Note 22 - Income Taxes

12 Months Ended

Dec. 31, 2020

Notes to Financial Statements

Income Tax Disclosure [Text Block]

22.  Income Taxes:

The Company elected to qualify as a REIT in accordance with the Code commencing with its taxable year which began January 1, 1992. To qualify as a REIT, the Company must meet several organizational and operational requirements, including a requirement that it currently distribute at least 90% of its REIT taxable income to its stockholders. Management intends to adhere to these requirements and maintain the Company’s REIT status. As a REIT, the Company generally will not be subject to corporate federal income tax, provided that dividends to its stockholders equal at least the amount of its REIT taxable income. If the Company were to fail to qualify as a REIT in any taxable year, it would be subject to federal income taxes at regular corporate rates (including any applicable alternative minimum tax) and would not be permitted to elect REIT status for four subsequent taxable years. Even if the Company qualifies for taxation as a REIT, the Company is subject to certain state and local taxes on its income and property, and federal income and excise taxes on its undistributed taxable income. In addition, taxable income from non-REIT activities managed through TRSs is subject to federal, state and local income taxes. The Company is also subject to local taxes on certain non-U.S. investments.

Reconciliation between GAAP Net Income and Federal Taxable Income

The following table reconciles GAAP net income to taxable income for the years ended December 31, 2020, 2019 and 2018 (in thousands):

	2020			2019			2018
	(Estimated)			(Actual)			(Actual)
GAAP net income attributable to the Company	$	1,000,833		$	410,605		$	497,795
GAAP net (income)/loss attributable to TRSs		(960	)		1,119			(2,436	)
GAAP net income from REIT operations (1)		999,873			411,724			495,359
Net book depreciation in excess of tax depreciation		(61,272	)		55,903			46,754
Capitalized leasing/legal commissions		-			-			(15,268	)
Deferred/prepaid/above-market and below-market rents, net		(16,891	)		(33,287	)		(23,466	)
Fair market value debt amortization		(3,847	)		(4,510	)		(5,268	)
Book/tax differences from executive compensation (2)		10,388			6,026			5,460
Book/tax differences from non-qualified stock options		(231	)		(1,121	)		(112	)
Book/tax differences from investments in and advances to real estate joint ventures		45,782			4,837			22,263
Book/tax differences from sale of properties		(10,494	)		(13,830	)		(13,612	)
Book/tax differences from accounts receivable		45,175			1,573			1,636
Book adjustment to property carrying values and marketable equity securities		(588,777	)		37,709			59,866
Taxable currency exchange (loss)/gain, net		(29	)		(33	)		929
Tangible property regulation deduction		(50,597	)		-			(40,361	)
GAAP gain on change in control of joint venture interests		-			(137	)		(6,800	)
Dividends from TRSs		2			3,331			526
Severance accrual		6,425			(475	)		913
Other book/tax differences, net		(1,097	)		(3,946	)		(1,774	)
Adjusted REIT taxable income	$	374,410		$	463,764		$	527,045

Certain amounts in the prior periods have been reclassified to conform to the current year presentation, in the table above.

(1) All adjustments to "GAAP net income from REIT operations" are net of amounts attributable to noncontrolling interests and TRSs.

(2) In accordance with the Tax Cuts and Jobs Act, effective for tax years beginning on January 1, 2018, Section 162(m) of the Code places a $1.0 million limit per executive on the amount a company can deduct for executive compensation for each of their CEO, CFO and the other three most highly paid executives.

