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Income Taxes
12 Months Ended
Dec. 31, 2017
Income Tax Disclosure [Abstract]  
Income taxes

Note 14 - Income taxes:

The provision for income taxes and the difference between such provision for income taxes, the amount that would be expected using the U.S. federal statutory income tax rate of 35% and the comprehensive provision for income taxes are presented below.

 

 

Years ended December 31,

 

 

2015

 

 

2016

 

 

2017

 

 

(in millions)

 

Expected tax expense (benefit), at U.S. federal statutory

   income tax rate of 35%

$

(18.0

)

 

$

4.9

 

 

$

39.3

 

Rate differences on equity in earnings (losses) of Kronos

 

(7.4

)

 

 

(7.4

)

 

 

(7.4

)

Adjustment to the reserve for uncertain tax positions, net

 

(3.0

)

 

 

-

 

 

 

-

 

Change in federal tax rate, net

 

-

 

 

 

-

 

 

 

(37.5

)

U.S. state income taxes and other, net

 

(.2

)

 

 

(.3

)

 

 

-

 

 

 

 

 

 

 

 

 

 

 

 

 

Income tax benefit

$

(28.6

)

 

$

(2.8

)

 

$

(5.6

)

 

 

 

 

 

 

 

 

 

 

 

 

Components of income tax benefit:

 

 

 

 

 

 

 

 

 

 

 

Currently payable (receivable):

$

.1

 

 

$

1.5

 

 

$

(.1

)

Deferred income tax benefit

 

(28.7

)

 

 

(4.3

)

 

 

(5.5

)

 

 

 

 

 

 

 

 

 

 

 

 

Income tax benefit

$

(28.6

)

 

$

(2.8

)

 

$

(5.6

)

 

 

 

 

 

 

 

 

 

 

 

 

Comprehensive provision for income taxes (benefit) allocable to:

 

 

 

 

 

 

 

 

 

 

 

Income (loss) from continuing operations

$

(28.6

)

 

$

(2.8

)

 

$

(5.6

)

Other comprehensive income (loss):

 

 

 

 

 

 

 

 

 

 

 

Marketable securities

 

(25.3

)

 

 

10.9

 

 

 

14.3

 

Currency translation

 

(9.8

)

 

 

(1.8

)

 

 

6.1

 

Interest rate swap

 

(.2

)

 

 

-

 

 

 

.2

 

Pension plans

 

1.4

 

 

 

(2.1

)

 

 

1.9

 

OPEB plans

 

(.2

)

 

 

(.2

)

 

 

(.1

)

 

 

 

 

 

 

 

 

 

 

 

 

Total

$

(62.7

)

 

$

4.0

 

 

$

16.8

 

 

 

The components of the net deferred tax liability at December 31, 2016 and 2017 are summarized in the following table.  

 

 

December 31,

 

 

2016

 

 

2017

 

 

Assets

 

 

Liabilities

 

 

Assets

 

 

Liabilities

 

 

(In millions)

 

Tax effect of temporary differences related to:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Inventories

$

.5

 

 

$

-

 

 

$

.3

 

 

$

-

 

Marketable securities

 

-

 

 

 

(17.0

)

 

 

-

 

 

 

(18.4

)

Property and equipment

 

-

 

 

 

(4.4

)

 

 

-

 

 

 

(2.7

)

Accrued OPEB costs

 

1.0

 

 

 

-

 

 

 

.5

 

 

 

-

 

Accrued pension costs

 

4.2

 

 

 

-

 

 

 

1.8

 

 

 

-

 

Accrued employee benefits

 

1.9

 

 

 

-

 

 

 

1.2

 

 

 

-

 

Accrued environmental liabilities

 

41.1

 

 

 

-

 

 

 

24.6

 

 

 

-

 

Goodwill

 

-

 

 

 

(2.6

)

 

 

-

 

 

 

(1.7

)

Other accrued liabilities

  and deductible differences

 

.2

 

 

 

-

 

 

 

.4

 

 

 

-

 

Other taxable differences

 

-

 

 

 

(3.3

)

 

 

-

 

 

 

(3.0

)

Investment in Kronos Worldwide, Inc.

