Note 6 - Income Taxes

12 Months Ended

Dec. 31, 2022

Notes to Financial Statements

Income Tax Disclosure [Text Block]

(6) INCOME TAXES 

Losses before income taxes derived from United States and non-U.S. operations are as follows:

(In Thousands)	Year Ended December 31,
	2022			2021			2020
Non-U.S.	$	41,408		$	(58,476	)	$	(137,225	)
United States		(43,715	)		(65,309	)		(60,436	)
	$	(2,307	)	$	(123,785	)	$	(197,661	)

Income tax expense (benefit) consists of the following:

(In Thousands)	U.S.
	Federal			State		Non-U.S.		Total
Year Ended December 31, 2020
Current	$	(21,005	)	$	—	$	18,816	$	(2,189	)
Deferred		(30	)		—		1,254		1,224
	$	(21,035	)	$	—	$	20,070	$	(965	)
Year Ended December 31, 2021
Current	$	682		$	—	$	6,480	$	7,162
Deferred		(1,418	)		—		131		(1,287	)
	$	(736	)	$	—	$	6,611	$	5,875
Year Ended December 31, 2022
Current	$	—		$	8	$	19,842	$	19,850
Deferred		—			—		36		36
	$	—		$	8	$	19,878	$	19,886

The actual income tax expense above differs from the amounts computed by applying the U.S. federal statutory tax rate of 21% to pre-tax loss as a result of the following:

(In Thousands)	Year Ended December 31,
	2022			2021			2020
Computed “expected” tax benefit	$	(484	)	$	(25,995	)	$	(41,509	)
Increase (reduction) resulting from:
Foreign income taxed at different rates		(7,240	)		10,984			27,639
Uncertain tax positions		(7,885	)		(25,417	)		(62,833	)
Nondeductible transaction costs		5,410			—			—
Valuation allowance - deferred tax assets		11,339			34,566			43,455
Valuation allowance - deferred tax true-up		(453	)		29,711			(6,523	)
Deferred tax true-up		453			(29,789	)		6,523
Foreign taxes		27,945			15,220			12,520
Return to accrual		(12,162	)		(7,691	)		11,401
162(m) - Executive compensation		552			125			286
Subpart F income		3,495			484			5,631
Other, net		(1,084	)		3,677			2,445
	$	19,886		$	5,875		$	(965	)

The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and deferred tax liabilities are as follows:

(In Thousands)	December 31,			December 31,
	2022			2021
Deferred tax assets:
Accrued employee benefit plan costs	$	8,726		$	7,275
Stock based compensation		991			649
Net operating loss and tax credit carryforwards		448,624			215,797
Restructuring fees not currently deductible for tax purposes		—			566
Disallowed business interest expense carryforward		10,935			10,386
Capital loss carryforward		2,027			—
Other		2,656			3,152
Gross deferred tax assets		473,959			237,825
Less valuation allowance		(441,893	)		(204,899	)
Net deferred tax assets		32,066			32,926
Deferred tax liabilities:
Depreciation and amortization		(30,959	)		(31,745	)
Outside basis difference deferred tax liability		(2,891	)		(2,891	)
Foreign interest withholding tax		(1,072	)		(990	)
Other		692			572
Gross deferred tax liabilities		(34,230	)		(35,054	)
Net deferred tax assets (liabilities)	$	(2,164	)	$	(2,128	)

As of December 31, 2022, the Company had U.S. federal net operating loss carryforwards of $445.6 million, which includes $166.2 million of net operating losses subject to an IRC Section 382 limitation. As of December 31, 2021, the Company had $417.9 million of U.S. federal net operating losses, which includes $163.7 million of net operating losses subject to an IRC Section 382 limitation. We have $405.3 million of U.S. foreign tax credits as of December 31, 2022. We have foreign net operating loss carryforwards of $415.7 million that will expire beginning in 2025 with many having indefinite carryforward periods. We have $7.7 million of non-U.S. foreign tax credits as of December 31,2022.

IRC Sections 382 and 383 provide an annual limitation with respect to the ability of a corporation to utilize its tax attributes, as well as certain built-in-losses, against future U.S. taxable income in the event of a change in ownership. Our emergence from Chapter 11 bankruptcy proceedings in 2017 is considered a change in ownership for purposes of IRC Section 382. The Company’s annual limitation under the IRC is approximately $15.0 million which is based on our value as of the ownership change date. In addition, the merger with GulfMark in 2018 resulted in a change in ownership of GulfMark for purposes of IRC Section 382. The GulfMark ownership change results in an annual limitation of approximately $7.0 million on GulfMark’s tax attributes generated prior to the ownership change date, which begin to expire in 2032. The Company has recorded a valuation allowance on the net operating loss balance as it believes that it is more likely than not that the deferred tax asset will not be realized.

Management assesses the available positive and negative evidence to estimate whether sufficient future taxable income will be generated to permit the use of the existing deferred tax assets. A significant piece of objective negative evidence evaluated, were the cumulative losses for financial reporting purposes that were incurred for the years ending December 31, 2022, 2021 and 2020. Such objective negative evidence limits the ability to consider other subjective evidence, such as our projections for future growth and tax planning strategies.

