Annual report pursuant to Section 13 and 15(d)

Income Taxes

v3.8.0.1
Income Taxes
12 Months Ended
Dec. 31, 2017
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,
 
 
2017
 
2016
 
2015
(Income) loss attributable to common stockholders
 
$
(156,663
)
 
$
(127,680
)
 
$
33,545

Loss attributable to noncontrolling interest and redeemable noncontrolling interests
 
411,259

 
394,988

 
220,660

Loss before income taxes
 
$
254,596

 
$
267,308

 
$
254,205


The income tax provision (benefit) consists of the following (in thousands):
 
 
For the Year Ended December 31,
 
 
2017
 
2016
 
2015
Current
 
 
 
 
 
 
Federal
 
$

 
$

 
$

State
 

 

 

Total current expense
 

 

 

Deferred
 
 
 
 
 
 
Federal
 
21,258

 
30,197

 
(7,516
)
State
 
10,880

 
5,796

 
2,217

Total deferred provision
 
32,138

 
35,993

 
(5,299
)
Total
 
$
32,138

 
$
35,993

 
$
(5,299
)

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,
 
 
2017
 
2016
 
2015
Tax provision (benefit) at federal statutory rate
 
(34.00
)%
 
(34.00
)%
 
(34.00
)%
State income taxes, net of federal benefit
 
2.42

 
1.92

 
0.87

Effect of noncontrolling and redeemable noncontrolling interests
 
54.92

 
50.23

 
29.53

Stock-based compensation
 
0.75

 
0.68

 
1.06

Effect of prepaid tax asset
 

 
(5.57
)
 
0.04

Tax credits
 
(1.36
)
 
(1.61
)
 
(0.43
)
Effect of federal rate change
 
(12.53
)
 

 

Effect of valuation allowance
 
1.86

 
0.25

 

Other
 
0.56

 
1.56

 
0.85

Total
 
12.62
 %
 
13.46
 %
 
(2.08
)%

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 significant components of the Company’s deferred tax assets and liabilities for the periods presented (in thousands): 
 
 
December 31,
 
 
2017
 
2016
Deferred tax assets
 
 
 
 
Accruals and prepaids
 
$
14,390

 
$
18,010

Deferred revenue
 
32,502

 
23,559

Net operating loss carryforwards
 
186,863

 
218,719

Stock-based compensation
 
4,994

 
6,908

Investment tax and other credits
 
24,580

 
18,454

Total deferred tax assets
 
263,329

 
285,650

Less: Valuation allowance
 
(5,386
)
 
(663
)
Gross deferred tax assets
 
257,943

 
284,987

Deferred tax liabilities
 
 
 
 
Capitalized initial direct costs
 
38,752

 
45,030

Fixed asset depreciation
 
173,175

 
206,754

Deferred tax on investment in partnerships
 
105,147

 
448,600

Gross deferred tax liabilities
 
317,074

 
700,384

Net deferred tax liabilities
 
$
(59,131
)
 
$
(415,397
)

As of December 31, 2017, the Company had net operating loss carryforwards for federal, California and other state income tax purposes of approximately $699.6 million, $387.2 million and $247.5 million, respectively, which will begin to expire in the year 2028, 2028 and 2024, respectively, if not utilized. As of December 31, 2016, the Company had net operating loss carryforwards for federal, California and other state income tax purposes of approximately $571.3 million, $348.2 million and $176.7 million, respectively, which will begin to expire in the year 2028, 2028 and 2024, respectively, if not utilized.
As of December 31, 2017, the Company has an investment tax credit carryforward of approximately $11.9 million which begins to expire in the year 2028, if not utilized and no California enterprise zone credits. As of December 31, 2016, the Company has an investment tax credit carryforward of approximately $9.3 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, 2017.
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 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 $5.4 million on the deferred tax assets relating to these state net operating loss carryforwards and state tax credits which is an increase of $4.7 million in 2017.
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 will record 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. As a result of the adoption of ASU 2016-16, the Company recognized in retained earnings the reversal of the net prepaid tax assets of $378.5 million previously recorded for the tax deferral, and recognized gross a deferred tax asset of $378.2 million at January 1, 2017.
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 Reform
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 revenues 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 provides guidance on accounting for the tax effects of the Tax Act. SAB 118 provides 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. To the extent that a company’s accounting for certain income tax effects of the Tax Act is incomplete but it is able to determine a reasonable estimate, it must record a provisional estimate in the financial statements. Additional work is necessary for a more detailed analysis of our deferred tax assets and liabilities. Any subsequent adjustment to these amounts will be recorded to current tax expense in the quarter of 2018 when the analysis is complete.
We have accounted for the provisional adjustments but we have not completed our accounting for income tax effects for certain elements of the Tax Act. The Company has 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. The Company will continue to refine the calculations as additional analysis is completed.
In addition, the Company continues to evaluate their performance-based compensation plans within the new definitions under IRC Section 162(m) of the Internal Revenue Code. The preliminary assessment is that we believe that performance based compensation provided prior to November 2, 2017 was provided pursuant to a written binding agreement and will be deductible. No further adjustment has been made at this time. The accounting for this item is incomplete and may change as our interpretation of the provisions of the Act evolve, additional information becomes available or interpretive guidance is issued by the U.S. Treasury. The final determination will be completed no later than one year from the enactment date.
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, 2017 and 2016, the Company had $1.5 million of unrecognized tax benefits related to an acquisition in 2015. In addition, there was $0.4 million and $0.3 million of interest and penalties for uncertain tax positions as of December 31, 2017 and 2016, respectively. Due to the expiration of federal and California statute of limitations, the Company expects the total amount of gross unrecognized tax benefits will decrease by $1.1 million within 12 months of December 31, 2017.
One of our investment funds has recently been selected for audit by the Internal Revenue Service (the “IRS”). In addition, two of our investors are currently being audited by the IRS, and these investor audits involve 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., 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
2014 - 2017
State
2013 - 2017

Net Operating Loss Carryforwards
As a result of the Company’s net operating loss carryforwards as of December 31, 2017, the Company does not expect to pay income tax, including in connection with its income tax provision for the year ended December 31, 2017 until the Company’s net operating losses are fully utilized. As of December 31, 2017, the Company’s federal and state net operating loss carryforwards were $699.6 million and $634.7 million, respectively. If not utilized, the federal net operating loss will begin to expire in the year 2028 and the state net operating losses will begin to expire in the year 2024.