Characterization of Distributions

The following characterizes distributions paid for tax purposes for the years ended December 31, 2020, 2019 and 2018, (amounts in thousands):

	2020				2019				2018
Preferred I Dividends
Ordinary income	$	-	-		$	7,389	77	%	$	5,565	53	%
Capital gain		-	-			2,207	23	%		4,935	47	%
	$	-	-		$	9,596	100	%	$	10,500	100	%
Preferred J Dividends
Ordinary income	$	-	-		$	11,541	77	%	$	6,559	53	%
Capital gain		-	-			3,447	23	%		5,816	47	%
	$	-	-		$	14,988	100	%	$	12,375	100	%
Preferred K Dividends
Ordinary income	$	-	-		$	6,927	77	%	$	5,217	53	%
Capital gain		-	-			2,069	23	%		4,627	47	%
	$	-	-		$	8,996	100	%	$	9,844	100	%
Preferred L Dividends
Ordinary income	$	4,382	38	%	$	8,879	77	%	$	6,111	53	%
Capital gain		7,149	62	%		2,652	23	%		5,420	47	%
	$	11,531	100	%	$	11,531	100	%	$	11,531	100	%
Preferred M Dividends
Ordinary income	$	5,277	38	%	$	10,692	77	%	$	6,031	53	%
Capital gain		8,609	62	%		3,194	23	%		5,348	47	%
	$	13,886	100	%	$	13,886	100	%	$	11,379	100	%
Common Dividends
Ordinary income	$	133,849	38	%	$	328,726	70	%	$	235,642	50	%
Capital gain		214,863	61	%		98,618	21	%		212,077	45	%
Return of capital		3,522	1	%		42,265	9	%		23,564	5	%
	$	352,234	100	%	$	469,609	100	%	$	471,283	100	%
Total dividends distributed for tax purposes	$	377,651			$	528,606			$	526,912

For the years ended December 31, 2020, 2019 and 2018 cash dividends paid for tax purposes were equivalent to, or in excess of, the dividends paid deduction.

Taxable REIT Subsidiaries and Taxable Entities

The Company is subject to federal, state and local income taxes on income reported through its TRS activities, which include wholly owned subsidiaries of the Company. The Company’s TRSs include Kimco Realty Services II, Inc. (“KRS”), FNC Realty Corporation, Kimco Insurance Company (collectively “KRS Consolidated”) and the consolidated entity, Blue Ridge Real Estate Company/Big Boulder Corporation. 

On December 22, 2017, the Tax Cuts and Jobs Act was signed into law, making significant changes to taxation of corporations and individuals. Effective for tax years beginning on January 1, 2018, this tax reform law reduces the federal statutory income tax rate from 35% to 21% for corporations and changed other certain tax provisions and deductions.

The Company is also subject to local non-U.S. taxes on certain investments located outside the U.S.  In general, under local country law applicable to the entity ownership structures the Company has in place and applicable tax treaties, the repatriation of cash to the Company from its subsidiaries and joint ventures in Canada, Puerto Rico and Mexico generally is not subject to withholding tax. The Company is subject to and includes in its tax provision non-U.S. income taxes on certain investments located in jurisdictions outside the U.S. These investments are primarily held by the Company at the REIT level and not in the Company’s TRSs. Accordingly, the Company does not expect a U.S. income tax impact associated with the repatriation of undistributed earnings from the Company’s foreign subsidiaries.

Income taxes are accounted for under the asset and liability method. Deferred income taxes are recognized for the temporary differences between the financial reporting basis and the tax basis of taxable assets and liabilities.

The Company’s pre-tax book income/(loss) and (provision)/benefit for income taxes relating to the Company’s TRSs and taxable entities which have been consolidated for accounting reporting purposes, for the years ended December 31, 2020, 2019 and 2018, are summarized as follows (in thousands):

	2020			2019			2018
Income/(loss) before income taxes – U.S.	$	1,051		$	(1,682	)	$	4,331
(Provision)/benefit for income taxes, net:
Federal:
Current		(482	)		3,362			(1,221	)
Deferred		539			(349	)		(1,198	)
Federal tax benefit/(provision)		57			3,013			(2,419	)
State and local:
Current		(48	)		(26	)		(43	)
Deferred		34			(19	)		(414	)
State and local tax provision		(14	)		(45	)		(457	)
Total tax benefit/(provision)– U.S.		43			2,968			(2,876	)
Net income from U.S. TRSs	$	1,094		$	1,286		$	1,455
(Loss)/income before taxes – Non-U.S.	$	(64	)	$	(599	)	$	2,384
Benefit/(provision) for Non-U.S. income taxes:
Current	$	479		$	(69	)	$	1,634
Deferred		-			418			(358	)
Non-U.S. tax benefit	$	479		$	349		$	1,276

In addition, the Company’s (Provision)/benefit for income taxes, net includes $1.5 million of estimated state and local tax provision related to the REIT operations during the year ended December 31, 2020.

