Annual report pursuant to Section 13 and 15(d)

Income Taxes

v3.19.3.a.u2
Income Taxes
12 Months Ended
Dec. 31, 2019
Income Tax Disclosure [Abstract]  
Income Taxes Income Taxes
The following table presents the (income) loss before income taxes for the periods presented (in thousands): 
 
 
For the Year Ended December 31,
 
 
2019
 
2018
 
2017
Income attributable to common stockholders
 
$
(18,117
)
 
$
(35,979
)
 
$
(137,842
)
Loss attributable to noncontrolling interest and redeemable noncontrolling interests
 
417,357

 
286,843

 
413,104

Loss before income taxes
 
$
399,240

 
$
250,864

 
$
275,262


The income tax provision (benefit) consists of the following (in thousands):
 
 
For the Year Ended December 31,
 
 
2019
 
2018
 
2017
Current
 
 
 
 
 
 
Federal
 
$
(454
)
 
$
(1,100
)
 
$

State
 
(593
)
 
292

 

Foreign
 
1,435

 

 

Total current expense (benefit)
 
388

 
(808
)
 

Deferred
 
 
 
 
 
 
Federal
 
(7,634
)
 
1,995

 
4,784

State
 
(972
)
 
8,135

 
7,569

Foreign
 

 

 

Total deferred (benefit) provision
 
(8,606
)
 
10,130

 
12,353

Total
 
$
(8,218
)
 
$
9,322

 
$
12,353


The following table represents a reconciliation of the statutory federal rate and the Company’s effective tax rate for the periods presented:
 
 
For the Year Ended December 31,
 
 
2019
 
2018
 
2017
Tax provision (benefit) at federal statutory rate
 
(21.00
)%
 
(21.00
)%
 
(34.00
)%
State income taxes, net of federal benefit
 
(0.97
)
 
0.32

 
1.94

Effect of noncontrolling and redeemable noncontrolling interests
 
21.95

 
24.01

 
51.03

Stock-based compensation
 
(1.96
)
 
(1.77
)
 
0.70

ASC 740-10 Reserve
 
(0.11
)
 

 

Tax credits
 
(0.99
)
 
(1.35
)
 
(1.25
)
Effect of rate change
 

 

 
(15.93
)
Effect of valuation allowance
 
0.40

 
3.04

 
0.81

Other
 
0.62

 
0.47

 
1.20

Total
 
(2.06
)%
 
3.72
 %
 
4.50
 %

Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The following table represents the components of the Company’s deferred tax assets and liabilities for the periods presented (in thousands):
 
 
December 31,
 
 
2019
 
2018
Deferred tax assets
 
 
 
 
Accruals and prepaids
 
$
19,704

 
$
18,871

Deferred revenue
 
11,229

 

Net operating loss carryforwards
 
347,997

 
288,039

Stock-based compensation
 
7,104

 
5,681

Investment tax and other credits
 
32,878

 
28,551

Interest Expense
 
12,394

 
9,614

Interest rate derivatives
 
18,988

 
1,282

Total deferred tax assets
 
450,294

 
352,038

Less: Valuation allowance
 
(12,120
)
 
(10,506
)
Gross deferred tax assets
 
438,174

 
341,532

Deferred tax liabilities
 
 
 
 
Deferred revenue
 

 
17,526

Capitalized costs to obtain a contract
 
66,247

 
54,823

Fixed asset depreciation
 
263,917

 
218,701

Deferred tax on investment in partnerships
 
173,974

 
144,115

Gross deferred tax liabilities
 
504,138

 
435,165

Net deferred tax liabilities
 
$
(65,964
)
 
$
(93,633
)

