Annual report pursuant to Section 13 and 15(d)

Income Taxes

Income Taxes
12 Months Ended
Dec. 31, 2018
Income Tax Disclosure [Abstract]  
Income Taxes

15. Income Taxes


The Company has the following net deferred tax assets and liabilities at December 31, 2018 and 2017:


    December 31,  
    2018     2017  
Goodwill and intangible assets   $ (183,082 )   $ (1,591,326 )
Developed technology     (53,384 )     (42,698 )
Derivative liability     (113,811 )     (112,149 )
Property and equipment     12,140       85,351  
Other deferred tax assets     44,654       47,879  
Settlements     191,781       39,442  
Lease liability     -       23,081  
Stock based compensation     403,587       214,610  
Net operating loss     6,843,840       5,536,896  
Valuation allowance     (7,340,511 )     (6,004,605 )
Net deferred tax liability   $ (194,786 )   $ (1,803,519 )


The benefit for income taxes for the years ended December 31, 2018 and 2017 consists of the following:


    Year Ended December 31,  
    2018     2017  
Current provision   $ -     $ -  
Deferred provision (benefit)     (1,097,974 )     (1,798,585 )
      (1,097,974 )     (1,798,585 )
Current provision   $ -     $ -  
Deferred provision (benefit)     (307,901 )     (51,170 )
      (307,901 )     (51,170 )
Current provision   $ (210,177 )   $ 104,241  
Deferred provision (benefit)     -       -  
      (210,177 )     104,241  
Income tax expense (benefit)   $ (1,616,052 )   $ (1,745,514 )


A reconciliation of the statutory federal income tax rate to the Company’s effective tax rate is as follows:


    Year Ended December 31,  
    2018     2017  
Expected federal statutory rate     21.0 %     34.0 %
State income taxes, net of federal benefit     6.4 %     4.8 %
Change in expected future federal tax rate     0.0 %     -7.6 %
Impairment charge     -8.6 %     -23.6 %
Valuation allowance     -8.0 %     0.9 %
Permanent items     0.0 %     -0.1 %
Rate change     0.4 %     0.0 %
Other     -1.5 %     -1.1 %
      9.7 %     7.3 %


The valuation allowance at December 31, 2018 was approximately $7,340,000. The net change in the valuation allowance during the year ended December 31, 2018 was an increase of approximately $1,335,000. In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred income tax assets will not be realized. The ultimate realization of deferred income tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred income tax liabilities, projected future taxable income, and tax planning strategies in making this assessment. Based on consideration of these items, management has determined that enough uncertainty exists relative to the realization of the deferred income tax asset balances to warrant the application of a valuation allowance as of December 31, 2018.


At December 31, 2018, the Company had net operating loss carryforwards for federal and state income tax purposes of approximately $24,237,000. The federal and state net operating loss carryforwards will expire, if not utilized, beginning in 2034.


A tax benefit from uncertain tax positions may be recognized when it is more likely than not that the position that a tax position will be sustained upon examination. Management makes judgments as to the interpretation of the tax laws that may be challenged upon an audit and cause a change of tax liability. As of December 31, 2018 and 2017, the Company did not maintain a reserve for uncertain tax positions.


The Company files tax returns in multiple jurisdictions and is subject to examination in these jurisdictions. Significant jurisdictions in the U.S. include New York, Illinois and California. In May 2016, the Company received notice that the 2014 consolidated tax return of the Company is being audited by the Internal Revenue Service. During April 2017, the Internal Revenue Service notified the Company that their audit has been completed and that no change is being made to the Company’s consolidated tax return.


Section 382 of the Internal Revenue Code (Section 382) imposes a limitation on a corporation’s ability to utilize net operating loss carryforwards (NOLS) if it experiences an “ownership change” as defined within the Code. In general, an ownership change may result from transactions increasing the ownership of certain shareholders in the stock of a corporation by more than 50 percentage points over a three year period. In connection with the 2016 CFL Transaction, the Company issued CFL 1,777,417 shares of common stock. The Company evaluated the ownership change pertaining to this issuance and determined that in accordance with the rules related to Section 382 and certain built in gain allowances pursuant to the Code and subsequent Internal Revenue Code Rulings and Notices, the Company did experience an ownership change that would limit the Company’s ability to utilize its net operating losses. In accordance with Section 382 and certain built in gain allowances pursuant to the Code and subsequent Internal Revenue Code Rulings and Notices, utilization of the Company’s NOL will be limited. An analysis has determined the limitation to be $1,800,000 annually through 2021 and $273,000 thereafter. During 2017 312,500 of shares of common stock were issued to CFL, the limitation imposed by Section 382 were reevaluated. No adjustment to the previously computed limitation is required. As a result of this ownership change, no NOL is expected to be lost and not utilized. In the event the Company experiences another ownership change in the future, the NOL may, once again, be further limited.


On December 22, 2017 the U.S. Tax Cuts and Jobs Act of 2017 (“Tax Act”) was signed into law. As a result of the Tax Act, the U.S. statutory tax rate was lowered from 35% to 21% effective January 1, 2018, among other changes. ASC Topic 740 requires companies to recognize the effect of tax law changes in the period of enactment; therefore, the Company was required to revalue its deferred tax liabilities at the new rate. As a result of the reduction in the U.S. corporate income tax rate, we re-measured our ending net deferred tax liabilities at December 31, 2017 at the rate at which they are expected to reverse in the future and recognized a tax benefit of $788,000.


Additionally, Staff Accounting Bulletin No. 118 (“SAB 118”) was issued to address the application of U.S. GAAP in situations when a registrant does not have the necessary information available, prepared, or analyzed (including computations) in reasonable detail to complete the accounting for certain income tax effects of the Tax Act. December 22, 2018 marked the end of the measurement period for purposes of SAB 118. As such, the Company completed the provision calculations with its federal tax return.


The Tax Act provided for a one-time deemed mandatory repatriation of post-1986 undistributed foreign E&P through the year ended December 31, 2017. We had an estimated $332,000 of undistributed foreign E&P subject to the deemed mandatory repatriation, this income was offset by U.S. operating losses. As of December 31, 2018, foreign withholding taxes have not been provided on the undistributed E&P of our foreign subsidiaries as we intend to permanently reinvest these foreign earnings in those businesses outside the U.S.


Beginning in 2018, the Tax Act includes a new U.S. tax base erosion provision designed to tax the global intangible low-taxed income (“GILTI”). The GILTI provisions require us to include in our U.S. income tax return foreign subsidiary earnings in excess of an allowable return on the foreign subsidiary’s tangible assets. The Company has elected to recognize the tax on GILT as a period expense in the period the tax is incurred.