The Company’s loss before provision for income taxes during the years ended December 31, 2017, 2016 and 2015, was a domestic loss of $29.4 million, $66.4 million, and $35.2 million, respectively.
The Company has incurred net operating losses since inception. The Company has not reflected any benefit of such net operating loss carryforwards in the accompanying consolidated financial statements and has established a full valuation allowance against its deferred tax assets.
The components of the provision for income taxes (benefit) during the years ended December 31, 2017, 2016 and 2015 are as follows (in thousands):
|
|
|
December 31,
|
|
|
|
|
2017
|
|
|
2016
|
|
|
2015
|
|
|
Current:
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
State
|
|
|
1
|
|
|
|
1
|
|
|
|
1
|
|
|
Foreign
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Total current
|
|
|
1
|
|
|
|
1
|
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
|
27,228
|
|
|
|
(20,942
|
)
|
|
|
(11,080
|
)
|
|
State
|
|
|
1,703
|
|
|
|
8,936
|
|
|
|
(3,250
|
)
|
|
Foreign
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
Total deferred
|
|
|
28,931
|
|
|
|
(12,006
|
)
|
|
|
(14,330
|
)
|
|
Valuation allowance
|
|
|
(28,931
|
)
|
|
|
12,006
|
|
|
|
14,330
|
|
|
Total provision for income taxes
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
Deferred income taxes reflect the net tax effects of (a) temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, and (b) operating losses and tax credit carryforwards.
The significant components of the Company’s deferred tax assets as of December 31, 2017 and 2016 are as follows (in thousands):
|
|
|
December 31,
|
|
|
|
|
2017
|
|
|
2016
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
Net operating loss carryforwards
|
|
$
|
31,086
|
|
|
$
|
44,909
|
|
|
Tax credits
|
|
|
4,394
|
|
|
|
4,084
|
|
|
Intangible assets
|
|
|
745
|
|
|
|
1,470
|
|
|
Capitalized R&D
|
|
|
26,661
|
|
|
|
40,297
|
|
|
Other
|
|
|
729
|
|
|
|
1,677
|
|
|
Total deferred tax assets
|
|
|
63,615
|
|
|
|
92,437
|
|
|
Deferred tax liabilities
|
|
|
—
|
|
|
|
—
|
|
|
Valuation allowance
|
|
|
(63,615
|
)
|
|
|
(92,437
|
)
|
|
Net deferred tax asset
|
|
$
|
—
|
|
|
$
|
—
|
|
The reconciliation between the Company’s effective tax rate on income (loss) from continuing operations and the statutory tax rates for the years ended December 2017, 2016, and 2015 is as follows:
|
|
|
2017
|
|
|
2016
|
|
|
2015
|
|
|
Statutory rate
|
|
|
34
|
%
|
|
|
34
|
%
|
|
|
34
|
%
|
|
State tax
|
|
|
(4
|
)%
|
|
|
(9
|
)%
|
|
|
6
|
%
|
|
Tax credit
|
|
|
3
|
%
|
|
|
1
|
%
|
|
|
2
|
%
|
|
Deemed dividend and warrant liability revaluation
|
|
|
8
|
%
|
|
|
(4
|
)%
|
|
|
—
|
%
|
|
Stock based compensation
|
|
|
(7
|
)%
|
|
|
(4
|
)%
|
|
|
(1
|
)%
|
|
Valuation allowance
|
|
|
98
|
%
|
|
|
(18
|
)%
|
|
|
(41
|
)%
|
|
Expiration of tax attribute due to 382 limitation
|
|
|
(21
|
)%
|
|
|
—
|
%
|
|
|
—
|
%
|
|
Re-measurement due to change in federal statutory rate
|
|
|
(111
|
)%
|
|
|
0
|
%
|
|
|
0
|
%
|
|
Effective tax rates
|
|
|
0
|
%
|
|
|
0
|
%
|
|
|
0
|
%
|
On December 22, 2017, new U.S. income tax reform measures known as the Tax Cuts & Jobs Act (TCJA) were enacted. As a result of the TCJA, the federal income tax rate for all corporations was permanently changed to 21% from 34%. Consequently, the Company’s deferred tax assets are required to be measured using the new enacted tax rate. As a result of the remeasurement, the Company’s deferred tax assets have decreased by $32.7 million. The decrease in the deferred tax asset was offset by an equal decrease in the valuation allowance, such that there is no impact on income tax expense.