As of December 31, 2019, the Company has an investment tax credit carryforward of approximately $18.8 million which begins to expire in the year 2028, if not utilized and $1.0 million of California enterprise zone credits which begin to expire in the year 2023. As of December 31, 2018, the Company has an investment tax credit carryforward of approximately $14.9 million and California enterprise zone credits of approximately $1.0 million.
Generally, utilization of the net operating loss carryforwards and credits may be subject to a substantial annual limitation due to the ownership change limitations provided by the Internal Revenue Code (IRC) of 1986, as amended and similar state provisions. The Company performed an analysis to determine whether an ownership change under Section 382 of the Code had occurred and determined that no ownership changes were identified as of December 31, 2019.
Valuation allowances are provided against deferred tax assets to the extent that it is more likely than not that the deferred tax asset will not be realized. The Company’s management considers all available positive and negative evidence including its history of operating income or losses, future reversals of existing taxable temporary difference, taxable income in carryback years and tax-planning strategies. The Company has concluded that it is more likely than not that the benefit from certain federal tax credits, state net operating loss carryforwards, and state tax credits will not be realized. In recognition of this risk, the Company has provided a valuation allowance of $12.1 million on the deferred tax assets relating to these federal tax credits, state net operating loss carryforwards, and state tax credits which is an increase of $1.6 million in 2019.
The Company sells solar energy systems to investment Funds. As the investment Funds are consolidated by the Company, the gain on the sale of the assets has been eliminated in the consolidated financial statements. These transactions are treated as intercompany sales and any tax expense incurred related to these sales prior to fiscal year 2017 was deferred. As described in Note 2, Summary of Significant Accounting Policies - Recently Issued Accounting Standards, ASU 2016-16, Intra-Entity Transfers of Assets Other Than Inventory, requires entities to recognize income tax consequences of an intra-entity transfer of an asset other than inventory when the transfer occurs. As a result, a reporting entity would recognize the tax expense from the sale of assets in the seller’s tax jurisdiction when the transfer occurs, even though the pre-tax effects of the transaction are eliminated in the
consolidated financial statements. Any deferred tax asset that arises in the buyer’s jurisdiction would also be recognized at the time of the transfer. As the Company sells solar energy systems to Funds, the Company records the current tax effect of the gain on the sale as well as a deferred tax asset related to the Company’s increased tax basis in the partnership as a result of the sale. With the adoption of ASU 2016-16 on January 1, 2017 the Company reversed net prepaid tax assets of $378.5 million and recorded the gross deferred tax assets associated with the historical intercompany sales of solar energy systems, which in turn reduced the deferred tax liabilities on investment in partnerships by $378.2 million with the remaining $0.3 million being recorded as a cumulative effect of adoption in the Company’s Consolidated Statements of Redeemable Noncontrolling Interest and Stockholders’ Equity. The adoption did not have an impact on the Company’s Consolidated Statement of Operations.
The Company adopted ASU 2016-09, Compensation – Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting, on January 1, 2017. As a result of the adoption, the Company has increased its federal and state deferred tax assets by $3.3 million for the cumulative unrecognized federal and state gross windfall net operating loss carryover at December 31, 2016 of $8.6 million and $6.8 million, respectively, with an offsetting adjustment to retained earnings of $3.3 million.
Tax Cuts and Jobs Act
On December 22, 2017, the US government enacted comprehensive tax legislation commonly referred to as the Tax Cuts and Jobs Act (the “Tax Act”). The Tax Act makes broad and complex changes to the US tax code including but not limited to, (1) reducing the US federal corporate tax rate from 35% to 21%; (2) immediate expensing of certain tangible personal property (3) creating a new limitation on deductible interest expense; (4) enacting special rules for taxable year of inclusion for certain revenue and (5) changing rules related to the uses and limitations of net operating loss carryforwards created in tax years beginning after December 31, 2017.
On December 22, 2017, the SEC staff issued Staff Accounting Bulletin No. 118 (“SAB 118”) which provided guidance on accounting for the tax effects of the Tax Act. SAB 118 provided a measurement period that should not extend beyond one year from the Tax Act enactment date for companies to complete the accounting under ASC 740, Income taxes. In accordance with SAB 118 a company must reflect the income tax effects of those aspects of the Tax Act for which the accounting under ASC 740 is complete.
The Company recognized the provisional tax impacts related to the revaluation of deferred tax assets and liabilities and included these amounts in its consolidated financial statements for the year ended December 31, 2017. In its final assessment of the Tax Act, no adjustment has been made to current or deferred income tax expense in 2017 or 2018. As of December 31, 2018, the Company completed its accounting for all of the enactment-date income tax effects of the Act. While the Company has fully accounted for the impact of the Tax Act, the U.S. Treasury released proposed regulations under IRC Sec. 451(c) related to the recognition of advanced payments for goods and services on September 5, 2019. The Company completed its analysis of the proposed regulations and plans to early adopt the regulations on its 2019 income tax returns. The early adoption of the proposed regulations does not have a material impact to income tax expense.
Uncertain Tax Positions
The Company files tax returns as prescribed by the tax laws of the jurisdictions in which it operates. In the normal course of business, the Company is subject to examination by federal, state and local jurisdictions, where applicable. The statute of limitations for the tax returns varies by jurisdictions.
We determine whether a tax position is more likely than not to be sustained upon examination, including resolution of any related appeals or litigation processes, based on the technical merits of the position. We use a two-step approach to recognize and measure uncertain tax positions. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained upon tax authority examination, including resolution of related appeals or litigation processes, if any. The second step is to measure the tax benefit as the largest amount that is more than 50% likely of being realized upon ultimate settlement. We have analyzed the Company’s inventory of tax positions with respect to all applicable income tax issues for all open tax years (in each respective jurisdiction).
Our policy is to include interest and penalties related to unrecognized tax benefits, if any, within the provision for taxes in the consolidated statements of operations.  
As of December 31, 2019 and 2018, the Company had $0.0 million and $0.6 million, respectively, of unrecognized tax benefits related to an acquisition in 2015. In addition, there was $0.0 million and $0.2 million of interest and penalties for uncertain tax positions as of December 31, 2019 and 2018, respectively. During the 12 months ended December 31, 2019, the Company recorded an income tax benefit of $0.8 million, including penalties and interest, due to the expiration of federal and California statute of limitations. This benefit was fully offset by an indemnification asset that was written down to zero through operating expenses during 2018. Due to the expiration of federal and California statute of limitations, as of December 31, 2019, the Company has no other uncertain tax positions.
The change in unrecognized tax benefits during 2019, 2018 and 2017, excluding penalties and interest, is as follows:
 
