Income Taxes

12 Months Ended

Dec. 29, 2018

Our (benefit from) provision for income taxes consisted of the following:



	Fiscal Year Ended December 29, 2018			Fiscal Year Ended December 30, 2017			Fiscal Year Ended December 31, 2016
	(In thousands)
Federal income taxes:
Current	$	(99	)	$	(659	)	$	232
Deferred	(13,092		)	(45,868		)	—
State income taxes:
Current	3,786			1,054			962
Deferred	(2,749		)	(7,985		)	—
Foreign income taxes:
Current	—			49			(70		)
Deferred	—			—			(3		)
(Benefit from) provision for income taxes	$	(12,154	)	$	(53,409	)	$	1,121

The federal statutory income tax rate was 21%. Our (benefit from) provision for income taxes is reconciled to the federal statutory amount as follows:



	Fiscal Year Ended December 29, 2018			Fiscal Year Ended December 30, 2017			Fiscal Year Ended December 31, 2016
	(In thousands)
Expense (benefit) from income taxes computed at the federal statutory tax rate	$	(12,643	)	$	3,355		$	6,022
Expense (benefit) from state income taxes, net of federal benefit	(2,498		)	253			595
Valuation allowance change	1,974			(87,137		)	(6,319		)
Transaction costs	1,327			—			—
Nondeductible executive compensation	936			280			132
Share-based compensation - excess tax benefit	(1,494		)	(47		)	—
Other nondeductible items	344			431			271
Uncertain tax positions	(951		)	—			—
Tax rate change used to measure deferred taxes	681			—			—
Alternative minimum tax	—			—			232
Tax Cuts and Jobs Act of 2017	—			29,387			—
Other	170			69			188
(Benefit from) provision for income taxes	$	(12,154	)	$	(53,409	)	$	1,121

The change in valuation allowance is exclusive of items that do not impact income from continuing operations, but are reflected in the balance sheet change in deferred income tax assets and liabilities as disclosed in the components of net deferred income tax assets table below.

In accordance with the intraperiod tax allocation provisions of U.S. GAAP, we are required to consider all items (including items recorded in other comprehensive income) in determining the amount of tax expense or benefit that should be allocated between continuing operations and other comprehensive income. In fiscal 2018, there was no intraperiod tax allocation since there was a loss in continuing operations along with a loss in other comprehensive income for that period. In fiscal 2017, there was no intraperiod tax allocation since there was income from continuing operations and income in other comprehensive income. In fiscal 2016, there was no intraperiod tax allocation because there were sufficient loss carryforwards to offset income from continuing operations. While the income tax provision from continuing operations is reported in our Consolidated Statements of Operations and Comprehensive Income (Loss), the income tax expense on other comprehensive income is recorded directly to accumulated other comprehensive loss, which is a component of stockholders’ equity (deficit).

On December 22, 2017, the U.S. government enacted tax legislation commonly known as the Tax Cuts and Jobs Act of 2017 (the “Tax Act”). The Tax Act provides for significant changes to tax law for tax years beginning after December 31, 2017, including, but not limited to, the reduction of the U.S. federal corporate income tax rate from 35% to 21%, repeal of the corporate alternative minimum tax (“AMT”), and additional limitations on the deductibility of interest expense and executive compensation. The reduction in the federal corporate income tax rate from 35% to 21% resulted in a reduction in our deferred tax asset of $28.8 million with an offsetting adjustment to the valuation allowance of $28.6 million resulting in deferred income tax expense of $0.2 million in fiscal 2017. Furthermore, the Tax Act repealed the AMT and provided that taxpayers with AMT credit carryovers in excess of their regular tax liability may have the credits refunded over a period from 2018 - 2021. As a result, we released our valuation allowance on AMT credits due to the Tax Act of $0.8 million, and recorded a corresponding deferred income tax benefit. In addition, we reclassified our AMT credit carryforward of $0.8 million to a non-current receivable.

On December 22, 2017, Staff Accounting Bulletin No. 118 was issued by the Securities and Exchange Commission, which allows companies to record provisional amounts to reflect the income tax effects for the Tax Act during a measurement period that does not extend beyond one year from the enactment date. No additional changes were recorded to tax expense for executive compensation or any other deferred tax asset during fiscal 2018.

Our financial statements contain certain deferred tax assets which primarily resulted from tax benefits associated with the loss before income taxes in prior years, as well as net deferred income tax assets resulting from other temporary differences related to certain reserves, pension obligations, and differences between book and tax depreciation and amortization. We record a valuation allowance against our net deferred tax assets when we determine that, based on the weight of available evidence, it is more likely than not that our net deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences can be carried under tax law.

