11.

Income Taxes

Income taxes payable (receivable), including deferred benefits, consists of the following:

	Year Ended October 31,
(In thousands)	2019	2018
State income taxes:
Current	$2,301	$3,334
Deferred	-	-
Federal income taxes:
Current	-	-
Deferred	-	-
Total	$2,301	$3,334

The provision for income taxes is composed of the following charges:

	Year Ended October 31,
(In thousands)	2019	2018	2017
Current income tax expense:
Federal (1)	$-	$-	$-
State (2)	2,449	3,626	1,371
Total current income tax expense:	2,449	3,626	1,371
Federal	-	-	275,688
State	-	-	9,890
Total deferred income tax expense:	-	-	285,578
Total	$2,449	$3,626	$286,949

(

)

The current federal income tax expense is net of the use of federal net operating losses totaling

$0.8

million for the year ended

October

31,

201

The current federal income tax expense did

not

include the use of federal net operating losses for the years ended

October 31, 2018

and

2017.

(

)

The current state income tax expense is net of the use of state net operating losses totaling

$1.3

million,

$4.4

million and

$18.2

million for the years ended

October

31,

2019,

2018

and

2017,

respectively.

The total income tax expense of

$2.4

million and

$3.6

million for the periods ending

October 31, 2019

and

2018

was primarily related to state tax expense from income generated that was

not

offset by tax benefits in states where we fully reserve the tax benefit from net operating losses. The total income tax expense of

$286.9

million for the period ended

October 31, 2017

was primarily due to increasing our valuation allowance to fully reserve against our deferred tax assets (“DTAs”). In addition, the same periods were also impacted by state tax expense from income generated in some states, which was

not

offset by tax benefits in other states that had losses for which we fully reserve the net operating losses.

Our federal net operating losses of

$1.6

billion expire between

2028

and

2037,

and

$16.5

million have an indefinite carryforward period. Of our

$2.5

billion of state NOLs,

$211.4

million expire between

2020

through

2024;

$1.2

billion expire between

2025

through

2029;

$758.9

million expire between

2030

through

2034;

$274.5

million expire between

2035

through

2039;

and

$62.3

million have an indefinite carryforward period.

December 22, 2017,

the President of the United States signed into law the Tax Cuts and Jobs Act of

2017

(the “Act”). Effective

January 1, 2018,

the comprehensive U.S. tax reform package, among other things, lowered the corporate tax rate from

35%

21%.

Under the accounting rules, companies are required to recognize the effects of changes in tax laws and tax rates on deferred tax assets and liabilities in the period in which the new legislation is enacted. The effects of the Act on the Company include

one

major category which is the remeasurement of deferred taxes. Consequently, we recorded a decrease related to deferred tax assets and liabilities of

$298.5

million and

$12.2

million, respectively, with a corresponding net adjustment to the valuation allowance in fiscal

2018,

therefore there was

income tax expense or benefit as a result of the tax law changes. The Act contained additional changes that impacted our taxable income determinations, including, but

not

limited to elimination of the corporate alternative minimum tax and limitations on the deductibility of certain executive compensation in fiscal

2019.

The ultimate impact of tax reform

may

differ from our interpretations and assumptions due to additional regulatory guidance that

may

be issued. As of

October 31, 2019,

we have completed our analysis of the impacts of the Tax Act under SAB

118

within the measurement period with immaterial differences to our provisional amounts previously recorded.

Deferred federal and state income tax assets (“DTAs”) primarily represent the deferred tax benefits arising from NOL carryforwards and temporary differences between book and tax income which will be recognized in future years as an offset against future taxable income. If the combination of future years’ income (or loss) and the reversal of the timing differences results in a loss, such losses can be carried forward to future years. In accordance with ASC

740,

we evaluate our DTAs quarterly to determine if valuation allowances are required. ASC

740

requires that companies assess whether valuation allowances should be established based on the consideration of all available evidence using a “more likely than

not”

standard.

As of

October 31, 2019

we considered all available positive and negative evidence to determine whether, based on the weight of that evidence, our valuation allowance for our DTAs was appropriate in accordance with ASC

740.

Listed below, in order of the weighting of each factor, is the available positive and negative evidence that we considered in determining that it is more likely than

not

that all of our DTAs will

not

be realized. In analyzing these factors, overall the negative evidence, both objective and subjective, outweighed the positive evidence. Based on this analysis, we determined that the current valuation allowance for deferred taxes of

$623.2

million as of

October 31, 2019,

which fully reserves for our DTAs, is appropriate.

Fiscal

2017

financial results, especially the

$50.2

million pre-tax loss in the

third

quarter of fiscal

2017

primarily from the

$42.3

million loss on extinguishment of debt during the quarter, that put us in a cumulative

three

-year pre-tax loss position as of

July 31, 2017.

As of

October 31, 2019,

the Company has pre-tax income when adjusted for permanent differences on a

three

-year cumulative basis. However, on a US GAAP basis, the Company is still in a

three

-year cumulative pre-tax loss position as of

October 31, 2019.

Therefore, it is too early to conclude whether we will continue to

not

be in a

three

-year cumulative loss position going forward on a tax accounting basis. Per ASC

740,

cumulative losses are

one

of the most objectively verifiable forms of negative evidence. (Negative Objective Evidence)

In the

third

quarter of fiscal

2017,

second

and

third

quarters of fiscal

2018,

and

fourth

quarter of fiscal

2019,

we completed debt refinancing/restructuring transactions which, by extending our debt maturities, will enable us to allocate cash to invest in new communities and grow our community count to get back to sustained profitability. (Positive Objective Evidence)

Our net contracts per community and our absolute net contracts increased in the

fourth

quarter of fiscal

2019

compared to the

fourth

quarter of

2018

and for the full fiscal year of

2019

compared to the full fiscal year of

2018.