 

-

 

 

 

(49.0

)

 

 

-

 

 

 

(52.3

)

Adjusted gross deferred tax assets (liabilities)

 

48.9

 

 

 

(76.3

)

 

 

28.8

 

 

 

(78.1

)

Netting of items by tax jurisdiction

 

(48.9

)

 

 

48.9

 

 

 

(28.8

)

 

 

28.8

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net noncurrent deferred tax asset (liability)

$

-

 

 

$

(27.4

)

 

$

-

 

 

$

(49.3

)

In accordance with GAAP, we recognize deferred income taxes on our undistributed equity in earnings (losses) of Kronos.  Because we and Kronos are part of the same U.S. federal income tax group, any dividends we receive from Kronos are nontaxable to us.  Accordingly, we do not recognize and we are not required to pay income taxes on dividends from Kronos.  We received aggregate dividends from Kronos of $21.1 million in each of 2015, 2016 and 2017.  See Note 6.  The amounts shown in the table above of our income tax rate reconciliation for rate differences on equity in earnings (losses) of Kronos represents the benefit associated with such non-taxability of the dividends we receive from Kronos, as it relates to the amount of deferred income taxes we recognize on our undistributed equity in earnings (losses) of Kronos.

We believe that we have adequate accruals for additional taxes and related interest expense which could ultimately result from tax examinations.  We believe the ultimate disposition of tax examinations should not have a material adverse effect on our consolidated financial position, results of operations or liquidity.  

  

The following table shows the changes in the amount of our uncertain tax positions (exclusive of the effect of interest and penalties) during 2015, 2016 and 2017:

 

 

December 31,

 

 

2015

 

 

2016

 

 

2017

 

 

(in millions)

 

Unrecognized liabilities:

 

 

 

 

 

 

 

 

 

 

 

Balance at the beginning of the period

$

16.8

 

 

$

12.2

 

 

$

12.2

 

Change in federal tax rate

 

-

 

 

 

-

 

 

 

(4.9

)

Lapse of applicable statute of limitations

 

(4.6

)

 

 

-

 

 

 

-

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at the end of the period

$

12.2

 

 

$

12.2

 

 

$

7.3

 

In the first quarter of 2015, we recognized a non-cash income tax benefit of $3.0 million related to the release of a portion of our reserve for uncertain tax positions due to the expiration of the applicable statute of limitations. We currently estimate that our unrecognized tax benefits will not change materially during the next twelve months.  If our uncertain tax positions were recognized, a benefit of $7.3 million would affect our rate in 2017.  We accrue interest and penalties on our uncertain tax positions as a component of our provision for income taxes.  The amount of interest and penalties we accrued during 2015, 2016 and 2017 was not material.  

We and Contran file income tax returns in U.S. federal and various state and local jurisdictions.  Our U.S. income tax returns prior to 2014 are generally considered closed to examination by applicable tax authorities.  On December 22, 2017, H.R.1, formally known as the “Tax Cuts and Jobs Act” (2017 Tax Act) was enacted into law.  This new tax legislation, among other changes, reduces the Federal corporate income tax rate from 35% to 21% effective January 1, 2018, eliminates the domestic production activities deduction and allows for the expensing of certain capital expenditures.  Following the enactment of the 2017 Tax Act, the Securities and Exchange Commission issued Staff Accounting Bulletin (SAB) 118 to provide guidance on the accounting and reporting impacts of the 2017 Tax Act.  SAB 118 states that companies should account for changes related to the 2017 Tax Act in the period of enactment if all information is available and the accounting can be completed. In situations where companies do not have enough information to complete the accounting in the period of enactment, a company must either 1) record an estimated provisional amount if the impact of the change can be reasonably estimated; or 2) continue to apply the accounting guidance that was in effect immediately prior to the 2017 Tax Act if the impact of the change cannot be reasonably estimated.  If estimated provisional amounts are recorded, SAB 118 provides a measurement period of no longer than one year during which companies should adjust those amounts as additional information becomes available.

Under GAAP, we are required to revalue our net deferred tax liability associated with our net taxable temporary differences in the period in which the new tax legislation is enacted based on deferred tax balances as of the enactment date, to reflect the effect of such reduction in the corporate income tax rate.  Other than with respect to temporary differences related to our marketable securities, and certain year-end actuarial valuations associated with our defined benefit pension and OPEB plans, our temporary differences as of December 31, 2017 are not materially different from our temporary differences as of the enactment date.  Accordingly, revaluation of our temporary differences is based on our net deferred tax liabilities as of December 31, 2017 (except for our temporary differences related to our marketable securities, and certain year-end actuarial valuations associated with our defined benefit pension and OPEB plans, for which such revaluation is based on the deferred income tax asset/liability as of the enactment date).  Such revaluation resulted in a non-cash deferred income tax benefit of $37.5 million recognized in continuing operations, reducing our net deferred tax liability.  The amounts recorded as of December 31, 2017 as a result of the 2017 Tax Act represent estimates based on information currently available and, in accordance with the guidance in SAB 118, these amounts are provisional and subject to adjustment as we obtain additional information and complete our analysis in 2018.  If the underlying guidance or tax laws change and such change impacts the income tax effects of the new legislation recognized at December 31, 2017, or we determine we have additional tax liabilities under other provisions of the 2017 Tax Act, we will recognize an adjustment in the first reporting period within the measurement period, which period ends December 22, 2018, in which such adjustment is determined.

