(9) Income Taxes

 

Summit Inc.’s tax provision includes its proportional share of Summit Holdings’ tax attributes. Summit Holdings’ subsidiaries are primarily limited liability companies, but do include certain entities organized as C corporations and a Canadian subsidiary. The tax attributes related to the limited liability companies are passed on to Summit Holdings and then to its partners, including Summit Inc. The tax attributes associated with the C corporation and Canadian subsidiaries are fully reflected in the Company’s consolidated financial statements. For the years ended December 30, 2017, December 31, 2016 and January 2, 2016, income taxes consisted of the following:

 

 

The effective tax rate on pre-tax income differs from the U.S. statutory rate of 35% due to the following:

 

 

The following table summarizes the components of the net deferred income tax asset (liability) as December 30, 2017 and December 31, 2016:

 

 

As of December 30, 2017, $390 million of our deferred tax assets were subject to our TRA, and after amortization and netting other deferred tax liabilities related to intangible assets, are carried at a net book value of $317 million in the above table.

 

Our income tax benefit was $284.0 million, $5.3 and $18.3 million in the fiscal years ended 2017, 2016 and 2015, respectively. We recorded an income tax benefit in fiscal 2017, primarily related to the release of the valuation allowance as discussed below, partially offset by charge related to the decrease in the federal statutory corporate tax rate. Our effective income tax rate was higher in 2017 as compared to 2016, primarily due to the benefit associated with the release of the valuation allowance discussed below, the accrual of the TRA expense, the statutory rate change referred to below and depletion in excess of U.S. GAAP depletion recognized in 2017. During the year ended 2016, our income tax benefit was $5.3 million. The effective tax rate for Summit Inc. differs from the federal rate primarily due to (1) the change in valuation allowance, (2) changes in statutory tax rates, (3) deductions related to our TRA, (4) tax depletion expense in excess of the expense recorded under U.S. GAAP, (5) the minority interest in the Summit Holdings partnership that is allocated outside of the Company and (6) various other items such as limitations on meals and entertainment, certain stock compensation and other costs.

 

The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible, as well as consideration of tax-planning strategies we may seek to utilize net operating loss carryforwards that are scheduled to expire in the near future. Due to our limited operating history as of December 31, 2016, during which we incurred only a small amount of pre-tax income over the previous three years, as well as our acquisitive business strategy, after considering both positive and negative evidence, we concluded that it was not more likely than not that we would fully realize those deferred tax assets, and therefore recorded a partial valuation allowance against those deferred tax assets as of December 31, 2016. However, the amount of cumulative income increased significantly during the year ended December 30, 2017, and we expect to generate additional income in 2018 and for the foreseeable future that will allow us to utilize the deferred tax assets. As a result of this significant positive evidence, we determined that the deferred tax assets had become more likely than not of becoming realizable and therefore released the majority of the valuation allowance in the third quarter of 2017. The Company updated the analysis as of December 30, 2017, and adjusted the remaining valuation allowance for certain net operating loss deferred tax assets within the C corporation entities that the Company does not expect to be realized. 

   

On December 22, 2017, the Tax Cuts and Jobs Act of 2017 (“TCJA”) was enacted. Among other things, the TCJA, beginning January 1, 2018, reduced the federal statutory rate from 35% to 21% and extended bonus depreciation provisions. In addition, the application of net operating loss carryforwards generated in 2018 and beyond will be limited, 100% asset expensing will be allowed through 2022 and begin to phase out in 2023, and the amount of interest expense we are able deduct may also be limited in future years.  As a result of the enactment of TCJA and other state effective rate changes, we reduced the carrying value of our net deferred tax assets by $216.9 million to reflect the revised federal statutory rate which will be in effect at the time those deferred tax assets are expected to be realized. Further, we evaluated the realizability of our net operating loss carryforwards, and determined a valuation allowance of $1.7 million was appropriate as of December 30, 2017. The TCJA contains many provisions which will be clarified through new regulations expected to be issued during 2018. As of December 30, 2017, we have not completed the accounting for the tax effects of the TCJA; however, we have made reasonable estimates on our existing deferred tax balances, as permitted by Staff Accounting Bulletin 118 issued by the SEC on December 22, 2017. In addition, we expect the states in which we operate to consider new statutory provisions related to the enactment of the TCJA during 2018 as well. We will record the impact, if any, of any newly issued regulations, as well as clarifications of the TCJA, as a discrete adjustment to our income tax provision in 2018.  

 

Our net operating loss carryforward deferred tax assets begin to expire in 2030 and are expected to reverse before expiration. Therefore, we have not given consideration to any potential tax planning strategies as a source of future taxable income to monetize those net operating loss carryforwards. The Company will continue to monitor facts and circumstances, including our analysis of other sources of taxable income, in the reassessment of the likelihood that the tax benefit of our deferred tax assets will be realized.

