Federal NOLs available to offset future taxable income expiring from 2030 through 2036. In accordance with Section 382 of the Internal Revenue code, the usage of the Company’s NOLs could be limited in the event of a change in ownership. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the period when those temporary differences become deductible.

The Company performed an analysis and determined that they have had ownership change of greater than 50% over a 3-year testing period. The last ownership change was determined to be on June 3, 2015. Based on a market capitalization of $124.5M and using an applicable federal rate of 2.5% the annual limitation would be approximately $3.0 million. Post change losses from June 3, 2015 would not be subject to 382 limitations.

The Company applies the FASB’s provisions for uncertain tax positions. The Company utilizes the two-step process to determine the amount of recognized tax benefit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the consolidated financial statements is the largest benefit that has a greater than 50% likelihood of being realized upon ultimate settlement with the relevant tax authority. The Company recognizes interest and penalties associated with certain tax positions as a component of income tax expense.

As of December 31, 2018, management does not believe the Company has any material uncertain tax positions that would require it to measure and reflect the potential lack of sustainability of a position on audit in its financial statements. The Company will continue to evaluate its uncertain tax positions in future periods to determine if measurement and recognition in its financial statements is necessary. The Company does not believe there will be any material changes in its unrecognized tax positions over the next year.

For years prior to 2014 the federal statute of limitations is closed for assessing tax. The Company’s state tax returns remain open to examination for a period of three to four years from date of filing.