Income tax matters related to Kronos

Kronos has substantial net operating loss (NOL) carryforwards in Germany (the equivalent of $652 million for German corporate purposes and $.5 million for German trade tax purposes at December 31, 2017) and in Belgium (the equivalent of $50 million for Belgian corporate tax purposes at December 31, 2017), all of which have an indefinite carryforward period.  As a result, Kronos has net deferred income tax assets with respect to these two jurisdictions, primarily related to these NOL carryforwards.  The German corporate tax is similar to the U.S. federal income tax, and the German trade tax is similar to the U.S. state income tax.  Prior to June 30, 2015, and using all available evidence, Kronos had concluded no deferred income tax asset valuation allowance was required to be recognized with respect to these net deferred income tax assets under the more-likely-than-not recognition criteria, primarily because (i) the carryforwards have an indefinite carryforward period, (ii) Kronos utilized a portion of such carryforwards during the most recent three-year period, and (iii) Kronos expected to utilize the remainder of the carryforwards over the long term.  Kronos had also previously indicated that facts and circumstances could change, which might in the future result in the recognition of a valuation allowance against some or all of such deferred income tax assets.  However, as of June 30, 2015, and given Kronos’ operating results during the second quarter of 2015 and Kronos’ expectations at that time for its operating results for the remainder of 2015, Kronos did not have sufficient positive evidence to overcome the significant negative evidence of having cumulative losses in the most recent twelve consecutive quarters in both its German and Belgian jurisdictions at June 30, 2015 (even considering that the carryforward period of Kronos’ German and Belgian NOL carryforwards is indefinite, one piece of positive evidence).  Accordingly, at June 30, 2015, Kronos concluded that it was required to recognize a non-cash deferred income tax asset valuation allowance under the more-likely-than-not recognition criteria with respect to its German and Belgian net deferred income tax assets at such date.  Such valuation allowance aggregated $150.3 million at June 30, 2015.  Kronos recognized an additional $8.7 million non-cash deferred income tax asset valuation allowance under the more-likely-than-not recognition criteria during the third and fourth quarters of 2015.  During 2016, Kronos recognized an aggregate $2.2 million non-cash tax benefit as the result of a net decrease in such deferred income tax asset valuation allowance, as the impact of utilizing a portion of Kronos’ German NOLs during such period more than offset the impact of additional losses recognized by its Belgian operations during such period.  Such valuation allowance aggregated approximately $173 million at December 31, 2016 ($153 million with respect to Germany and $20 million with respect to Belgium).  During the first six months of 2017, Kronos recognized an aggregate non-cash income tax benefit of $12.7 million as a result of a net decrease in such deferred income tax asset valuation allowance, due to the utilization of a portion of both the German and Belgian NOLs during such period.  At June 30, 2017, Kronos concluded it had sufficient positive evidence under the more-likely-than-not recognition criteria to support reversal of the entire valuation allowance related to its German and Belgian operations.  Such sufficient positive evidence at June 30, 2017 included, among other things, the existence of cumulative profits in the most recent twelve consecutive quarters (Germany) or profitability in recent quarters during which such profitability was trending upward throughout such period (Belgium), the ability to demonstrate future profitability in Germany and Belgium for a sustainable period, and the indefinite carryforward period for the German and Belgian NOLs. As discussed below regarding accounting for income taxes at interim dates, a large portion ($149.9 million) of the remaining valuation allowance as of June 30, 2017 was reversed in the second quarter with the remainder reversed during the second half of 2017.