(Provision)/benefit for income taxes, net differs from the amounts computed by applying the statutory federal income tax rate to taxable income before income taxes as follows (in thousands):

	2020			2019			2018
Federal (provision)/benefit at statutory tax rate (1) (2)	$	(221	)	$	3,010		$	(2,490	)
State and local provision, net of federal benefit (3) (4)		(1,236	)		(42	)		(386	)
Total tax (provision)/benefit – U.S.	$	(1,457	)	$	2,968		$	(2,876	)

(1) The year ended December 31, 2019 includes a tax benefit from AMT credit refunds of $3.7 million and $1.1 million related to the recording of a deferred tax valuation allowance.

(2) The year ended December 31, 2018 includes a charge of $1.6 million related to the recording of a deferred tax valuation allowance.

(3)	The year ended December 31, 2018 includes a charge of $0.3 million related to the recording of a deferred tax valuation allowance.
(4)	The year ended December 31, 2020 includes $1.5 million of estimated state and local tax provision related to the REIT operations.

Deferred Tax Assets, Liabilities and Valuation Allowances

The Company’s deferred tax assets and liabilities at December 31, 2020 and 2019, were as follows (in thousands):

	2020			2019
Deferred tax assets:
Tax/GAAP basis differences	$	29,105		$	29,618
Net operating losses (1)		17,885			20,917
Tax credit carryforwards (2)		2,340			2,340
Capital loss carryforwards		-			2,270
Related party deferred losses		619			619
Charitable contribution carryforwards		23			23
Valuation allowance		(36,957	)		(42,703	)
Total deferred tax assets		13,015			13,084
Deferred tax liabilities		(12,765	)		(12,844	)
Net deferred tax assets	$	250		$	240

(1) Expiration dates ranging from 2021 to 2032.

(2) Expiration dates ranging from 2027 to 2035.

The major differences between the GAAP basis of accounting and the basis of accounting used for federal and state income tax reporting consist of impairment charges recorded for GAAP purposes, but not recognized for tax purposes, depreciation and amortization, rental revenue recognized on the straight-line method for GAAP, reserves for doubtful accounts, above-market and below-market lease amortization, differences in GAAP and tax basis of assets sold, and the period in which certain gains were recognized for tax purposes, but not yet recognized under GAAP.

Deferred tax assets and deferred tax liabilities are included in the captions Other assets and Other liabilities on the Company’s Consolidated Balance Sheets at December 31, 2020 and 2019. Operating losses and the valuation allowance are related primarily to the Company’s consolidation of its TRSs for accounting and reporting purposes.

Under GAAP a reduction of the carrying amounts of deferred tax assets by a valuation allowance is required, if, based on the evidence available, it is more likely than not (a likelihood of more than 50%) that some portion or all of the deferred tax assets will not be realized.  The valuation allowance should be sufficient to reduce the deferred tax asset to the amount that is more likely than not to be realized. Effective August 1, 2016, the Company merged Kimco Realty Services, Inc. (“KRSI”), a TRS holding REIT qualifying real estate, into a wholly owned LLC (the “Merger”) and KRSI was dissolved. As a result of the Merger, the Company determined that the realization of its then net deferred tax assets was not deemed more likely than not and as such, the Company recorded a full valuation allowance against these net deferred tax assets that existed at the time of the Merger.