Based on this evaluation, for the period ended December 31, 2022, a valuation allowance of $441.9 million was recorded against our net deferred tax asset. For the period ended December 31, 2021, a valuation allowance of $204.9 million was recorded against our net deferred tax asset. The increase in the valuation allowance was primarily attributable to the additional valuation allowance on foreign tax credits that were previously reduced by uncertain tax positions which were released by a statute of limitation expiration. The amount of the deferred tax asset considered realizable could be adjusted if estimates of future U.S. taxable income during the carryforward period are reduced or increased or if objective negative evidence in the form of cumulative losses is no longer present and additional weight is given to subjective evidence such as our projections for growth and/or tax planning strategies.

We have not recognized a U.S. deferred tax liability associated with temporary differences related to investments in our non-U.S. holding companies as the Company does not intend to dispose of the stock of these companies. These differences relate primarily to stock basis differences attributable to factors other than earnings, given that any untaxed cumulative earnings were subject to taxation in the U.S. in 2017 in accordance with the Tax Act. Further, any post-2017 earnings of these subsidiaries will either be taxed currently for U.S. purposes or will be permanently exempt from U.S. taxation. It is not practicable to estimate the deferred tax liability associated with temporary differences related to investments in our non-U.S. holding companies due to the legal structure and complexity of U.S. and non-U.S. tax laws.

Historically, it has been the practice and intention of the Company to indefinitely reinvest the earnings of its non-U.S. subsidiaries. Considering the significant changes made by the Tax Act, the Company will no longer be indefinitely reinvested with regards to its non-U.S. earnings which can be repatriated free of taxation. However, the Company is indefinitely reinvested in the non-U.S. earnings that could be subject to taxation and no deferred taxes have been provided for such earnings. As of December 31, 2022, the non-U.S. positive unremitted earnings, for which the Company is indefinitely reinvested, are $71.1 million. It is not practicable for the Company to estimate the amount of taxes on positive unremitted earnings due to the legal structure and complexity of non-U.S. tax laws. The Company decides each period whether to indefinitely reinvest these earnings. If, as a result of these reassessments, the Company distributes these earnings in the future, additional tax liabilities could result.

We record uncertain tax positions on the basis of a two-step process in which (1) we determine whether it is more likely than not that the tax positions will be sustained on the basis of the technical merits of the position and (2) for those tax positions that meet the more-likely-than-not recognition threshold, we recognize the largest amount of tax benefit that is more than 50 percent likely to be realized upon ultimate settlement with the related tax authority. The recognition and measurement of tax liabilities for uncertain tax positions in any tax jurisdiction requires the interpretation of the related tax laws and regulations as well as the use of estimates and assumptions regarding significant future events. Changes in tax laws, regulations, agreements and treaties, foreign currency exchange restrictions or our level of operations or profitability in each taxing jurisdiction could have an impact on the amount of income taxes during any given year.

Our balance sheet reflects the following in accordance with ASC 740:

(In Thousands)	December 31,		December 31,
	2022		2021
Tax liabilities for uncertain tax positions	$	35,468	$	29,283
Income tax payable		29,009		11,480
Income tax receivable		1,502		1,322

Included in the liability balances for uncertain tax positions above for the periods ending December 31, 2022 and 2021, are $15.8 million and $17.8 million of penalties and interest, respectively. Penalties and interest related to income tax liabilities are included in income tax expense. Income tax payable is included in other current liabilities.

A reconciliation of the beginning and ending amount of all unrecognized tax benefits, and the liability for uncertain tax positions (but excluding related penalties and interest) are as follows:

(In Thousands)
Balance at December 31, 2019	$	414,042
Additions based on tax positions related to a prior year		2,223
Settlement and lapse of statute of limitations		(64,458	)
Reductions based on tax positions related to a prior year		(760	)
Balance at December 31, 2020 (A)	$	351,047
Additions based on tax positions related to the current year		53
Additions based on tax positions related to a prior year		18,515
Settlement and lapse of statute of limitations		(35,962	)
Balance at December 31, 2021 (A)	$	333,653
Additions based on tax positions related to the current year		744
Additions based on tax positions related to a prior year		10,155
Settlement and lapse of statute of limitations		(167,170	)
Balance at December 31, 2022 (A)	$	177,382

(A) The gross balance reported as uncertain tax positions is largely offset by $157.7 million of foreign tax credits and other tax attributes.

It is reasonably possible that a decrease of $11.9 million in unrecognized tax benefits may be necessary within the coming year due to the lapse of statutes of limitations or audit settlements.

The amount of unrecognized tax benefits that, if recognized for tax purposes, would affect the effective tax rate are $22.5 million and $29.3 million as of December 31, 2022 and  December 31, 2021 respectively.

With limited exceptions, we are no longer subject to tax audits by U.S. federal, state, local or foreign taxing authorities for fiscal years prior to March 2016. We have ongoing examinations by various foreign tax authorities and do not believe that the results of these examinations will have a material adverse effect on our financial position or results of operations.