Income Taxes

We have elected to be taxed as a REIT under the applicable provisions of the Code for every year beginning with the year ended December 31, 1999. We have also elected for certain of our subsidiaries to be treated as taxable REIT subsidiaries (“TRS” or “TRS entities”), which are subject to federal and state income taxes. All entities other than the TRS entities are collectively referred to as the “REIT” within this Note 13.

Although we intend to continue to operate in such a manner as to enable us to qualify as a REIT, our actual qualification and taxation as a REIT depends upon our ability to meet, on a continuing basis, distribution levels, stock ownership and various qualification tests. During the years ended December 31, 2012, 2011 and 2010, our tax treatment of distributions per common share was as follows:



	2012		2011		2010
Tax treatment of distributions:
Ordinary income	$	2.23124	$	2.28131	$	1.99928
Long-term capital gain	0.18884		0.01869		0.07644
Unrecaptured Section 1250 gain	0.05992		—		0.06428
Distribution reported for 1099-DIV purposes	$	2.48000	$	2.30000	$	2.14000

We believe we have met the annual REIT distribution requirement by payment of at least 90% of our estimated taxable income for 2012, 2011 and 2010. Our consolidated (benefit) provision for income taxes for the years ended December 31, 2012, 2011 and 2010 was as follows:



	2012			2011			2010
	(In thousands)
Current	$	1,208		$	(4,080	)	$	2,459
Deferred	(7,490		)	(26,580		)	2,742
Total	$	(6,282	)	$	(30,660	)	$	5,201

The income tax benefit for the year ended December 31, 2012 primarily relates to the income tax benefit of ordinary losses (in part due to the reversal of acquisition deferred tax liabilities) related to our TRS entities, net of the current period valuation allowance. The income tax benefit for the year ended December 31, 2011 primarily relates to the reversal of certain income tax contingency reserves, including interest, and the income tax benefit of ordinary losses (in part due to the reversal of acquisition deferred tax liabilities) related to our TRS entities. The statute of limitations with respect to our 2008 U.S. federal income tax returns expired in September 2012. We did not recognize any income tax expense as a result of the litigation proceeds that we received in the third and fourth quarters of 2011, as no income taxes are payable on these proceeds.

The deferred tax expense for the year ended December 31, 2010 was adjusted by income tax expense of $2.3 million related to the noncontrolling interest share of net income. For the tax years ended December 31, 2012, 2011 and 2010, the Canadian income tax provision included in the consolidated benefit for income taxes was a benefit of $0.7 million, an expense of $0.5 million and a benefit of $0.3 million, respectively.

Although the TRS entities have paid minimal cash federal income taxes, their federal income tax liabilities may increase in future years as we exhaust net operating loss (“NOL”) carryforwards and as our senior living operations reportable business segment grows. Such increases could be significant.

A reconciliation of income tax expense, which is computed by applying the federal corporate tax rate for the years ended December 31, 2012, 2011 and 2010, to the income tax benefit is as follows:



	2012			2011			2010
	(In thousands)
Tax at statutory rate on earnings from continuing operations before unconsolidated entities, noncontrolling interest and income taxes	$	104,392		$	115,953		$	78,381
State income taxes, net of federal benefit	(842		)	(2,364		)	700
Increase in valuation allowance	33,072			9,408			5,705
Increase (decrease) in ASC 740 income tax liability	656			(4,084		)	2,420
Tax at statutory rate on earnings not subject to federal income taxes	(143,400		)	(151,264		)	(82,208		)
Other differences	(160		)	1,691			203
Income tax (benefit) expense	$	(6,282	)	$	(30,660	)	$	5,201

The REIT made no income tax payments for the years ended December 31, 2012, 2011 and 2010.

In connection with our acquisition of Sunrise Senior Living Real Estate Investment Trust (“Sunrise REIT”) in 2007 and the ASLG acquisition in 2011, we established a beginning net deferred tax liability of $306.3 million and $44.6 million, respectively, related to temporary differences between the financial reporting and tax bases of assets acquired and liabilities assumed (primarily property, intangible and related assets, net of NOL carryforwards). No net deferred tax asset or liability was recorded for the Lillibridge acquisition.

