Income Taxes

12 Months Ended

Dec. 31, 2022

Income Tax Disclosure [Abstract]

Income Taxes

Income taxes are accounted for under the asset and liability method. Under this method, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases and operating loss and tax credit carryforwards. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will 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 are expected to become deductible. Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income and tax planning strategies in making this assessment. The Company includes interest accrued on the underpayment of income taxes in interest expense and penalties, if any, related to unrecognized tax benefits in general and administrative expenses. The Company recorded a valuation allowance against its U.S. and Germany deferred tax assets as it considered its cumulative loss in recent years as a significant piece of negative evidence. Since valuation allowances are evaluated on a jurisdiction basis, the Company believes that the deferred tax assets related to LivePerson Australia Holdings Pty. Ltd., LivePerson (UK) Limited, Kasamba Inc., LivePerson Japan and LivePerson Ltd. are more likely than not to be realized as these jurisdictions have positive cumulative pre-tax book income after adjusting for permanent and one-time items. During the year ended December 31, 2022, there was an increase in the valuation allowance recorded of $80.5 million.

The Company had a valuation allowance on certain deferred tax assets for the years ended December 31, 2022, 2021, and 2020 of $187.5 million, $107.1 million, and $55.4 million, respectively. For the year ended December 31, 2022, an increase in the valuation allowance in the amount of $38.8 million was recorded as an expense, an additional increase of $0.5 million was recorded to goodwill against acquired federal and state net operating losses and due to the adoption of ASU 2020-06, Accounting for Convertible Instruments and Contracts in an Entity’s Own Equity, the Company recorded an increase of the valuation allowance to other comprehensive income of $41.2 million. For the year ended December 31, 2021, an increase in the valuation allowance in the amount of $34.3 million was recorded as an expense and an additional increase of $17.4 million was recorded to goodwill against acquired federal and state net operating losses.

Under Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”), the Company’s use of its federal net operating loss (“NOL”) carryforwards may be limited if the Company experiences an ownership change, as defined in Section 382 of the Code. The use of NOLs from acquired businesses may also be limited under Section 382. Such an annual limitation could result in the expiration of the NOL carryforwards before utilization. Corresponding provisions of state law may limit the Company’s ability to utilize NOL carryforwards for state tax purposes. As of December 31, 2022, the Company had approximately $532.6 million of federal NOL carryforwards available to offset future taxable income. Included in this amount is $0.8 million of federal NOL carryovers from the Company’s acquisition of Proficient in 2006, $49.4 million of federal NOL carryovers from the Company’s acquisition of Tenfold in 2021, $64.9 million of federal NOL carryovers from the Company’s acquisition of VoiceBase in 2021 and $2.0 million of federal NOL carryovers from the Company’s acquisition of WildHealth in 2022. Approximately $58.2 million of these federal NOL carryforwards were generated in taxable years ending on or before December 31, 2017 and will expire in various years through 2037. Federal NOL carryforwards generated in taxable years ending after December 31, 2017, do not expire, but generally may only offset up to 80% of federal taxable income earned in a taxable year.    

The domestic and foreign components of income (loss) before provision for (benefit from) income taxes consist of the following: 

	Year Ended December 31,
	2022		2021		2020
	(In thousands)
United States	$	(220,060)	$	(128,210)	$	(113,689)
Israel	1,464		1,414		2,214
United Kingdom	1,428		1,145		536
Netherlands	2,514		3,629		3,398
Australia	533		755		1,663
Germany	(10,400)		(6,450)		243
Other (1)	501		339		507
	$	(224,020)	$	(127,378)	$	(105,128)

——————————————

(1)Includes Bulgaria, Canada, France, India, Italy, Japan, Mexico, Singapore, and Spain

No additional provision has been made for U.S. income taxes on the undistributed earnings of its wholly-owned Israeli subsidiary, LivePerson Ltd., as such earnings have been taxed in the U.S. and accumulated earnings of the Company’s other foreign subsidiaries are immaterial through December 31, 2022.

The provision for (benefit from) income taxes consists of the following:

	Year Ended December 31,
	2022		2021		2020
	(In thousands)
Current income taxes:
U.S. Federal	$	—	$	(22)	$	(581)
State and local	431		159		59
Foreign	2,458		3,698		2,408
Total current income taxes	2,889		3,835		1,886
Deferred income taxes:
U.S. Federal	(1,153)		(2,908)		(151)
State and local	79		20		459
Foreign	(88)		(3,351)		272
Total deferred income taxes	(1,162)		(6,239)		580
Total provision for (benefit from) income taxes	$	1,727	$	(2,404)	$	2,466

The difference between the total income taxes computed at the federal statutory rate and the provision for income taxes consists of the following:

