Note 10 – Income Taxes

As discussed in "Note 1 – Summary of Significant Accounting Policies and Nature of Operations", the Company applies the current U.S. GAAP on accounting for uncertain tax positions, which prescribe 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 taxing authorities. The amount recognized is measured as the largest amount of benefit that has greater than 50 percent likelihood of being realized upon ultimate settlement. We consider many factors when evaluating and estimating our tax positions and tax benefits, which may require periodic adjustments and which may not accurately forecast actual outcomes. As of December 31, 2011, the Company had no material unrecognized tax benefits, interest or penalties related to federal and state income tax matters. The Company's policy is to record interest and penalties as income tax expense.

 

During fiscal 2010, the Company was audited by the Internal Revenue Service for the year ended December 31, 2008. The audit was concluded with no change. The tax years 2007-2010 remain open to examination by the major taxing jurisdictions to which the Company is subject, except the Internal Revenue Service for which the tax years 2009-2010 remain open. The Company does not anticipate a significant change to the amount of unrecognized tax benefits within the next twelve months.

The components of income (loss) before income taxes consist of the following:

 

		52 Weeks Ended January 2, 2010				52 Weeks Ended January 1, 2011				52 Weeks Ended December 31, 2011
		(in thousands)
Domestic operations		$	3,795			$	(2,540	)		$	(16,976	)
Foreign operations			645				832				327
Total income (loss) before income taxes		$	4,440			$	(1,708	)		$	(16,649	)

Income tax provision (benefit) for fiscal 2009, fiscal 2010 and fiscal 2011 consists of the following:

 

		52 Weeks Ended January 2, 2010				52 Weeks Ended January 1, 2011				52 Weeks Ended December 31, 2011
		(in thousands)
Current:
Federal tax		$	(774	)		$	(434	)		$	—
State tax			193				8				23
Foreign tax			56				73				4
Total current taxes			(525	)			(354	)			27
Deferred:
Federal tax			2,568				61				(5,516	)
State tax			1,080				13				(1,728	)
Foreign tax			—				—				—
Total deferred taxes			3,648				74				(7,244	)
Valuation allowance			—				12,498				5,705
Income tax provision (benefit), consolidated		$	3,123			$	12,218			$	(1,512	)

Income tax provision (benefit) differs from the amount that would result from applying the federal statutory rate as follows:

 

		52 Weeks Ended January 2, 2010				52 Weeks Ended January 1, 2011				52 Weeks Ended December 31, 2011
		(in thousands)
Income tax at U.S. federal statutory rate		$	1,511			$	(581	)		$	(5,661	)
Share-based compensation			1,086				(93	)			21
State income tax, net of federal tax effect			729				(759	)			(1,629	)
Tax exempt interest			(16	)			(8	)			(3	)
Foreign tax			(163	)			(210	)			(108	)
Non deductible acquisition costs			—				258				—
Other			(24	)			1				140
Change in valuation allowance			—				13,610				5,728
Effective tax provision (benefit)		$	3,123			$	12,218			$	(1,512	)

 

The Company's effective tax rate was impacted by income taxes incurred in foreign and state jurisdictions. With respect to the income of its foreign subsidiaries, the Company takes the position that the earnings of the foreign subsidiaries are permanently invested in that jurisdiction. Additionally, the foreign subsidiaries are currently in a cumulative deficit earnings and profits position for tax purposes. As a result, no additional income taxes have been provided on the possible repatriation of these earnings to the parent company. The favorable impact of foreign taxes is due in large part to a tax holiday in the Philippines, which was effective through September 2011. The Company is in the process of applying for a one year extension. Although management expects the extension to be approved based on its discussion with the foreign taxing authority, the full Philippines tax rate has been applied to the earnings after the expiration of the initial tax holiday. The impact of this tax holiday decreased foreign taxes by $136,000, $182,000 and $144,000 for fiscal 2009, fiscal 2010 and fiscal 2011, respectively. The benefit of the tax holiday on net income (loss) per share (diluted) was immaterial for the related years.

For fiscal 2009, fiscal 2010 and fiscal 2011, the effective tax rate for the Company was 70.33%, (715.28)% and 9.08%, respectively. The Company's effective tax rate for fiscal 2009 differs from the U.S. federal statutory rate primarily as a result of state income taxes and other non-deductible permanent differences including stock option forfeitures with a tax effected value of $1.1 million as described below. The Company's effective tax rate for fiscal 2010 differs from the U.S. federal statutory rate primarily as a result of the recording of a $13.6 million valuation allowance against the Company's deferred tax assets. The Company's effective tax rate for fiscal 2011 differs from the U.S. federal statutory rate primarily as a result of the recording of a $5.7 million valuation allowance against the Company's deferred tax assets. Additionally, the Company's fiscal 2011 tax benefit was substantially the result of a $5.1 million impairment loss on intangibles, as further discussed in "Note — 6 Goodwill and Intangibles".