Each TRS is a tax paying component for purposes of classifying deferred tax assets and liabilities. The tax effects of temporary differences and carryforwards included in the net deferred tax liabilities at December 31, 2012, 2011 and 2010 are summarized as follows:



	2012			2011			2010
	(In thousands)
Property, primarily differences in depreciation and amortization, the tax basis of land assets and the treatment of interests and certain costs	$	(310,756	)	$	(332,111	)	$	(287,165	)
Operating loss and interest deduction carryforwards	366,590			343,843			103,733
Expense accruals and other	13,984			11,511			3,093
Valuation allowance	(326,837		)	(281,954		)	(60,994		)
Net deferred tax liabilities(1)	$	(257,019	)	$	(258,711	)	$	(241,333	)


(1)	2012 and 2011 includes approximately $2.7 million and $2.0 million, respectively, of deferred tax assets included in other assets on our Consolidated Balance Sheets.

Our net deferred tax liability decreased $1.7 million during 2012 due primarily to the reversal of deferred liabilities. Our net deferred tax liability increased $17.4 million during 2011 due primarily to the initial deferred tax liability related to the ASLG acquisition. See “Note 4—Acquisitions of Real Estate Property.”

Due to our uncertainty regarding the realization of certain deferred tax assets, we have established valuation allowances, the majority of which relate to the NOL carryforward related to the REIT.

For the years ended December 31, 2012 and 2011, the net difference between tax bases and the reported amount of REIT assets and liabilities for federal income tax purposes was approximately $5.1 billion and $5.3 billion, respectively, less than the book bases of those assets and liabilities for financial reporting purposes.

We are subject to corporate level taxes for any asset dispositions during the ten-year period immediately after the assets were owned by a C corporation (either prior to our REIT election, through stock acquisition or merger) (“built-in gains tax”). The amount of income potentially subject to built-in gains tax is generally equal to the lesser of the excess of the fair value of the asset over its adjusted tax basis as of the date it became a REIT asset or the actual amount of gain. Some, but not all, future gains could be offset by available NOL carryforwards.

Generally, we are subject to audit under the statute of limitations by the Internal Revenue Service (“IRS”) for the year ended December 31, 2009 and subsequent years and are subject to audit by state taxing authorities for the year ended December 31, 2008 and subsequent years. We are also subject to audit by the Canada Revenue Agency (“CRA”) and provincial authorities generally for periods subsequent to 2007 related to entities acquired or formed in connection with our Sunrise REIT acquisition.

At December 31, 2012, we had a combined NOL carryforward of $289 million related to the TRS entities and an NOL carryforward related to the REIT of $692 million. The REIT NOL carryforward increased from 2011 by $38.7 million and $546.8 million due to the NHP and ASLG acquisitions, respectively. These amounts can be used to offset future taxable income (and/or taxable income for prior years if an audit determines that tax is owed), if any. The REIT will be entitled to utilize NOLs and tax credit carryforwards only to the extent that REIT taxable income exceeds our deduction for dividends paid. Lillibridge and ASLG NOL carryforwards are limited as to their utilization by Section 382 of the Code. The NOL carryforwards begin to expire in 2024 with respect to the TRS entities and in 2016 for the REIT.

As a result of our uncertainty regarding the use of existing REIT NOLs, we have not ascribed any net deferred tax benefit to REIT NOL carryforwards as of December 31, 2012 and 2011. The IRS may challenge our entitlement to these tax attributes during its review of the tax returns for the previous tax years. We believe we are entitled to these tax attributes, but we cannot assure you as to the outcome of these matters.

The following table summarizes the activity related to our unrecognized tax benefits:



	2012			2011
	(In thousands)
Balance as of January 1	$	19,583		$	21,883
Additions to tax positions related to the current year	3,489			3,752
Additions to tax positions related to prior years	59			490
Subtractions to tax positions related to prior years	(968		)	(850		)
Subtractions to tax positions related to settlements	(47		)	—
Subtractions to tax positions as a result of the lapse of the statute of limitations	(2,650		)	(5,692		)
Balance as of December 31	$	19,466		$	19,583

Included in the unrecognized tax benefits of $19.5 million and $19.6 million at December 31, 2012 and 2011, respectively, was $17.9 million and $19.1 million of tax benefits that, if recognized, would reduce our annual effective tax rate. We accrued no penalties. Interest of $0.3 million related to the unrecognized tax benefits was accrued during 2012. We expect our unrecognized tax benefits to increase by $2.0 million during 2013.