In our evaluation of the weight of available evidence at the end of fiscal 2018, we considered the recent reported loss generated in the current year and income generated in the prior two fiscal years, including the prior year income from Cedar Creek, which resulted in a three-year cumulative income situation as positive evidence which carried substantial weight. While this was substantial, it was not the only evidence we evaluated. We also considered evidence related to the four sources of taxable income, to determine whether such positive evidence outweighed the negative evidence. The evidence considered included:


•	future reversals of existing taxable temporary differences;


•	future taxable income exclusive of reversing temporary differences and carryforwards;


•	taxable income in prior carryback years, if carryback is permitted under the tax law; and


•	tax planning strategies.

At the end of fiscal 2018 and 2017, we concluded that the weight of the positive evidence outweighed the negative evidence. In addition to the positive evidence discussed above, we considered as positive evidence forecasted future taxable income and the evidence from business and tax planning strategies described below. Further positive evidence that occurred during the fourth quarter of 2017 was the refinancing of our revolving credit facility to a new five-year period with more favorable terms, the positive market reaction to our former majority shareholder’s underwritten secondary offering to sell its shares of our common stock, and the continued improvement of projected housing starts. As a result, we recorded a partial release of our valuation allowance of $53.5 million during the fourth quarter of 2017. The remaining valuation allowance of $12.3 million as of fiscal 2018 was primarily related to separate company state net operating loss carryforwards. Although we believe our estimates are reasonable, the ultimate determination of the appropriate amount of valuation allowance involves significant judgments. We believe that the change in control under Internal Revenue Code Section 382, resulting from the completion of the secondary offering on October 23, 2017 (as described above), will not cause any of our federal net operating losses to expire unused as management has been effectively implementing a real estate strategy involving sales and leaseback of real estate that is further supported by the sale-leaseback of four warehouses in January 2018 (See Note 15 for more detail). Additionally, the acquisition of Cedar Creek did not generate any limitations under Section 382 on Cedar Creek’s tax assets.

The components of our net deferred income tax assets are as follows:



	December 29, 2018			December 30, 2017
	(In thousands)
Deferred income tax assets:
Inventory reserves	$	2,826		$	1,654
Compensation-related accruals	4,717			3,692
Accruals and reserves	339			72
Accounts receivable	586			443
Interest expense limitation	3,169			—
Property and equipment	21,547			4,614
Pension	8,031			7,011
Benefit from NOL carryovers⁽¹⁾	32,325			46,873
Other	418			285
Total gross deferred income tax assets	73,958			64,644
Less: valuation allowances	(12,348		)	(10,415		)
Total net deferred income tax assets	61,610			54,229
Deferred income tax liabilities:
Intangible assets	(8,665		)	—
Other	(300		)	(376		)
Total deferred income tax liabilities	(8,965		)	(376		)
Deferred income tax asset, net	$	52,645		$	53,853


⁽¹⁾	Our federal NOL carryovers are $90.9 million and will expire in 12 to 17 years. Our state NOL carryovers are $249.3 million and will expire in 1 to 20 years.

Activity in our deferred tax asset valuation allowance for fiscal 2018 and 2017 was as follows:



	Fiscal Year Ended December 29, 2018		Fiscal Year Ended December 30, 2017
	(In thousands)
Balance as of beginning of the year	$	10,415	$	97,552
Valuation allowance provided for taxes related to:
Loss (income) before income taxes	1,933		(4,300		)
Tax Cuts and Jobs Act of 2017	—		(29,387		)
Release of valuation allowance	—		(53,450		)
Balance as of end of the year	$	12,348	$	10,415

We have recorded income tax and related interest liabilities where we believe certain of our tax positions are not more likely than not to be sustained if challenged. The following table summarizes the activity related to our gross unrecognized tax benefits:



(In thousands)	2018			2017		2016
Balance at beginning of fiscal year	$	184		$	184	$	184
Additions for tax positions in prior years	6,663			—		—
Reductions due to lapse of applicable statute of limitations	(1,004		)	—		—
Balance at end of fiscal year	$	5,843		$	184	$	184

Included in the unrecognized tax benefits as of December 29, 2018, and December 30, 2017, were $5.5 million and $0.2 million, respectively, of tax benefits that, if recognized, would reduce our annual effective tax rate. We also accrued interest related to these unrecognized tax benefits of $0.9 million during fiscal 2018, of which $0.3 million of this amount is reported in “Interest expense” in our Consolidated Statements of Operations and Comprehensive Income (Loss). The remaining $0.6

million of interest, as well as the gross addition for tax positions in prior years of $6.7 million disclosed above in the tabular reconciliation, were recorded through goodwill as part of the purchase accounting for the acquisition of Cedar Creek. No interest was accrued in fiscal 2017 and no penalties were accrued for either fiscal 2018 or 2017. We believe that it is reasonably possible that approximately $1.1 million of our remaining unrecognized tax benefit may be recognized by the end of fiscal 2019 as a result of a lapse of statute of limitations.

We file U.S., state, and foreign income tax returns in jurisdictions with varying statutes of limitations. The 2015 through 2018 tax years generally remain subject to examination by federal and most state and foreign tax authorities.