Income Taxes

For the three and nine months ended June 30, 2014 and 2013, our non-cash tax provision/benefit from continuing operations primarily related to a change in our prior year's recognized tax benefits.

In the normal course of business, we are subject to audits by federal and state tax authorities. Our federal income tax returns for fiscal years 2007 through 2010 were under Internal Revenue Service (IRS) appeal as of June 30, 2014. In July 2014, the Company received notification that the Joint Committee on Taxation had taken no exception to conclusions reached pursuant to our IRS appeal. As a result, the Company will receive approximately $26 million, plus interest, primarily related to one item which the Company is permitted to carry back to a pre-Section 382 limitation year. This appeal resolution will be recognized as a tax benefit during the quarter ended September 30, 2014.

Our federal income tax returns for fiscal years 2011 through 2012 and certain state income tax returns for various fiscal years are under routine examination. The statute of limitations for our major tax jurisdictions remains open for examination for fiscal years 2011 and subsequent years. The final outcome of these examinations are not yet determinable and therefore any additional change in our unrecognized tax benefits that could occur within the next 12 months cannot be estimated at this time.

As of June 30, 2014 and September 30, 2013, we had $2.8 million and $2.6 million of accrued interest and penalties related to our unrecognized tax benefits, respectively.

We experienced an “ownership change” as defined in Section 382 of the Internal Revenue Code (Section 382) as of January 12, 2010. Section 382 contains rules that limit the ability of a company that undergoes an “ownership change” to utilize its net operating loss carryforwards (NOLs) and certain built-in losses or deductions recognized during the five-year period after the ownership change to offset future taxable income. Therefore, our ability to utilize our pre-ownership change net operating loss carryforwards and recognize certain built-in losses or deductions is limited by Section 382 to an estimated maximum amount of approximately $11.4 million ($4 million tax-effected) annually. Certain deferred tax assets are not subject to any limitation imposed. Due to the Section 382 limitation and the maximum carryforward period of our NOLs, we will be unable to fully recognize certain deferred tax assets. As future economic conditions unfold, we will be able to confirm that certain deferred tax assets will not provide any future tax benefit. At such time, we will accordingly remove any deferred tax asset and corresponding valuation allowance.

Accordingly, a portion of our $543.4 million of total gross deferred tax assets related to accrued losses on our inventory may be unavailable due to the limitation imposed by Section 382. As of June 30, 2014, we estimate that between $10.2 million and $48.6 million may be unavailable due to our Section 382 limitation. As a result, upon the resumption of sustained profitability and reversal of our valuation allowance, between $440.5 million and $479.0 million of our net deferred tax assets may be available to us for the reduction of future cash taxes. The actual realization of our deferred tax assets is difficult to predict and will be dependent on future events.

Considering the limitation imposed by Section 382, the table below depicts the classifications of our deferred tax assets:



(In thousands)	June 30, 2014
Deferred tax assets:
Subject to annual limitation	$	102,207
Generally not subject to annual limitation	371,399
Certain components likely to be subject to annual limitation	69,779
Total deferred tax assets	543,385
Deferred tax liabilities	(54,257		)
Net deferred tax assets before valuation allowance	489,128
Valuation allowance	(483,648		)
Net deferred tax assets	$	5,480

Based upon an evaluation of all available evidence, we established a valuation allowance for substantially all of our deferred tax assets during fiscal 2008. As of June 30, 2014, we continued our evaluation of whether the valuation allowance against our deferred tax assets was still required. We considered positive evidence including evidence of recovery in the housing markets where we operate, the prospects of continued profitability and growth, a strong backlog and sufficient balance sheet liquidity to sustain and grow operations. Although the Company’s performance and current positioning is bringing it closer to a conclusion that a valuation allowance is no longer needed, further evidence of sustained profitability is needed to reverse our valuation allowance against our deferred tax assets. Therefore, based upon all available positive and negative evidence, we concluded a valuation allowance is still needed for substantially all of our gross deferred tax assets at June 30, 2014. The Company's deferred tax asset valuation allowance was $483.6 million and $487.3 million as of June 30, 2014 and September 30, 2013, respectively. In the fourth quarter of fiscal 2014, we expect to reduce the portion of our deferred tax asset and valuation allowance related to items settled in our IRS Appeal and for any taxable income related to our operating results. In future periods, we expect to reduce all or a portion of our valuation allowance, generating a non-cash tax benefit, if sufficient positive evidence is present indicating that more likely than not a portion or all of our deferred tax assets will be realized. Changes in existing tax laws could also affect actual tax results and the valuation of deferred tax assets over time.

In July 2013, the FASB issued ASU No. 2013-11, Presentation of an Unrecognized Tax Benefit When a Net Operating Loss Carryforward, a Similar Tax Loss, or a Tax Credit Carryforward Exists to provide guidance on the presentation of unrecognized tax benefits. ASU 2013-11 requires an entity to present an unrecognized tax benefit, or a portion of an unrecognized tax benefit, as a reduction to a deferred tax asset for a net operating loss carryforward, a similar tax loss, or a tax credit carryforward with certain limited exceptions. ASU 2013-11 is effective for annual reporting periods beginning on or after December 15, 2013 and interim periods within those annual periods with earlier adoption permitted. The Company anticipates adopting this guidance in the quarter ended September 30, 2014. The adoption of this guidance is not anticipated to have a material impact on our consolidated financial position, results of operations or cash flows.