 
For the Year Ended December 31,
 
 
2019
 
2018
 
2017
Unrecognized tax benefits at beginning of the year
 
$
647

 
$
1,525

 
$
1,525

Reversal of prior year unrecognized tax benefits due to the expiration of the statute of limitations
 
(647
)
 
(878
)
 

Unrecognized tax benefits at end of the year
 
$

 
$
647

 
$
1,525


One of our investment funds is currently under audit by the Internal Revenue Service (the “IRS”). In addition, one of our investors is currently being audited by the IRS, and this investor audit involves a review of the fair market value determination of our solar energy systems. If these investor audits result in an adverse finding, we would be subject to an indemnity obligation to these investors. The Company is subject to taxation and files income tax returns in the U.S., its territories, and various state and local jurisdictions. Due to the Company’s net losses, substantially all of its federal, state and local income tax returns since inception are still subject to audit.
The following table summarizes the tax years that remain open and subject to examination by the tax authorities in the most significant jurisdictions in which the Company operates:
 
Tax Years
U.S. Federal
2016 - 2019
State
2015 - 2019

Net Operating Loss Carryforwards
As a result of the Company’s net operating loss carryforwards as of December 31, 2019, the Company does not expect to pay income tax, including in connection with its income tax provision for the year ended December 31, 2019 until the Company’s net operating losses are fully utilized. As of December 31, 2019, the Company had net operating loss carryforwards for federal and state income tax purposes of approximately $718.1 million and $1.3 billion, respectively, which will begin to expire in 2028 for federal purposes and in 2024 for state purposes. In addition, federal and certain state net operating loss carryforwards generated in tax years beginning after December 31, 2017 total $535.1 million and $102.4 million, respectively, and have indefinite carryover periods and do not expire.