(7) Income Taxes

Income before income taxes for the Company’s domestic and foreign operations was as follows (in thousands):


	Fiscal Year
	2014		2013		2012
Domestic operations	$	6,627	$	605	$	8,018
Foreign operations		465		481		—

Total	$	7,092	$	1,086	$	8,018

Income tax expense (benefit) consisted of the following (in thousands):


	Fiscal Year
	2014			2013			2012
Federal:
Current	$	2,386		$	—		$	—
Deferred		(467	)		(818	)		(13,610	)

		1,919			(818	)		(13,610	)
State and Local:
Current		622			1,394			876
Deferred		178			(838	)		(3,260	)

		800			556			(2,384	)
Foreign:
Current		29			58			—
Deferred		—			—			—

		29			58			—

Income tax expense (benefit)	$	2,748		$	(204	)	$	(15,994	)

Income tax expense differed from the amounts computed by applying the U.S. federal income tax rates to income before income taxes as a result of the following (in thousands):


	Fiscal Year
	2014			2013			2012
Computed “expected” tax expense	$	2,411		$	380		$	2,726
Increase (reduction) resulting from:
Permanent differences		97			63			—
State and local income taxes, net of federal income tax effect		460			145			358
FICA and other tax credits		(222	)		(113	)		(41	)
Change in valuation allowance		—			—			(19,078	)
Non-deductible IPO costs		—			195			—
Rate change and true-ups		2			(874	)		41

	$	2,748		$	(204	)	$	(15,994	)

The tax effects of temporary differences that give rise to significant portions of the deferred tax assets and liabilities reflected in the consolidated balance sheets are presented below (in thousands):


	December 28, 2014			December 29, 2013
Deferred tax assets—current:
Accrued liabilities	$	1,047		$	1,238
Deferred revenue on gift certificates and gift cards		70			96
Deferred tax assets—non-current:
Net operating loss carryforwards		336			583
Stock-based compensation		8,317			8,391
Property and equipment depreciation		6,760			6,415
Deferred rent and start-up amortization		3,930			3,470
Accrued liabilities		345			347
FICA and other tax credits		116			55

Total deferred tax assets		20,921			20,595
Less: valuation allowance		(68	)		(57	)

Net deferred tax assets		20,853			20,538

Deferred tax liabilities—current:
Prepaids		(610	)		(553	)
Deferred tax liabilities—non-current:
Intangible asset		(1,126	)		(1,012	)
Smallwares		(668	)		(607	)
Other timing differences		(82	)		(288	)

Total gross deferred tax liabilities		(2,486	)		(2,460	)

Net deferred tax assets (liabilities)	$	18,367		$	18,078

As of December 28, 2014, the Company had available net operating loss carryforwards for state income tax purposes of approximately $5.5 million that will expire between 2018 and 2023, if unused. These net operating losses accounted for deferred tax assets of approximately $0.3 million for the year ended December 28, 2014.

As of December 28, 2014, the Company had prepaid income taxes of $1.9 million as a result of the passage of legislation related to the acceleration of tax depreciation during the fourth quarter. As of December 29, 2013, the Company had $0.5 million in prepaid income taxes. Prepaid income taxes are reflected in the prepaid expenses and other current assets line in the consolidated balance sheet.

The Company accounts for income taxes in accordance with Accounting Standards Codification (“ASC”) 740—Income Taxes, which requires that deferred tax assets and liabilities be recognized using enacted tax rates for the effect of the temporary differences between the book and tax basis of recorded assets and liabilities. The Company makes estimates and judgments with regard to the calculation of certain income tax assets and liabilities. ASC 740 requires that deferred tax assets be reduced by a valuation allowance if, based on the consideration of all available evidence, it is more likely than not that some portion of the deferred tax assets will not be realized. The Company has a significant amount of deferred tax assets recorded on its balance sheet, primarily related to timing differences for long-lived assets, stock-based compensation and deferred rent. Prior to fiscal year 2012, the Company determined that it was more likely than not its deferred tax assets would not be fully realizable based on a history of operating losses incurred and established a full valuation allowance in accordance with ASC Topic 740. In fiscal 2012, the Company evaluated evidence to determine if releasing the valuation allowance is appropriate and concluded that it was more likely than not the deferred tax assets would ultimately be realized. In determining the likelihood of future realization of the deferred tax assets as of December 30, 2012, the Company considered both positive and negative evidence and weighted the effect of such evidence based upon its objectivity. As a result of the Company’s analysis of both positive and negative evidence, it was determined that the weight of the positive evidence, primarily related to the cumulative income in the most recent three years and achievement of a sustained level of profitability, was sufficient to overcome the weight of the negative evidence, primarily related to continued uncertainty in the condition of the macro-economic environment, and a $16.9 million benefit was recorded to release the full valuation allowance against its deferred tax assets in the fourth quarter of 2012.

In accordance with its accounting policy, the Company recognizes accrued interest and penalties related to unrecognized tax benefits as a component of income tax expense. The policy did not change as a result of the adoption of “FIN No. 48.” As of December 29, 2013 and December 28, 2014, the Company had no interest or penalties accrued.

The tax years prior to 2011 are generally closed for examination by the United States Internal Revenue Service as a result of previous audits; however, these tax years may be subject to audit as a result of the Company utilizing net operating losses currently recorded. State statutes are generally open for audit for the 2009 to 2013 tax years. Additionally, the tax years from 2003 to 2008 are open for examination by certain state tax authorities due to net operating losses generated at the state level.