Income Taxes

12 Months Ended

Dec. 31, 2022

Income Tax Disclosure [Abstract]

Income Taxes

INCOME TAXES

 

a. U.S. Tax Reform:

On December 22, 2017, the Tax Cuts and Jobs Act (the "TCJA") was signed into law. The TCJA makes broad and complex changes to the Code that impact the Company's provision for income taxes. The changes include, but are not limited to:

•Decreasing the corporate income tax rate from 35% to 21% effective for tax years beginning after December 31, 2017 (“Rate Reduction”); and

•Taxation of GILTI earned by foreign subsidiaries beginning after December 31, 2017. The GILTI tax imposes a tax on foreign income in excess of a deemed return on tangible assets of foreign corporations.

•Beginning in 2022, the TCJA requires taxpayers to capitalize research and development expenses with amortization periods over five and fifteen years, which has increased the Company's tax liability in the U.S.. As the Company has a valuation allowance against its deferred tax assets, including capitalized research and development costs, the tax provision expense has increased from prior year to account for the capitalization of research and development costs starting in 2022.

GILTI Tax

Certain income (i.e., GILTI) earned by controlled foreign corporations (“CFCs”) must be included currently in the gross income of the CFCs’ U.S. shareholder. GILTI is the excess of the shareholder’s “net CFC tested income” over the net deemed tangible income return, which is the excess of (1) 10 percent of the aggregate of the U.S. shareholder’s pro rata share of the qualified business asset investment of each CFC with respect to which it is a U.S. shareholder, over (2) the amount of certain interest expense taken into account in the determination of net CFC-tested income.

For 2022, the Company is not subject to tax on account of GILTI as it has net CFC tested loss on an aggregated basis.

Accounting for the TCJA

The Company accounted for the tax impact related to the TCJA and believe its analysis to be completed. The Company recognizes that the IRS is continuing to publish and finalize ongoing guidance which may modify accounting interpretation for the TCJA, the Company would look to account for these impacts in the period of such change is enacted.

b. The Company:

The Company is taxed in accordance with U.S. tax laws.

As of December 31, 2022, the Company had gross federal net operating loss ("NOL") carry-forwards of approximately $224,339, all of which can be carried forward indefinitely but can only be used to offset 80% of taxable income. As of December 31, 2022, the Company had NOL carry-forwards for state and foreign income tax purposes of approximately $144,527 and $13,122, respectively. State NOL carry-forwards of $124,556 expire starting 2023 and the remainder do not expire. Foreign NOL carry-forwards do not expire. In addition, as of December 31, 2022, the Company had federal retention credit carryforwards of approximately $24. If not utilized, the federal tax carryforwards will begin to expire in 2032.

A U.S. corporation's ability to utilize its federal and state NOL and tax credit carryforwards to offset its taxable income is limited under Section 382 of the Code if the corporation undergoes an ownership change (within the meaning of Code Section 382). In general, an “ownership change” occurs whenever the percentage of the stock of a corporation owned by “5-percent shareholders” (within the meaning of Code Section 382) increases by more than 50 percentage points over the lowest percentage of the stock of such corporation owned by such “5-percent shareholders” at any time over the testing period.

An ownership change under Code Section 382 would establish an annual limitation to the amount of NOL and tax credit carryforwards the Company could utilize to offset its taxable income or income tax in any single year. The annual limitation may result in the expiration of net operating losses and credits before utilization and in the event we have a change of ownership, utilization of the carryforwards could be restricted.

c. Loss before taxes on income is comprised as follows (in thousands): 

 

	Year ended
	December 31,
	2022		2021		2020
Domestic	$	(75,422)	$	(101,245)	$	(80,086)
Foreign	(35,393)		(9,594)		(5,812)
	$	(110,815)	$	(110,839)	$	(85,898)

 

d. Taxes on income (loss) are comprised as follows (in thousands):

 

	Year ended
	December 31,
	2022		2021		2020
Current:
Domestic:
Federal	$	3,008	$	(549)	$	90
State	1,314		145		128
Foreign	9,123		5,182		8,854
Total current income tax	$	13,445	$	4,778	$	9,072
Deferred:
Domestic:
Federal	$	83	$	43	$	8
State	13		6		1
Foreign	162		1,195		(969)
Total deferred income tax	$	258	$	1,244	$	(960)
Income tax expense	$	13,703	$	6,022	$	8,112

 

e. Deferred income taxes:

Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The Company’s deferred tax assets are derived from its U.S. NOL carry-forwards and other temporary differences.

ASC 740 requires an assessment of both positive and negative evidence concerning the realizability of our deferred tax assets in each jurisdiction. After considering evidence such as current and cumulative financial reporting incomes, the expected sources of future taxable income and tax planning strategies, the Company’s management concluded that a valuation allowance is required in the Unites States and some foreign jurisdictions. However, other foreign jurisdictions recorded a net deferred tax liability of $355 as of December 31, 2022. Future changes in these factors, including the Company’s anticipated results, could have a significant impact on the realization of the deferred tax assets which would result in an increase or decrease to the valuation allowance and a corresponding charge to income tax expense. The Company reevaluates the judgements surrounding its estimates and makes adjustments as appropriate each reporting period.

