12. Income Taxes and Accounting for Uncertainty in Income Taxes

Income Taxes

Our income tax policy is to record the estimated future tax effects of temporary differences between the tax bases of assets and liabilities and amounts reported on our Consolidated Balance Sheets, as well as probable operating loss, tax credit and other carryforwards. Deferred tax assets are offset by valuation allowances when we believe it is more likely than not that net deferred tax assets will not be realized. We periodically evaluate our need for a valuation allowance. Determining necessary valuation allowances requires us to make assessments about historical financial information as well as the timing of future events, including the probability of expected future taxable income and available tax planning opportunities.

We file consolidated tax returns in the U.S. The income taxes of domestic and foreign subsidiaries not included in the U.S. tax group are presented in our consolidated financial statements based on a separate return basis for each tax paying entity.

As of December 31, 2012, we had no net operating loss carryforwards (“NOLs”) for federal income tax purposes and $18 million of NOL benefit for state income tax purposes. The state NOLs begin to expire in the year 2020. In addition, there are $4 million of tax benefits related to credit carryforwards which are partially offset by a valuation allowance. The credit carryforwards began to expire in 2012.

As of December 31, 2012, we had benefits of foreign tax credits and net operating loss carryforwards of approximately $19 million, which are fully offset by a valuation allowance.

The components of the (provision for) benefit from income taxes are as follows:

	For the Years Ended December 31,
	2012			2011			2010
	(In thousands)
Current (provision) benefit:
Federal	$	35,848		$	(235,357	)	$	(287,523	)
State	9,689			(27,523		)	(68,550		)
Foreign	(2,242		)	(4,199		)	—
	43,295			(267,079		)	(356,073		)
Deferred (provision) benefit:
Federal	(337,595		)	(590,618		)	(227,024		)
State	(46,564		)	(34,128		)	16,341
Foreign	—			(4,939		)	—
Decrease (increase) in valuation allowance	33,835			1,758			9,283
	(350,324		)	(627,927		)	(201,400		)
Total benefit (provision)	$	(307,029	)	$	(895,006	)	$	(557,473	)

Of our $933 million of “Income (loss) before income taxes” on our Consolidated Statements of Operations and Comprehensive Income (Loss), a loss of $31 million relates to our foreign operations.

The actual tax provisions for 2012, 2011 and 2010 reconcile to the amounts computed by applying the statutory Federal tax rate to income before taxes as follows:

	For the Years Ended December 31,
	2012		2011		2010
	% of pre-tax (income)/loss
Statutory rate	(35.0	)	(35.0	)	(35.0	)
State income taxes, net of Federal benefit	(2.5	)	(1.7	)	(2.5	)
Stock option compensation	0.1		—		0.3
Other	0.9		(0.5	)	0.6
Decrease (increase) in valuation allowance	3.6		0.1		0.5
Total benefit (provision) for income taxes	(32.9	)	(37.1	)	(36.1	)

The temporary differences, which give rise to deferred tax assets and liabilities as of December 31, 2012 and 2011, are as follows:

	As of December 31,
	2012			2011
	(In thousands)
Deferred tax assets:
NOL, credit and other carryforwards	$	18,862		$	23,017
Unrealized losses on investments	—			48,452
Accrued expenses	76,274			95,903
Stock-based compensation	25,477			23,365
Deferred revenue	62,727			45,556
State taxes net of federal effect	—			4,917
Total deferred tax assets	183,340			241,210
Valuation allowance	(22,358		)	(97,501		)
Deferred tax asset after valuation allowance	160,982			143,709

Deferred tax liabilities:
Depreciation and amortization	(1,659,240		)	(1,066,476		)
Unrealized gains on investments	(10,853		)	—
Other long-term liabilities	(30,511		)	(26,943		)
State taxes net of federal effect	(23,256		)	—
Total deferred tax liabilities	(1,723,860		)	(1,093,419		)
Net deferred tax asset (liability)	$	(1,562,878	)	$	(949,710	)

Current portion of net deferred tax asset	$	99,854		$	73,014
Current portion of net deferred tax liability	—			(48,310		)
Noncurrent portion of net deferred tax asset (liability)	(1,662,732		)	(974,414		)
Total net deferred tax asset (liability)	$	(1,562,878	)	$	(949,710	)

Accounting for Uncertainty in Income Taxes

In addition to filing federal income tax returns, we and one or more of our subsidiaries file income tax returns in all states that impose an income tax and a small number of foreign jurisdictions where we have immaterial operations. We are subject to U.S. federal, state and local income tax examinations by tax authorities for the years beginning in 2002 due to the carryover of previously incurred net operating losses. We are currently under a federal income tax examination for fiscal year 2008.

A reconciliation of the beginning and ending amount of unrecognized tax benefits included in “Long-term deferred revenue, distribution and carriage payments and other long-term liabilities” on our Consolidated Balance Sheets is as follows:

	For the Years Ended December 31,
Unrecognized tax benefit	2012			2011			2010
	(In thousands)
Balance as of beginning of period	$	266,703		$	193,320		$	224,029
Additions based on tax positions related to the current year	110,435			44,357			7,382
Additions based on tax positions related to prior years	—			34,762			11,800
Reductions based on tax positions related to prior years	(19,413		)	(1,169		)	(45,197		)
Reductions based on tax positions related to settlements with taxing authorities	(1,739		)	(1,185		)	(493		)
Reductions based on tax positions related to the lapse of the statute of limitations	(9,335		)	(3,382		)	(4,201		)
Balance as of end of period	$	346,651		$	266,703		$	193,320

We have $302 million in unrecognized tax benefits that, if recognized, could favorably affect our effective tax rate. We do not expect any portion of this amount to be paid or settled within the next twelve months.

Accrued interest and penalties on uncertain tax positions are recorded as a component of “Other, net” on our Consolidated Statements of Operations and Comprehensive Income (Loss). During the year ended December 31, 2012, we recorded less than $1 million in interest and penalty expense to earnings. During the year ended December 31, 2011, we recorded $4 million in interest and penalty expense to earnings. During the year ended December 31, 2010, we recorded $3 million in interest and penalty benefit to earnings. Accrued interest and penalties were $17 million and $17 million at December 31, 2012 and 2011, respectively. The above table excludes these amounts.