 

As of December 30, 2017 and December 31, 2016, after the release of the valuation allowance referred to above, Summit Inc. had a valuation allowance of $1.7 million and $502.8 million, respectively, which relates to certain deferred tax assets in taxable entities where realization is not more likely than not. The remaining valuation allowance as of December 30, 2017 relates to certain net operating loss deferred tax assets in a subsidiary that is not expected to generate future taxable income for the foreseeable future.

 

As of December 30, 2017, Summit Inc. had federal net operating loss carryforwards of $374.5 million, which expire between 2030 and 2037. As of December 30, 2017, $250 million of our federal net operating losses were under the terms of our TRA. In addition, Summit Inc. has alternative minimum tax credits of $0.2 million as of December 30, 2017, which do not expire. As of December 30, 2017 and December 31, 2016, Summit Inc. had a valuation allowance on net deferred tax assets of $1.7 million and $502.8 million, respectively. The deferred tax assets primarily relate to tax basis in intangible assets that exceeds book basis. The intangible asset tax basis was largely recognized as a result of the LP Unit exchanges in 2017 and 2016.

 

We have reclassified $4.3 million of deferred tax assets from other assets to deferred tax assets in the December 31, 2016 consolidated balance sheet to conform to the current year presentation. 

 

Tax Receivable Agreement— During 2015, the Company entered into a TRA with the holders of LP Units and certain other pre-initial public offering owners (“Investor Entities”) that provides for the payment by Summit Inc. to exchanging holders of LP Units of 85% of the benefits, if any, that Summit Inc. actually realizes (or, under certain circumstances such as an early termination of the TRA, is deemed to realize) as a result of increases in the tax basis of tangible and intangible assets of Summit Holdings and certain other tax benefits related to entering into the TRA, including tax benefits attributable to payments under the TRA. 

 

When LP Units are exchanged for an equal number of newly-issued shares of Summit Inc.’s Class A common stock, these exchanges result in new deferred tax assets. Using tax rates in effect as of each year end, $12.4 million, $422.5 million and $216.3 million of deferred tax assets were created during the years ended December 30, 2017, December 31, 2016 and January 2, 2016, respectively, when LP Units were exchanged for shares of Class A common stock. As a result of the analysis of the realizability of our deferred tax assets as indicated above, in the third quarter of 2017, we reduced the valuation allowance against our deferred tax assets, including those deferred tax assets subject to the TRA. Further, we determined the TRA liability to be probable of being payable and, as such, we recorded 85% of the deferred tax assets subject to the TRA, or $501.8 million, as TRA liability. We recorded $331.9 million and $59.3 million of TRA liability of which $0.6 million and $1.1 million was classified as accrued expenses as of December 30, 2017 and December 31, 2016, respectively. We have reclassified $58.1 million of other noncurrent liabilities to TRA liability in the December 31, 2016 consolidated balance sheet to conform to the current year presentation

 

Tax Distributions – The holders of Summit Holdings’ LP Units, including Summit Inc., incur U.S. federal, state and local income taxes on their share of any taxable income of Summit Holdings. The limited partnership agreement of Summit Holdings provides for pro rata cash distributions (“tax distributions”) to the holders of the LP Units in an amount generally calculated to provide each holder of LP Units with sufficient cash to cover its tax liability in respect of the LP Units. In general, these tax distributions are computed based on Summit Holdings’ estimated taxable income allocated to each holder of LP Units multiplied by an assumed tax rate equal to the highest effective marginal combined U.S. federal, state and local income tax rate applicable to an individual or corporate resident in New York, New York (or a corporate resident in certain circumstances). For the years ended December 30, 2017 and December 31, 2016, Summit Holdings paid tax distributions totaling $1.8 million and $13.0 million, respectively, to holders of its LP Units, other than Summit Inc.

 

C Corporation Subsidiaries — The effective income tax rate for the C corporations differ from the statutory federal rate primarily due to (1) tax depletion expense (benefit) in excess of the expense recorded under U.S. GAAP, (2) state income taxes and the effect of graduated tax rates and (3) various other items such as limitations on meals and entertainment and other costs. The effective income tax rate for the Canadian subsidiary is not significantly different from its historical effective tax rate.

 

As of December 30, 2017, and December 31, 2016, Summit Inc. and its subsidiaries had not recognized any liabilities for uncertain tax positions. No material interest or penalties were recognized in income tax expense during the years ended December 30, 2017, December 31, 2016 or January 2, 2016. Tax years from 2013 to 2017 remain open and subject to audit by federal, Canadian, and state tax authorities.