Significant components of our deferred tax assets and liabilities as of December 31, 2022 and 2021 are as follows (in thousands):

 

	December 31,
	2022		2021
Deferred tax assets:
Carry forward losses and credits	$	57,592	$	82,530
Deferred revenues	13,376		11,628
Accrued payroll, commissions, vacation	6,852		6,867
Equity compensation	22,474		18,469
Allowance for credit losses	772		1,711
Accrued severance pay	294		391
Operating lease liability	12,462		14,453
Section 174 capitalized costs	37,964		—
Other	2,784		512
Deferred tax assets before valuation allowance	154,570		136,561
Valuation allowance	(142,563)		(118,882)
Deferred tax assets	$	12,007	$	17,679
Deferred tax liability:
Operating lease right-of-use asset	(10,320)		(12,478)
Convertible senior notes, net	—		(5,298)
Other	$	(2,042)	$	—
Deferred tax liability	$	(12,362)	$	(17,776)
Net deferred tax asset (liability)	$	(355)	$	(97)

The change in the valuation allowance was approximately an increase of $23,681 and $41,340 during 2022 and 2021, respectively.

f. Reconciliation of the theoretical tax expenses:

A reconciliation between the theoretical tax expense, assuming all income is taxed at the statutory tax rate applicable to income of the Company, and the actual tax expense as reported in the consolidated statements of operations is as follows (in thousands, except tax rate):

 

	Year ended December 31,
	2022			2021			2020
Loss before taxes, as reported in the consolidated statements of operations	$	(110,815)		$	(110,839)		$	(85,898)
Statutory tax rate	21		%	21		%	21		%
Theoretical tax benefits on the above amount at the US statutory tax rate	$	(23,271)		$	(23,276)		$	(18,039)
Income tax at rate other than the U.S. statutory tax rate	10,404			(2,621)			4,845
Tax advances and non-deductible expenses including equity based compensation expenses	941			(8,533)			934
Operating losses and other temporary differences for which valuation allowance was provided	18,201			41,340			22,189
State tax	(1,301)			(2,945)			(2,872)
Impact of rate change	(207)			(2,568)			—
Change in tax reserve for uncertain tax positions	7,785			4,850			1,489
Other individually immaterial income tax items	1,151			(225)			(434)
Actual tax expense	$	13,703		$	6,022		$	8,112

 

g. A reconciliation of the beginning and ending amounts of unrecognized tax benefits, including interest and penalties, in the years ended December 31, 2022 and 2021 are as follows (in thousands):

 

Gross unrecognized tax benefits as of January 1, 2021	$	4,690
Increase in tax position for current year	4,335
Increase in tax position for prior years	3,624
Decrease in tax position for prior years	(870)
Decrease for lapse of statute of limitations/settlements	(2,239)
Gross unrecognized tax benefits as of December 31, 2021	$	9,540
Increase in tax position for current year	7,631
Increase in tax position for prior years	830
Decrease in tax position for prior years	(677)
Gross unrecognized tax benefits as of December 31, 2022	$	17,324

There was $17,324 of unrecognized income tax benefits that, if recognized, approximately $1,254 would impact the effective tax rate in the period in which each of the benefits is recognized. The Company includes interest and penalties related to unrecognized tax benefits within the provision for income taxes on the consolidated statements of operations. The total amount of interest and penalties is approximately $1,228 as of December 31, 2022.

h. Foreign taxation:

1. Israeli tax benefits under the Law for the Encouragement of Capital Investments, 1959 (the “Investment Law”):

VSL has utilized various benefits under the Investment Law. Those benefits relate only to taxable income attributable to the specific investment program and are conditioned upon meeting the terms stipulated in the Investment Law, the related regulations and the applicable certificate of approval. If VSL does not fulfill these conditions, in whole or in part, the benefits will most likely be cancelled, and VSL may be required to refund the benefits, in an amount linked to the Israeli consumer price index plus interest.

If cash dividends are distributed out of tax exempt profits in a manner other than upon complete liquidation, VSL will then become liable for tax at the rate of 10% - 25% (depending on the level of foreign investments in VSL) in respect of the amount distributed.

2. Undistributed earnings of foreign subsidiaries:

In general, it is the Company’s practice and intention to reinvest the earnings of its non-U.S. subsidiaries in those operations. Undistributed earnings, if any, of foreign subsidiaries are immaterial for all periods presented. Because the Company’s non-U.S. subsidiary earnings have previously been included in the computation of the one-time Transition Tax on foreign earnings required by the TCJA and throughout the years have been included in the GILTI computations, any additional taxes due with respect to such earnings or the excess of the amount for financial reporting over the tax basis of its foreign investments would generally be limited to foreign withholding taxes and/or U.S. state income taxes.

 

i. Tax assessments:

As of December 31, 2022, the Company's federal tax returns for the years 2010 through the current period, excluding the 2016 tax year which was audited by the Internal Revenue Service, and most state tax returns for the years 2009 through the current period, are still open to examination. The Company remains open to examination to the extent net carry-over unused operating losses and tax credit attributable to those years remain unutilized. The Company is currently under certain state tax audits.

During 2021, the Israeli Tax Authority initiated a withholding tax audit on VSL for the years 2016-2019. During 2022, the Company and the Israeli Tax Authority settled an income tax audit on VSL for the tax years 2016-2019.

The Company has final income tax assessments for VSL through 2019, Varonis (UK) Limited through 2017 and Varonis France SAS through 2018.

All other foreign subsidiaries do not have final tax assessments since their respective inceptions.