This is a reversal of the negative trend we had seen in the

second

quarter of

2019.

(Positive Objective Evidence)

We incurred pre-tax losses during the housing market decline and the slower than expected housing market recovery. (Negative Objective Evidence)

We exited

two

geographic markets in fiscal

2016

and completed the wind down of operations in

two

other markets in fiscal

2018,

that have historically had losses. By exiting these underperforming markets, the Company has been able to redeploy capital to better performing markets, which over time should improve our profitability. (Positive Subjective Evidence)

The historical cyclicality of the U.S. housing market, a more restrictive mortgage lending environment compared to before the housing downturn of

2007

2009,

the uncertainty of the overall US economy and government policies and consumer confidence, all or any of which could continue to hamper a sustained, stronger recovery of the housing market. (Negative Subjective Evidence)

The deferred tax assets and liabilities have been recognized in the Consolidated Balance Sheets as follows:

	Year Ended October 31,
(In thousands)	2019		2018
Deferred tax assets:
Inventory impairment loss	47,000		60,854
Uniform capitalization of overhead	3,917		4,183
Warranty and legal reserves	4,404		4,774
Acquisition intangibles	424		1,185
Compensation	8,477		11,033
Deferred Income	5,167		428
Interest Expense	6,616		1,646
Restricted stock bonus	1,553		1,344
Stock options	4,288		4,358
Provision for losses	16,820		18,044
Joint venture loss	4,392		3,384
Federal net operating losses	334,142		334,971
State net operating losses	184,740		191,064
Other	1,280		923
Total deferred tax assets	623,220		638,191
Total deferred tax liabilities	-		-
Valuation allowance	(623,220	)	(638,191	)
Net deferred income taxes	$-		$-

The effective tax rate varied from the statutory federal income tax rate. The effective tax rate is affected by a number of factors, the most significant of which has been the valuation allowance related to our deferred tax assets. Due to the effects of these factors, our effective tax rates for

2019,

2018

and

2017

are

not

correlated to the amount of our income or loss before income taxes. The sources of these factors were as follows:

	Year Ended October 31,
	2019		2018		2017
Computed “expected” tax rate	21.0	%	21.0	%	35.0	%
State income taxes, net of federal income tax benefit	(5.0	)	17.2		1.0
Permanent differences, net	(42.4	)	74.0		(2.4	)
Deferred tax asset valuation allowance impact	20.8		(70.8	)	(667.8	)
Tax contingencies	0.5		1.0		-
Adjustments to prior years’ tax accruals	(1.0	)	2.1		-
Effective tax rate	(6.1	)%	44.5	%	(634.2	)%

ASC

740

provides that a tax benefit from an uncertain tax position

may

be recognized when it is more likely than

not

that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, based on the technical merits.

Income tax positions must meet a more-likely-than-

not

recognition threshold at the effective date to be recognized upon the adoption of ASC

740

and in subsequent periods. This interpretation also provides guidance on measurement, derecognition, classification, interest and penalties, accounting in interim periods, disclosure, and transition.

We recognize tax liabilities in accordance with ASC

740

and we adjust these liabilities when our judgment changes as a result of the evaluation of new information

not

previously available. Due to the complexity of some of these uncertainties, the ultimate resolution

may

result in a liability that is materially different from our current estimate of the tax liabilities. These differences will be reflected as increases or decreases to income tax expense in the period in which they are determined.

We recognize interest and penalties related to unrecognized tax benefits within the income tax expense line in the accompanying consolidated statement of operations. Accrued interest and penalties are included within the related tax liability line in the consolidated balance sheet.

The following is a tabular reconciliation of the total amount of unrecognized tax benefits for the year (in millions) excluding interest and penalties:

	Year Ended October 31,
		2019		2018
Unrecognized tax benefit—November 1,		$1.2		$1.1
Gross increases—tax positions in current period		-		0.3
Lapse of statute of limitations		(0.3	)	(0.2	)
Unrecognized tax benefit—October 31,		$0.9		$1.2

Related to the unrecognized tax benefits noted above, as of

October

31,

2019

and

2018,

we have recognized a liability for interest and penalties of

$0.4

and

$0.3

million, respectively. For the years ended

October

31,

2019

and

2018,

we recognized

$32

thousand and

$41

thousand, respectively, of interest and penalties in income tax expense. For the year ended

October 31, 2017,

we recognized

$45

thousand of interest and penalties in net income tax benefit.

It is likely that, within the next year, the amount of the Company's unrecognized tax benefits will decrease by

$0.2

million, excluding penalties and interest. This reduction is expected primarily due to the expiration of the statutes of limitation. The portion of unrecognized tax benefits that, if recognized, would affect the Company’s effective tax rate (excluding any related impact to the valuation allowance) is

$0.9

million and

$1.2

million for the years ended

October 31, 2019

and

2018.

The recognition of unrecognized tax benefits could have an impact on the Company’s deferred tax assets and the valuation allowance.

The consolidated federal tax returns have been audited through

October 31, 2018

and these years are closed. We are also subject to various income tax examinations in the states in which we do business. The outcome for a particular audit cannot be determined with certainty prior to the conclusion of the audit, appeal, and in some cases, litigation process. As each audit is concluded, adjustments, if any, are appropriately recorded in the period determined. To provide for potential exposures, tax reserves are recorded, if applicable, based on reasonable estimates of potential audit results. However, if the reserves are insufficient upon completion of an audit, there could be an adverse impact on our financial position and results of operations. The statute of limitations for our major tax jurisdictions remains open for examination for tax years

2015

–

2018.