	Year Ended December 31,
	2022		2021		2020
Federal statutory rate	21.00	%	21.00	%	21.00	%
State taxes, net of federal benefit	2.89	%	4.83	%	4.82	%
Non-deductible expenses – stock based compensation	(1.30)	%	(1.73)	%	(1.21)	%
Non-deductible expenses – earn-out	(3.96)	%	—	%	—	%
Non-deductible excess compensation	(0.14)	%	(2.30)	%	(5.52)	%
Foreign taxes	(0.15)	%	(0.86)	%	(3.98)	%
Valuation allowance	(17.33)	%	(26.92)	%	(30.87)	%
Stock based compensation – excess tax benefit / (tax deficiency)	(2.12)	%	6.58	%	9.93	%
Other	0.33	%	1.29	%	3.48	%
Total provision	(0.78)	%	1.89	%	(2.35)	%

The effects of temporary differences and federal NOL carryforwards that give rise to significant portions of federal deferred tax assets and deferred tax liabilities as of the dates presented:

	Year Ended December 31,
	2022		2021
	(In thousands)
Deferred tax assets:
Net operating loss carryforwards	$	141,011	$	141,930
Foreign tax credit	1,222		1,222
R&D tax credit	1,761		1,761
Original issue discount	9,515		13,530
Interest	2,665		4,188
Operating lease liability	760		3,145
Accounts payable and accrued expenses	7,270		7,010
Non-cash compensation	17,271		13,591
R&D capitalization	39,182		—
Allowance for doubtful accounts	5,091		1,280
Total deferred tax assets	225,748		187,657
Less valuation allowance	(187,525)		(107,061)
Deferred tax assets, net of valuation allowance	38,223		80,596
Deferred tax liabilities:
Property and equipment	(15,105)		(12,586)
Intangibles amortization	(13,142)		(15,361)
Goodwill amortization and contingent earn-out adjustments	(7,012)		(6,165)
Convertible notes issuance	—		(41,666)
Outside basis difference in subsidiary stock	(567)		—
Operating lease right-of-use asset	(524)		(1,833)
Total deferred tax liabilities	(36,350)		(77,611)
Net deferred tax assets	$	1,873	$	2,985

We have income tax NOL carryforwards related to federal, Australian, and German income tax carryforwards of $532.6 million, $1.9 million, and $19.3 million, respectively. The Australian and German NOLs can be carried forward indefinitely. For the federal NOLs, $474.5 million can be carried forward indefinitely, $0.8 million will expire between 2023

and 2026, and $57.3 million will expire between 2030 and 2037. We have $380.5 million of state NOLs, of which $78.4 million can be carried forward indefinitely and $302.1 million expire between 2023 and 2042.

ASC 740-10 clarifies the accounting for uncertainty in income taxes recognized in the financial statements in accordance with other provisions contained within this guidance. This topic prescribes a recognition threshold and a measurement attribute for the financial statement recognition and measurement of tax positions taken or expected to be taken in a tax return. For those benefits to be recognized, a tax position must be more likely than not to be sustained upon examination by the taxing authorities. The amount recognized is measured as the largest amount of benefit that is greater than 50% likely of being realized upon ultimate audit settlement. The Company had unrecognized tax benefits of $2.7 million as of December 31, 2022 and $2.9 million as of December 31, 2021, respectively. Accrued interest and penalties included in the Company’s liability related to unrecognized tax benefits and recorded in accrued expenses and other current liabilities were immaterial at December 31, 2022 and 2021.

A reconciliation of the beginning and ending amount of unrecognized tax benefits is as follows:

	Year Ended December 31,
	2022		2021		2020
	(In thousands)
Unrecognized tax benefits balance at January 1	$	2,917	$	3,615	$	2,053
Increase due to business combinations	—		488		—
Gross decrease for tax positions of prior years	—		—		(438)
Gross increase for tax positions of current years	205		376		2,984
Decrease due to settlement	—		(1,562)		(984)
Uncertain tax basis classified as held-for-sale liabilities	(401)		—		—
Gross unrecognized tax benefits at December 31	$	2,721	$	2,917	$	3,615

The tax years subject to examination by major tax jurisdictions include the years 2016 and forward for U.S. states and New York City, the years 2017 and forward for U.S. Federal, and the years 2015 and forward for certain foreign jurisdictions.

Tax Legislation    

On August 16, 2022, the Inflation Reduction Act of 2022 (“IRA”) was signed into law. The IRA imposes a number of

significant changes, including, among other things, a 15% minimum tax on the book income of certain corporations and a 1%

excise tax on stock buybacks by U.S. public companies. Only limited guidance has been issued to date with respect to these

changes. The Company does not currently expect the tax-related provisions of the IRA to have a material impact on its financial

results.

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act was signed into law making several changes to the Code. The changes include, but are not limited to: increasing the limitation on the amount of deductible interest expense, allowing companies to carryback certain net operating losses, and increasing the amount of net operating loss carryforwards that corporations can use to offset taxable income. As a result of the CARES Act, the Company filed refund claims relating to prior years totaling $0.6 million.     

A statutory rate change in the United Kingdom was enacted as of the balance sheet date ending December 31, 2021. Effective April 1, 2023, the tax rate will increase from 19% to 25%. The Company assessed and concluded the impact of the rate change is immaterial to its deferred taxes.