Deferred tax assets and deferred tax liabilities at January 2, 2010, January 1, 2011 and December 31, 2011 consisted of the following:

 

		January 2, 2010				January 1, 2011				December 31, 2011
		(in thousands)
Deferred tax assets:
Inventory and inventory related reserve		$	642			$	1,712			$	1,591
Share-based compensation			2,109				3,218				4,017
Amortization			10,856				12,517				9,418
Sales and bad debt allowances			422				689				795
Vacation accrual			191				284				290
Other comprehensive income			33				34				9
Net operating loss and AMT credit carry-forwards			88				4,169				13,250
Other			257				322				65
Total deferred tax assets			14,598				22,945				29,435
Valuation Allowance			—				(18,335	)			(22,817	)
Net deferred tax assets			14,598				4,610				6,618
Deferred tax liabilities:
Tax over book depreciation			2,100				1,582				5,270
Tax over book amortization			—				5,289				2,226
Prepaid catalog expenses			—				426				272
Total deferred tax liabilities			2,100				7,297				7,768
Net deferred tax assets (liabilities)		$	12,498			$	(2,687	)		$	(1,150	)

At December 31, 2011, federal and state net operating loss ("NOL") carryforwards were $28.3 million and $42.2 million respectively. Federal NOL carryforwards of $2.7 million were acquired in the acquisition of WAG which are subject to Internal Revenue Code section 382 and limited to an annual usage limitation of $135,000. Additionally, a tax benefit of $0.9 million related to the federal and state NOL carryforwards which was created by the exercise of stock options will be credited to additional paid-in-capital once recognized. Federal NOL carryforwards expire in 2029 and 2030, while state NOL carryforwards begin to expire in 2016. The state NOL carryforwards expire in the respective tax years as follows:

 

2016 - 2022		$	36,025
2023 - 2031			6,200
		$	42,225

 

The valuation allowance for deferred tax assets recorded during fiscal 2010 and 2011 is based on a more likely than not threshold. The ability to realize deferred tax assets depends on the ability to generate sufficient taxable income within the carryback or carryforward periods provided for in the tax law for each applicable tax jurisdiction. We considered the following possible sources of taxable income when assessing the realization of deferred tax assets:

 

•

Future reversals of existing taxable temporary differences;

 

•

Future taxable income exclusive of reversing temporary differences and carryforwards;

 

•

Taxable income in prior carryback years; and

 

•

Tax-planning strategies.

The assessment regarding whether a valuation allowance is required or should be adjusted also considers, among other matters, the nature, frequency and severity of recent losses of the combined USAP and WAG operations, forecasts of future profitability, the duration of statutory carryforward periods, our experience with tax attributes expiring unused and tax planning alternatives. In making such judgments, significant weight is given to evidence that can be objectively verified.

Concluding that a valuation allowance is not required is difficult when there is significant negative evidence that is objective and verifiable, such as cumulative losses in recent years. Although we expect that the operations of the recently acquired WAG business and our ability to achieve future profitability of these operations was enhanced by the cost reductions that occurred as a result of the acquisition and subsequent integration efforts, WAG's historic operating results remain relevant as they are reflective of the industry and the effect of economic conditions. The fundamental businesses and inherent risks in which the WAG business operates did not change from those which existed prior to the acquisition. We utilized a three-year analysis of actual results as the primary measure of cumulative losses in recent years. However, because a substantial portion of those cumulative losses relate to impairment of intangible assets and goodwill, those three-year cumulative results are adjusted for the effect of these items. In addition, the near- and medium-term financial outlook is considered when assessing the need for a valuation allowance.

The valuation of deferred tax assets requires judgment and assessment of the future tax consequences of events that have been recorded in the financial statements or in the tax returns, and our future profitability represents our best estimate of those future events. Changes in our current estimates, due to unanticipated events or otherwise, could have a material effect on our financial condition and results of operations. Prior to the acquisition of WAG, the Company concluded that it was more likely than not that we would realize the deferred tax assets in all jurisdictions. However, with the acquisition of WAG in 2010, based largely on the weight of the combined cumulative three-year adjusted loss position, it was determined that it was not more likely than not that the Company would realize its net deferred tax assets as of January 1, 2011. Therefore, a valuation allowance of $18.3 million was recorded as of January 1, 2011, of which $4.7 million was recorded in relation to WAG in connection with our acquisition in August 2010. Based on the same determination, an additional valuation allowance of $5.7 million was recorded as of December 31, 2011, resulting in a valuation allowance balance of $22.8 million as of December 31, 2011.

If, in the future, we generate taxable income on a sustained basis in jurisdictions where we have recorded full valuation allowances, our conclusion regarding the need for full valuation allowances in these tax jurisdictions could change, resulting in the reversal of some or all of the valuation allowances. If our operations generate taxable income prior to reaching profitability on a sustained basis, we would reverse a portion of the valuation allowance related to the corresponding realized tax benefit for that period, without changing our conclusions on the need for a full valuation allowance against the remaining net deferred tax assets.

Included in accrued expenses are income taxes payable of $39,000, $95,000 and $93,000 for the fiscal years ended 2009, 2010 and 2011, respectively, consisting primarily of foreign taxes.