Income taxes and deferred income taxes

12 Months Ended

May 31, 2021

15.	Income taxes and deferred income taxes

Loss before income taxes includes the following components:

	For the year ended May 31,
	2021			2020			2019
United States	$	(7,814	)		—			—
Canada		(323,964	)		(88,930	)		(30,733	)
Other countries		(13,208	)		(20,255	)		(7,405	)
	$	(344,986	)		(109,185	)		(38,138	)

The (recoveries) expense for income taxes consists of:

	For the year ended May 31,
	2021			2020			2019
Current:
United States	$	—			—			—
Canada		15,227			5,294			3,296
Other countries		697			375			407
	$	15,924			5,669			3,703

Deferred:
United States	$	1,517			—			—
Canada		(30,111	)		(9,226	)		(3,281	)
Other countries		3,698			(4,795	)		(2,467	)
	$	(24,896	)		(14,021	)		(5,748	)
Income tax benefits, net	$	(8,972	)		(8,352	)		(2,045	)

A reconciliation of income taxes at the statutory rate with the reported taxes is as follows:

	For the year ended May 31,
	2021			2020			2019
Loss before net income taxes:	$	(344,986	)		(109,185	)		(38,138	)
Income tax benefits at statutory rate		(72,408	)		(22,929	)		(8,009	)
Tax impact of foreign operations		(19,016	)		(6,310	)		(2,504	)
Foreign exchange and other		1,011			(63	)		(491	)
Non-deductible expenses		(1,347	)		2,474			5,731
Non-deductible (taxable) losses		45,230			2,152			(11,724	)
Changes in enacted rates		135			—			—
Change in fair value of warrant liability		(259	)		—			—
Stock based and other compensation		2,902			4,105			14,655
Change in valuation allowance		46,007			1,066			297
Non deductible dividend		(755	)		—			—
Non deductible impairment		—			11,153			—
Effect of transaction		(10,472	)		—			—

Income tax benefits, net	$	(8,972	)		(8,352	)		(2,045	)

The following table summarizes the components of deferred tax:

	May 31,
	2021			2020			2019
Deferred assets
Operating loss carryforwards - United States	$	57,320			—			—
Operating loss carryforwards - Canada		152,382			20,512			9,535
Operating loss carryforwards - Other Countries		7,801			9,037			5,079
Capital loss carryforwards		1,350			1,854			7,028
Intangible assets		86,541			—			—
Property and equipment		17,107			—			—
Currently nondeductible interest		9,491			—			—
Partnership interests		34,108			—			—
Deferred financing costs		4,237			5,022			—
Investment tax credits and related pool balance		526			—			—
Other		26,716			1,704			1,101
Total Deferred tax assets		397,579			38,129			22,743
Less valuation allowance		(265,940	)		(4,583	)		(4,583	)
Net deferred tax assets		131,639			33,546			18,160
Deferred tax liabilities
Property and equipment		(15,997	)		(8,356	)		(1,995	)
Intangible assets		(376,228	)		(69,580	)		(73,454	)
Convertible Senior Notes Due 2023		(4,977	)		(4,056	)		(4,739	)
Total deferred tax liabilities		(397,202	)		(81,992	)		(80,188	)
Net deferred tax liability	$	(265,563	)		(48,446	)		(62,028	)

On March 27, 2020, the Coronavirus Aid, Relief and Economic Security (“CARES”) Act was enacted and signed into law in the U.S. The CARES Act, among other things, permits U.S. net operating loss ("NOL") carryovers and carrybacks to offset 100% of U.S. taxable income for taxable years beginning before 2021. The CARES Act also contains modifications on the limitation of business interest for tax years beginning in 2019 and 2020. The modifications to Section 163(j) increase the allowable business interest deduction from 30% of adjusted taxable income to 50% of adjusted taxable income. The CARES Act results in increasing the allowable interest expense and NOL carryover deductions in 2020.

The Tax Cuts and Jobs Act (2017 Tax Act) was enacted on December 22, 2017 and reduced the U.S. statutory federal corporate tax rate from 35% to 21%. The Tax Act also contains additional provisions that are effective for the company in 2018, including a new tax on Global Intangible Low-Taxed Income (“GILTI”). Under GAAP, we are allowed to make an accounting policy choice to either (i) treat taxes due on future U.S. inclusions in taxable income related to GILTI as a current-period expense when incurred (the "period cost method"); or (ii) factor in such amounts into the measurement of our deferred taxes (the "deferred method"). The Company has made a policy decision to record GILTI tax as a current-period expense when incurred.

Deferred income taxes have not been recorded on the basis differences for investments in consolidated subsidiaries as these basis differences are indefinitely reinvested or will reverse in a non-taxable manner. Quantification of the deferred income tax liability, if any, associated with indefinitely reinvested basis differences is not practicable. Deferred income taxes have been recorded on the basis differences for investments in nonconsolidated entities.

At May 31, 2021, the Company had United States net operating loss carry-forwards of approximately $224,795 that can be carried forward indefinitely and generally limited in annual use to 80% of the current year taxable income starting 2021. The Company has Canadian net operating loss carry-forwards of approximately $510,456 that can be carried forward 20 years and begin to expire in 2028. Management believes that it is more-likely-than-not that the benefit from certain United States and foreign net operating loss carry-forwards will not be realized. In recognition of this risk, the Company has provided a valuation allowance on the deferred tax assets relating to these carry-forwards. The net change in the total valuation allowance was an increase of $261,357 and $0 for the years ended May 31, 2021 and 2020, respectively.

The Company recognizes the financial statement impact of a tax position only after determining that the relevant tax authority would more-likely-than-not sustain the position following an audit. For tax positions meeting the more-likely-than-not threshold, the amount recognized in the financial statements is the largest impact that has a greater than fifty percent likelihood of being realized upon ultimate settlement with the relevant tax authority.

The total amount of gross unrecognized tax benefits (“GUTB”) was $0, $0, and $0 as of May 31, 2021, 2020 and 2019 respectively. There is a reasonable possibility that the Company’s unrecognized tax benefits will change within twelve months due to audit settlements or the expiration of statute of limitations, but the Company does not expect the change to be material to the financial statements.

The Company recognizes interest and, if applicable, penalties for any uncertain tax positions. Interest and penalties are recorded as a component of income tax expenses. In the years ended May 31, 2021, 2020 and 2019, the Company recorded approximately $0, $0 and $0, respectively, of interest and penalty expenses related to uncertain tax positions. As of May 31, 2021, and 2020, the Company had a cumulative balance of accrued interest and penalties on unrecognized tax positions of $0 and $0, respectively.

The Company and its subsidiaries are subject to United States federal income tax as well as the income tax of multiple state and foreign jurisdictions. The Company is not currently under audit in any jurisdiction for any period. Major jurisdictions where there are wholly owned subsidiaries of Tilray, Inc. which require income tax filings include the Canada, Portugal, Germany, and Australia. The earliest periods open for review by local taxing authorities are fiscal years 2016 for Canada, 2017 for Portugal, 2016 for Germany, 2017 for Australia, and 2018 for United States.

- Definition

The entire disclosure for income taxes. Disclosures may include net deferred tax liability or asset recognized in an enterprise's statement of financial position, net change during the year in the total valuation allowance, approximate tax effect of each type of temporary difference and carryforward that gives rise to a significant portion of deferred tax liabilities and deferred tax assets, utilization of a tax carryback, and tax uncertainties information.

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