In accordance with the ASC 740-270 guidance regarding accounting for income taxes at interim dates, the amount of the valuation allowance reversed at June 30, 2017 ($149.9 million, of which $141.9 million related to Germany and $8.0 million related to Belgium) relates to Kronos’ change in judgment at that date regarding the realizability of the related deferred income tax asset as it relates to future years (i.e. 2018 and after).  A change in judgment regarding the realizability of deferred tax assets as it relates to the current year is considered in determining the estimated annual effective tax rate for the year and is recognized throughout the year, including interim periods subsequent to the date of the change in judgment.   Accordingly, Kronos’ income tax benefit in 2017 includes an aggregate non-cash income tax benefit of $186.7 million related to the reversal of the German and Belgian valuation allowance, comprised of $12.7 million recognized in the first half of 2017 related to the utilization of a portion of both the German and Belgian NOLs during such period, $149.9 million related to the portion of the valuation allowance reversed as of June 30, 2017 and $24.1 million recognized in the second half of 2017 related to the utilization of a portion of both the German and Belgian NOLs during such period.  In addition, Kronos’ deferred income tax asset valuation allowance increased $13.7 million in 2017 as a result of changes in currency exchange rates, which increase was recognized as part of other comprehensive income (loss).

In addition to the reduction in the federal corporate income tax rate discussed above, the 2017 Tax Act (i) implements a territorial tax system and imposes a one-time repatriation tax (Transition Tax) on the deemed repatriation of the post-1986 undistributed earnings of non-U.S. subsidiaries accumulated up through December 31, 2017, regardless of whether such earnings are repatriated; (ii) eliminates U.S. tax on future foreign earnings (subject to certain exceptions); (iii) eliminates the net operating loss carryback and provides for an indefinite carryforward period subject to an 80% annual usage limitation; (iv) eliminates the domestic production activities deduction beginning in 2018; (v) allows for the expensing of certain capital expenditures; and (vi) imposes a tax on global intangible low-tax income; and (vii) imposes a base erosion anti-abuse tax.  

Kronos’ temporary differences as of December 31, 2017 are not materially different from its temporary differences as of the enactment date, accordingly revaluation of its net deductible temporary differences is based on its net deferred tax assets as of December 31, 2017. Such revaluation is recognized in continuing operations and is not material to Kronos.

Prior to the enactment of the 2017 Tax Act, the undistributed earnings of Kronos’ European subsidiaries were deemed to be permanently reinvested (Kronos had not made a similar determination with respect to the undistributed earnings of its Canadian subsidiary).  Pursuant to the Transition Tax provisions imposing a one-time repatriation tax on post-1986 undistributed earnings, Kronos recognized a provisional current income tax expense of $76.2 million in the fourth quarter of 2017.  Kronos will elect to pay such tax over an eight year period beginning in 2018, including approximately $6.1 million which will be paid in 2018 and the remaining $70.1 million will be paid in increments over the remainder of the eight year period.  The amounts recorded as of December 31, 2017 as a result of the 2017 Tax Act represent estimates based on information currently available and, in accordance with the guidance in SAB 118, these amounts are provisional and subject to adjustment as Kronos obtains additional information and completes its analysis in 2018.  If the underlying guidance or tax laws change and such change impacts the income tax effects of the new legislation recognized at December 31, 2017 or Kronos determines it has additional tax liabilities under other provisions of the 2017 Tax Act, including the tax on global intangible low-taxed income and the base erosion anti-abuse tax, Kronos will recognize an adjustment in the reporting period within the measurement period in which such adjustment is determined.  Such measurement period ends December 22, 2018 pursuant to the guidance of SAB 118.  

Prior to the enactment of the 2017 Tax Act the undistributed earnings of our European subsidiaries were deemed to be permanently reinvested (we had not made a similar determination with respect to the undistributed earnings of its Canadian subsidiary).  As a result of the implementation of a territorial tax system under the 2017 Tax Act, effective January 1, 2018, and the Transition Tax which in effect taxes the post-1986 undistributed earnings of our non-U.S. subsidiaries accumulated up through December 31, 2017, Kronos has now determined that all of the post-1986 undistributed earnings of its European subsidiaries are not permanently reinvested (Kronos had previously concluded that all of the undistributed earnings of its Canadian subsidiary are not permanently reinvested). Accordingly, in the fourth quarter of 2017 Kronos recognized an aggregate provisional non-cash deferred income tax expense of $4.5 million for the estimated U.S. state and foreign income tax and withholding tax liability attributable to all of such previously-considered permanently reinvested undistributed earnings.  Kronos is currently reviewing certain other provisions under the 2017 Tax Act that would impact its determination of the aggregate temporary differences attributable to its investment in its non-U.S. subsidiaries.  Kronos continues to assert indefinite reinvestment as it relates to its outside basis differences attributable to its investments in its non-U.S. subsidiaries, other than post-1986 undistributed earnings of its European subsidiaries and all undistributed earnings of its Canadian subsidiary. It is possible that a change in facts and circumstances, such as a change in the expectation regarding future dispositions or acquisitions or a change in tax law, could result in a conclusion that some or all of such investments are no longer permanently reinvested.  