The Company prepared an analysis of the tax basis built-in tax gain or built-in loss inherent in each asset acquired from KRSI in the Merger. Assets of a TRS that become REIT assets in a merger transaction of the type entered into by the Company and KRSI are subject to corporate tax on the aggregate net built-in gain (built-in gains in excess of built-in losses) during a recognition period. Accordingly, the Company is subject to corporate-level taxation on the aggregate net built-in gain from the sale of KRSI assets within 60 months from the Merger date (the recognition period) which expires August 1, 2021. The maximum taxable amount with respect to all merged assets disposed within 60 months of the Merger is limited to the aggregate net built-in gain at the Merger date. The Company compared fair value to tax basis for each property or asset to determine its built-in gain (value over basis) or built-in loss (basis over value) which could be subject to corporate level taxes if the Company disposed of the asset previously held by KRSI during the 60 months following the Merger date. In the event that sales of KRSI assets during the recognition period result in corporate level tax, the unrecognized tax benefits reported as deferred tax assets from KRSI will be utilized to reduce the corporate level tax for GAAP purposes.

Uncertain Tax Positions

The Company is subject to income tax in certain jurisdictions outside the U.S., principally Canada and Mexico. The statute of limitations on assessment of tax varies from three to seven years depending on the jurisdiction and tax issue. Tax returns filed in each jurisdiction are subject to examination by local tax authorities. The Company is currently under audit by the Canadian Revenue Agency and Mexican Tax Authority. The resolution of these audits are not expected to have a material effect on the Company’s financial statements. The Company has accrued $1.5 million and $2.4 million of non-current uncertain tax positions and related interest under the provisions of the authoritative guidance that addresses accounting for income taxes at December 31, 2020 and 2019, respectively, which are included in Other liabilities on the Company’s Consolidated Balance Sheets. The Company does not believe that the total amount of unrecognized tax benefits as of December 31, 2020, will significantly increase or decrease within the next 12 months.

During August 2016, the Mexican Tax Authority issued tax assessments against 35 entities, including certain joint ventures, of the Company that had previously held interests in operating properties in Mexico. These assessments relate to certain income tax, interest expense and withholding tax items subject to the United States-Mexico Income Tax Convention (the “Treaty”). The assessments were for the 2010 tax year with four of the 35 entities also assessed for the years 2007 and/or 2008. The assessments include amounts for taxes aggregating $33.7 million, interest aggregating $16.5 million and penalties aggregating $11.4 million. The Company’s aggregate share of these amounts is $52.6 million. The Company filed appeals in the Mexican Tax Court in September 2018 challenging these assessments, as it believes that it has operated in accordance with the Treaty provisions and has therefore concluded that no amounts are payable with respect to this matter. The U.S.  Competent Authority (Department of Treasury), responsible for administering U.S. tax treaties, indicates agreement with this position and has represented the Company regarding this matter with the Mexican Competent Authority. During April 2019, all the appeals were argued at a hearing in the Superior Chamber of the Tax Court. During the fourth quarter of 2019, the Company started receiving rulings from the Mexican Tax Court and has to date received 34 rulings on its 35 total assessments which found that $16.1 million ($12.8 million representing the Company’s share) of the total assessment was improperly assessed, but ruled in favor of the Mexican Tax Authority with respect to the balance of the assessments. Regarding the portion of the ruling in favor of the Mexican Tax Authority, the Company believes it has operated in accordance with the Treaty provisions and has therefore not changed its position on this matter. The Company has filed appeals for the 34 rulings it has received in the Mexican Appeals Court. The remaining ruling not yet received from the Mexican Tax Court is expected to be consistent with the current rulings and the Company intends to appeal when received. The appeals were assigned to 18 different Appeals Circuit Courts. To date, eight appealed assessments have been ruled on, of which one Circuit Court ruled in favor of the Company and five Circuit Courts ruled against in seven cases.  The unfavorable rulings have been appealed to the Supreme Court in Mexico. The Company intends to continue to vigorously defend its position and believes it will prevail, however this outcome cannot be assured.