15.	Income Taxes

The total income tax

expense of

$287.0

million and

$286.5

million for the

three

and

nine

months ended

July 31, 2017,

respectively, was primarily due to increasing our valuation allowance to fully reserve against our deferred tax assets (“DTAs”). In addition, the same periods were also impacted by state tax expense from income generated in some states, which was

not

offset by tax benefits in other states that had losses for which we fully reserve the net operating losses.

he total income tax expense of

$1.6

million for the

three

months ended

July 31, 2016

was primarily due to deferred taxes. The same period was also impacted by state tax expenses and state tax reserves for uncertain tax positions. The income tax benefit of

$4.6

million for the

nine

months ended

July 31, 2016

was primarily due to incremental losses with

associated valuation allowance and a federal tax benefit related to receiving a specified liability loss refund of taxes paid in fiscal year

2002,

partially offset by a permanent difference related to stock compensation, state tax expenses, and state tax reserves for uncertain tax positions.

The permanent difference related to stock compensation arose because for tax purposes, the amount of stock compensation the Compa

ny expenses is the amount reported on an associate’s W-

when the equity award is exercised or received, whereas for accounting purposes, the amount the Company expenses is based on the fair value of the equity award on the date of grant. Therefore, the permanent difference for the

first

nine

months of fiscal

2016

due to stock compensation was because of this different treatment, which does

not

arise until the time the equity award is exercised or received by the associate and therefore reported on an associate’s W-

The amount was significant because of the issuance in fiscal

2016

of stock to Company executives in respect of awards that had been granted over

ten

years ago at significantly higher stock prices and thus significantly higher fair values as compared to the time of issuance to the executive. As a result, at the time the stock awards were issued in fiscal

2016,

a significant permanent difference between book and tax was created impacting the effective tax rate for

2016.

The federal specified liabi

lity loss refund of taxes in fiscal year

2002

was due to an amendment of a prior year’s tax return. The Internal Revenue Service issued the refund following the Company’s application therefor during the year ended

October 31, 2016.

The refund related to the portion of the fiscal year

2012

NOL attributable to a specified liability loss which, pursuant to Internal Revenue Code Section

172

(b)(

)(C), can be carried back

ten

years to

October 31, 2002.

A specified liability is any amount allowable as a deduction attributable to a product liability or expense incurred in investigation or settlement of claims because of a product liability. The refund was received in

February 2016

and therefore the tax credit was recorded in the

second

quarter of fiscal

2016.

Our

state NOLs of

$2.2

billion expire between

2017

and

2036.

Of the total amount,

$301.7

million will expire between

2017

through

2021;

$253.9

million will expire between

2022

through

2026;

$1,327.3

million will expire between

2027

through

2031;

and

$348.0

million will expire between

2032

through

2036.

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 ag

ainst 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.

As o

July 31, 2017,

we considered all available positive and negative evidence to determine whether, based on the weight of that evidence, an additional valuation allowance for our DTAs was necessary in accordance with ASC

740.

Listed below, in order of the weighting of each factor, is the available positive and negative evidence that we considered in determining that it is more likely than

not

that all of our DTAs will

not

be realized. In analyzing these factors, overall the negative evidence, both objective and subjective, outweighed the positive evidence. Based on this analysis, we increased the valuation allowance against our DTAs such that we have a full valuation allowance and determined that the current valuation allowance for deferred taxes of

$922

million as of

July 31, 2017

is appropriate.

Recent financial results

, especially the

$50.2

million pre-tax loss in the

third

quarter of

2017

primarily from the

$42.3

million loss on extinguishment of debt during the quarter, that put us in a cumulative

three

-year loss position as of

July 31, 2017.

Per ASC

740,

cumulative losses are

one

of the most objectively verifiable forms of negative evidence. (Negative Objective Evidence)

In the

third

quarter of fiscal

2017,

we completed

a debt refinancing/restructuring transaction which, by extending our debt maturities, will enable us to allocate cash to invest in new communities and grow our community count to get back to sustained profitability. (Positive Objective Evidence)

The refinancing discussed above will increase our interest incurred in fiscal

2018

and future years (based on our longer term modeling) by

$23.4

million per year. (Negative Objective Evidence)

We incurred pre-tax losses during the housing market decline and

the slower than expected housing market recovery. (Negative Objective Evidence)

We exited

two

geographic markets and are winding down operations in

two

other markets that have historically had losses. By exiting these underperforming markets, the Company w

ill be able to redeploy capital to better performing markets, which over time should improve our profitability. (Positive Subjective Evidence)

Evidence of a sustained recovery in the housing markets in which we operate, supported by economic data showing h

ousing starts, homebuilding volume and prices all increasing and forecasted to continue to increase. (Positive Subjective Evidence)

The historical cyclicality of the U.S. housing market, a more restrictive mortgage lending environment compared to before th

e housing downturn, the uncertainty of the overall US economy and government policies and consumer confidence, all or any of which could continue to hamper a faster, stronger recovery of the housing market. (Negative Subjective Evidence)