Certain U.S. deferred tax attributes of one of Kronos’ non-U.S. subsidiaries, which subsidiary is treated as a dual resident for U.S. income tax purposes, were subject to various limitations.  As a result, Kronos had previously concluded that a deferred income tax asset valuation allowance was required to be recognized with respect to such subsidiary’s U.S. net deferred income tax asset because such assets did not meet the more-likely-than-not recognition criteria primarily due to (i) the various limitations regarding use of such attributes due to the dual residency; (ii) the dual resident subsidiary had a history of losses and absent distributions from Kronos’ non-U.S. subsidiaries, which were previously not determinable, such subsidiary was expected to continue to generate losses; and (iii) a limited NOL carryforward period for U.S. tax purposes.  Because Kronos had concluded the likelihood of realization of such subsidiary’s net deferred income tax asset was remote, Kronos had not previously disclosed such valuation allowance or the associated amount of the subsidiary’s net deferred income tax assets (exclusive of such valuation allowance).  Primarily due to changes enacted under the 2017 Tax Act, Kronos has concluded it now has sufficient positive evidence under the more-likely-than-not recognition criteria to support reversal of the entire valuation allowance related to such subsidiary’s net deferred income tax asset, which evidence included, among other things, (i) the inclusion under the Transition Tax provisions of significant earnings for U.S. income tax purposes which significantly and positively impacts the ability of such deferred tax attributes to be utilized by Kronos; (ii) the indefinite carryforward period for U.S. net operating losses incurred after December 31, 2017; (iii) an expectation of continued future profitability for U.S. operations; and (iv) a positive taxable income basket for U.S. tax purposes in excess of the U.S. deferred tax asset related to the U.S. attributes of such subsidiary.  Accordingly, in the fourth quarter Kronos recognized an $18.7 million non-cash deferred income tax benefit as a result of the reversal of such valuation allowance.

None of our or Kronos’ U.S. and non-U.S. tax returns are currently under examination. As a result of prior audits in certain jurisdictions which are now settled, in 2008 Kronos filed Advance Pricing Agreement Requests with the tax authorities in the U.S., Canada and Germany.  These requests have been under review with the respective tax authorities since 2008 and prior to 2016, it was uncertain whether an agreement would be reached between the tax authorities and whether Kronos would agree to execute and finalize such agreements.  

 

 

During 2016, Contran, as the ultimate parent of our U.S. Consolidated income tax group, executed and finalized an Advance Pricing Agreement with the U.S. Internal Revenue Service and Kronos’ Canadian subsidiary executed and finalized an Advance Pricing Agreement with the Competent Authority for Canada (collectively, the “U.S.-Canada APA”) effective for tax years 2005 - 2015.  Pursuant to the terms of the U.S.-Canada APA, the U.S. and Canadian tax authorities agreed to certain prior year changes to taxable income of our U.S. and Canadian subsidiaries.  As a result of such agreed-upon changes, Kronos recognized a $3.4 million current U.S. income tax benefit in 2016.  In addition, Kronos’ Canadian subsidiary incurred a cash income tax payment of approximately CAD $3 million (USD $2.3 million) related to the U.S.-Canada APA, but such payment was fully offset by previously provided accruals, and such income tax was paid in the third quarter of 2017.  

 

During the third quarter of 2017, Kronos’ Canadian subsidiary executed and finalized an Advance Pricing Agreement with the Competent Authority for Canada (the “Canada-Germany APA”) effective for tax years 2005 - 2017.  Pursuant to the terms of the Canada-Germany APA, the Canadian and German tax authorities agreed to certain prior year changes to taxable income of our Canadian and German subsidiaries.  As a result of such agreed-upon changes, Kronos reversed a significant portion of its reserve for uncertain tax positions and recognized a non-cash income tax benefit of $8.6 million related to such reversal ($8.1 million recognized in the third quarter of 2017).  In addition, Kronos recognized a $2.6 million non-cash income tax benefit related to an increase in its German NOLs and a $.6 million German cash tax refund related to the Canada-Germany APA in the third quarter of 2017.