(11) Income Taxes

The provision for income taxes differs from the amount computed by applying the statutory rate as follows:

	Year Ended December 31,
(in thousands)	2012			2011			2010
Income taxes using U.S. federal statutory rate	$	(17,621	)	$	(10,501	)	$	(15,872	)
Amoritization of Gain on IP Migration		754			–			–
State income taxes, net of federal benefit		(4,299	)		(3,418	)		(4,276	)
Foreign rate differential		3,716			52			–
Valuation allowance		17,561			20,563			15,041
Derivative charge		(734	)		(5,292	)		5,423
Stock option exercises and cancellations		310			102			–
Research and development credits		326			(1,633	)		(519	)
Other		(13	)		127			203
Total	$	–		$	–		$	–

Significant components of the Company's deferred tax assets are as follows:

(in thousands)	2012		2011
Deferred tax assets:
Employee compensation accruals	$	6,176	$	4,973
Accrued liabilities		299		283
Research tax credits		2,382		2,708
Other		31		3
Net operating losses		63,765		47,118
Total deferred tax assets		72,653		55,085

Deferred tax liability:
Total deferred tax liabilities		–		–

Valuation allowance		72,653		55,085
Net deferred tax assets	$	–	$	–

As of December 31, 2012 and December 31, 2011, the Company had net operating loss carryforwards for U.S. federal income tax purposes of approximately $138.1 million and $122.1 million, respectively. A portion of the federal amount, $8.6 million, is subject to an annual limitation of approximately $123,000 as a result of a change in the Company's ownership through May 2003, as defined by Federal Internal Revenue Code Section 382 and the related income tax regulations. As a result of the limitation, approximately $131.9 million is available to offset future federal taxable income which will expire between 2018 and 2032. As of December 31, 2012 and December 31, 2011, the Company had net operating loss carryforwards for state and city income tax purposes of approximately $231.0 million and $180.2 million, respectively, which expire through 2032. As of December 31, 2012 and December 31, 2011, the Company had a net operating loss carryforward for foreign income tax purposes of $6.7 million and $0.2 million, respectively, which have indefinite carryforward periods. There were no foreign net operating losses prior to 2011.

The Company has a tax benefit of approximately $1.0 million related to the exercise of non-qualified stock options. Pursuant to ASC 718, the benefit will be recognized and recorded to additional paid-in capital when the benefit is realized through the reduction of taxes payable. Management has established a 100% valuation allowance against the deferred tax assets as management does not believe it is more likely than not that these assets will be realized. The Company's valuation allowance increased by approximately $17.6 million, $20.5 million, $15.0 million, $5.9 million, and $3.2 million in 2012, 2011, 2010, 2009, and 2008, respectively.

The Company complies with the provisions of ASC 740-10 in accounting for its uncertain tax positions. ASC 740-10 addresses the determination of whether tax benefits claimed or expected to be claimed on a tax return should be recorded in the financial statements. Under ASC 740-10, the Company may recognize the tax benefit from an uncertain tax position only if it is more likely that not that the tax position will be sustained on examination by the taxing authorities, based on the technical merits of the position. The Company has determined that the Company has no significant uncertain tax positions requiring recognition under ASC 740-10.

The Company is subject to income tax in the U.S., the Republic of Ireland, and certain state jurisdictions. The Company has not been audited by the U.S. Internal Revenue Service, international tax authorities, or any states in connection with income taxes. The periods from December 31, 2004 to December 31, 2012 remain open to examination by the U.S. Internal Revenue Service, and international and state tax authorities.

Delcath recognizes interest accrued related to unrecognized tax benefits and penalties, if incurred, as a component of income tax expense.