Tax benefits of net operating losses, temporary differences and credit carryforwards are recorded as an asset to the extent that management assesses that realization is “more likely than not.” Realization of the future tax benefits is dependent on the Company’s ability to generate sufficient taxable income within the carryforward period. Because of the Company’s history of operating losses, management believes that the deferred tax assets arising from the above-mentioned future tax benefits are currently not likely to be realized and, accordingly, has provided a full valuation allowance. The net valuation allowance decreased by $28.9 million in 2017, increased by $12.0 million in 2016, and increased by $14.3 million in 2015.
Net operating losses and tax return credit carryforwards as of December 31, 2017, are as follows (in thousands):
| |
|
Amount
|
|
Expiration Years
|
|
Net operating losses—federal
|
|
$
|
126,090
|
|
Beginning 2024
|
|
Net operating losses—state
|
|
$
|
65,975
|
|
Beginning 2028
|
|
Tax return credits—federal
|
|
$
|
2,028
|
|
Beginning 2032
|
|
Tax return credits—state
|
|
$
|
2,995
|
|
Do not expire
|
Utilization of the domestic NOL and tax credit forwards may be subject to a substantial annual limitation due to ownership change limitations that may have occurred or that could occur in the future, as required by the Internal Revenue Code Section 382, as well as similar state provisions. In general, an “ownership change,” as defined by the code, results from a transaction or series of transactions over a three-year period resulting in an ownership change of more than 50 percentage points of the outstanding stock of a company by certain stockholders or public groups. Any limitation may result in expiration of all or a portion of the NOL or tax credit carryforwards before utilization. The Company incurred Section 382 ownership changes in 2012 and 2015 and as such, the Company’s net operating loss carryforwards have been limited. Additionally, the pre-change R&D tax credits have also been limited for federal tax purposes. The 2012 and 2015 Section 382 limitations resulted in the write-off of $159.9 million of the Company’s net operating loss and $12.6 million of the Company’s R&D credits. As of December 31, 2017, the Company has federal net operating losses of $126.1 million, of which $57.0 million are not subject to limitation and the remaining $69.1 million are subject to annual limitations due to the aforementioned ownership change in 2012 and 2015. The state R&D credits are not subject to limitation as they are carried forward indefinitely. Furthermore, on January 9, 2018, the Company incurred another Section 382 ownership change and as such, the Company’s net operating loss carryforwards will be further limited in the future. As a result of the ownership change, federal and state net operating loss carryforwards as of December 31, 2017 that would be available subsequent to January 9, 2018 were reduced to $7.5 million and $6.4 million, respectively. Furthermore, all of the federal R&D credits will be written off on January 9, 2018.
As of December 31, 2017, the Company had unrecognized tax benefits of $1.7 million, all of which would not currently affect the Company’s effective tax rate if recognized due to the Company’s deferred tax assets being fully offset by a valuation allowance. The Company did not anticipate any significant change to the unrecognized tax benefit balance due to the Section 382 limitation in January 2018 discussed above. A reconciliation of unrecognized tax benefits is as follows (in thousands):
|
|
|
Amount
|
|
|
Balance as of December 31, 2014
|
|
|
999
|
|
|
Additions based on tax positions related to prior year
|
|
|
—
|
|
|
Additions based on tax positions related to current year
|
|
|
269
|
|
|
Balance as of December 31, 2015
|
|
$
|
1,268
|
|
|
Additions based on tax positions related to prior year
|
|
|
(27
|
)
|
|
Additions based on tax positions related to current year
|
|
|
420
|
|
|
Balance as of December 31, 2016
|
|
$
|
1,661
|
|
|
Deductions based on tax positions related to prior year
|
|
|
(378
|
)
|
|
Additions based on tax positions related to current year
|
|
|
392
|
|
|
Balance as of December 31, 2017
|
|
$
|
1,675
|
|
For the year ended December 31, 2017, the $0.4 million reduction in the unrecognized tax benefit related to prior years’ position is due to the Section 382 limitation discussed above.
The Company would classify interest and penalties related to uncertain tax positions in income tax expense, if applicable. There was no interest expense or penalties related to unrecognized tax benefits recorded through December 31, 2017. The tax years 2004 through 2017 remain open to examination by one or more major taxing jurisdictions to which the Company is subject.
The Company does not anticipate that total unrecognized net tax benefits will significantly change prior to the end of 2018.