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Note 12 - Income Taxes

12 Months Ended

Oct. 31, 2014

12. Income Taxes

Income taxes payable (receivable), including deferred benefits, consists of the following:

	Year Ended October 31,
(In thousands)	2014		2013
State income taxes:
Current	$3,197		$3,301
Deferred	(14,918	)	-
Federal income taxes:
Current	-		-
Deferred	(272,822	)	-
Total	$(284,543	)	$3,301

The provision for income taxes is composed of the following charges (benefits):

	Year Ended October 31,
(In thousands)	2014		2013		2012
Current income tax (benefit) expense:
Federal	$(1,690	)	$(9,878	)	$277
State (1)	2,466		518		(35,328	)
Total current income tax expense (benefit):	776		(9,360	)	(35,051	)
Federal	(272,822	)	-		-
State	(14,918	)	-		-
Total deferred income tax (benefit):	(287,740	)	-		-
Total	$(286,964	)	$(9,360	)	$(35,051	)

(1)

The current state income tax (benefit) expense is net of the use of state net operating losses totaling $24.5 million, $23.1 million, and $3.4 million for the years ended October 31, 2014, 2013, and 2012, respectively.

The total income tax benefit of $287.0 recognized for the twelve months ended October 31, 2014 was primarily due to the reversal of a substantial portion of our valuation allowance previously recorded against our deferred tax assets plus a refund received for a loss carryback to a previously profitable year and the impact of state tax reserves for uncertain state tax positions, partially offset by state tax expenses. The total income tax benefit of $9.4 million recognized for the year ended October 31, 2013 was primarily due to the release of reserves for a federal tax position that was settled with the Internal Revenue Service and a favorable state tax audit settlement, partially offset by state tax expenses and state tax reserves for uncertain state tax positions. The total income tax benefit was $35.1 million for the year ended October 31, 2012 primarily due to the elimination of reserves for uncertain state tax positions consistent with past practices and precedents of the relevant taxing authorities in their dealings with the Company, offset slightly by state tax expenses.

Deferred federal and state income tax assets primarily represent the deferred tax benefits arising from temporary differences between book and tax income which will be recognized in future years as an offset against future taxable income. If the combination of future years’ income (or loss) and the reversal of the timing differences results in a loss, such losses can be carried forward to future years. In accordance with ASC 740, we evaluate our deferred tax assets quarterly to determine if valuation allowances are required. ASC 740 requires that companies assess whether valuation allowances should be established based on the consideration of all available evidence using a “more likely than not” standard.

During the year ended October 31, 2014, we concluded that it was more likely than not that a substantial amount of our deferred tax assets (“DTA”) would be utilized. This conclusion was based on a detailed evaluation of all relevant evidence, both positive and negative. The positive evidence included factors such as positive earnings over the last 30 months and the expectation of continued earnings going forward and evidence of a sustained recovery in the housing markets in which we operate. Such evidence is supported by significant increases in key financial indicators over the last few years, including new orders, revenues, gross margin, backlog, community count and deliveries compared with the prior years. Economic data has also been affirming the housing market recovery. Housing starts, homebuilding volume and prices are increasing and forecasted to continue to increase. Historically low mortgage rates, affordable home prices, reduced foreclosures and a favorable home ownership to rental comparison are key factors in the recovery.

Potentially offsetting this positive evidence, we are currently in a three year cumulative loss position as of October 31, 2014. As per ASC 740, cumulative losses are one of the most objectively verifiable forms of negative evidence. Thus, an entity that has suffered cumulative losses in recent years may find it difficult to support an assertion that a DTA could be realized if such an assertion is based on forecasts of future profitable results rather than an actual return to profitability. In other words, an entity that has cumulative losses generally should not use an estimate of future earnings to support a conclusion that realization of an existing DTA is more likely than not if such a forecast is not based on objectively verifiable information. An objectively verifiable estimate of future income in that instance would be based on operating results from the reporting entity's recent history.

We determined that the positive evidence noted above, including our two years of sustained operating profitability, outweighs the existing negative evidence, and because of our current backlog, we expect to be in a three year cumulative income position in the early part of fiscal 2015. Given that ASC 740 suggests using recent historical operating results in the instance where a three year cumulative loss position still exists, we used our recent historical profit levels in projecting our pretax income over the future years in assessing the utilization of our existing DTAs. Therefore, we concluded that it is more likely than not that we will realize a substantial portion of our DTAs, and that a full valuation allowance is no longer necessary. This analysis, along with current year usage of net operating losses, resulted in a partial reversal of $285.1 million of our valuation allowance against DTAs, leaving a remaining valuation allowance of $642.0 million.

Our valuation allowance decreased to $642.0 million at October 31, 2014 from $927.1 million at October 31, 2013. Our state net operating losses of approximately $2.2 billion expire between 2015 and 2034. Our federal net operating losses of $1.5 billion expire between 2028 and 2033.

The deferred tax assets and liabilities have been recognized in the Consolidated Balance Sheets as follows:

	Year Ended October 31,
(In thousands)	2014		2013
Deferred tax assets:
Depreciation	$2,407		$2,345
Inventory impairment loss	219,487		230,553
Uniform capitalization of overhead	9,005		6,208
Warranty and legal reserves	14,342		15,571
Deferred income	547		551
Acquisition intangibles	18,014		22,523
Restricted stock bonus	7,121		5,781
Rent on abandoned space	2,830		3,591
Stock options	8,481		6,994
Provision for losses	43,585		38,923
Joint venture loss	5,633		5,360
Federal net operating losses	524,879		542,409
State net operating losses	176,225		182,940
Other	19,516		16,350
Total deferred tax assets	1,052,072		1,080,099
Deferred tax liabilities:
Acquisition intangibles	395		351
Debt repurchase income	121,934		152,450
Other	-		164
Total deferred tax liabilities	122,329		152,965
Valuation allowance	(642,003	)	(927,134	)
Net deferred income taxes	$287,740		$-

The effective tax rate varied from the statutory federal income tax rate. The effective tax rate is affected by a number of factors, the most significant of which is the valuation allowance related to our deferred tax assets. Due to the effects of these factors, our effective tax rates for 2014, 2013 and 2012 are not correlated to the amount of our income or loss before income taxes. The sources of these factors were as follows:

	Year Ended October 31,
	2014		2013		2012
Computed “expected” tax rate	35.0	%	35.0	%	35.0	%
State income taxes, net of federal income tax benefit	(3.5	)	14.0		(2.6	)
Permanent differences, net	0.8		11.3		(0.3	)
Deferred tax asset valuation allowance impact	(1,393.3	)	(66.2	)	(32.3	)
Tax contingencies	(0.6	)	(36.8	)	34.8
Adjustments to prior years’ tax accruals	(60.4	)	-		-
Effective tax rate	(1,422.0	)%	(42.7	)%	34.6	%

ASC 740-10 provides that a tax benefit from an uncertain tax position may be recognized when it is more likely than not that the position will be sustained upon examination, including resolutions of any related appeals or litigation processes, based on the technical merits.

Income tax positions must meet a more-likely-than-not recognition threshold at the effective date to be recognized upon the adoption of ASC 740-10 and in subsequent periods. This interpretation also provides guidance on measurement, derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition.

We recognize tax liabilities in accordance with ASC 740-10 and we adjust these liabilities when our judgment changes as a result of the evaluation of new information not previously available. Due to the complexity of some of these uncertainties, the ultimate resolution may result in a liability that is materially different from our current estimate of the tax liabilities. These differences will be reflected as increases or decreases to income tax expense in the period in which they are determined.

We recognize interest and penalties related to unrecognized tax benefits within the income tax expense line in the accompanying consolidated statement of operations. Accrued interest and penalties are included within the related tax liability line in the consolidated balance sheet.

The following is a tabular reconciliation of the total amount of unrecognized tax benefits for the year (in millions) excluding interest and penalties:

	2014		2013
Unrecognized tax benefit—November 1,	$1.8		$9.9
Gross increases—tax positions in current period	0.2		1.2
Decrease related to tax positions taken during a prior period	-		(9.3	)
Lapse of statute of limitations	(0.3	)	-
Unrecognized tax benefit—October 31,	$1.7		$1.8

Related to the unrecognized tax benefits noted above, as of October 31, 2014 and 2013, we have recognized a liability for interest and penalties of $0.4 million and $0.5 million, respectively. For the years ended October 31, 2014, 2013 and 2012, we recognized $(30) thousand, $0.1 million and $(18.3) million, respectively, of interest and penalties in income tax benefit.

It is likely that, within the next twelve months, the amount of the Company's unrecognized tax benefits will decrease by approximately $0.2 million, excluding penalties and interest. This reduction is expected primarily due to the expiration of the statutes of limitation. The portion of unrecognized tax benefits that, if recognized, would affect the Company’s effective tax rate (excluding any related impact to the valuation allowance) is $1.1 million and $1.2 million as of October 31, 2014 and 2013, respectively. The recognition of unrecognized tax benefits could have an impact on the Company’s deferred tax assets and the valuation allowance.

There is an open federal audit for the year ended October 31, 2013. We are also subject to various income tax examinations in the states in which we do business. The outcome for a particular audit cannot be determined with certainty prior to the conclusion of the audit, appeal, and in some cases, litigation process. As each audit is concluded, adjustments, if any, are appropriately recorded in the period determined. To provide for potential exposures, tax reserves are recorded, if applicable, based on reasonable estimates of potential audit results. However, if the reserves are insufficient upon completion of an audit, there could be an adverse impact on our financial position and results of operations. The statute of limitations for our major tax jurisdictions remains open for examination for tax years 2010–2013.

- 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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