Drive Shack Inc. Annual report pursuant to Section 13 and 15(d)

Annual report pursuant to Section 13 and 15(d)

INCOME TAXES

INCOME TAXES

12 Months Ended

Dec. 31, 2015

The provision for income taxes (including discontinued operations) consists of the following:



	Year Ended December 31,
	2015			2014			2013
Current:
Federal	$	298		$	704		$	2,170
State and Local	101			318			381
Total Current Provision	$	399		$	1,022		$	2,551

Deferred
Federal	$	(46	)	$	(1,293	)	$	(404	)
State and Local	(8		)	(632		)	(47		)
Total Deferred Provision	$	(54	)	$	(1,925	)	$	(451	)
Total Provision (benefit) for Income Taxes	$	345		$	(903	)	$	2,100
Provision (benefit) for income taxes from discontinued operations	$	—		$	(1,111	)	$	2,100
Provision (benefit) for income taxes from continuing operations	$	345		$	208		$	—

Newcastle is organized and conducts its operations to qualify as a REIT under the Code. A REIT will generally not be subject to U.S. federal corporate income tax on that portion of its net income that is distributed to stockholders if it distributes at least 90% of its REIT taxable income to its stockholders by prescribed dates and complies with various other requirements. A portion of this distribution requirement may be met through stock dividends rather than cash, subject to limitations based on the value of Newcastle’s stock.

Common stock distributions relating to 2015, 2014, and 2013 were taxable as follows:



				Ordinary		Long-term
	Dividends Per Share			Income		Capital Gain		Return of Capital
2015	$	0.60		30.41	%	69.59	%	0.00	%
2014	$	25.76	(A)	32.64	%	7.57	%	59.79	%
2013	$	44.28	(B)	33.91	%	0.00	%	66.09	%


(A)	Includes the distribution of New Media common stock valued at $5.34 per share and the distribution of New Senior common stock valued at $18.02 per share.


(B)	Includes the distribution of New Residential common stock valued at $41.34 per share.

During 2010 and 2009, Newcastle repurchased an aggregate of $787.8 million face amount of its outstanding CDO debt and junior subordinated notes at a discount and recorded $521.1 million of aggregate gain. The gain recorded upon such cancellation of indebtedness is characterized as ordinary income for tax purposes. In compliance with current tax laws, Newcastle has the ability to defer such ordinary income to future years and has deferred all or a portion of such gain for 2010 and 2009. However, cancellation of indebtedness income recognized on or after January 1, 2011 cannot be deferred and must generally be recognized as ordinary income in the year of such cancellation. During 2011, Newcastle repurchased $188.9 million face amount of its outstanding CDO debt and notes payable at a discount and recorded $81.1 million of gain for tax purposes, of which only $66.1 million gain relating to $171.8 million face amount of debt repurchased was recognized for GAAP purposes. During 2012, Newcastle repurchased $39.3 million face amount of Newcastle CDO debt and notes payable at a discount and recorded a $24.1 million gain on extinguishment of debt for GAAP, of which only $23.2 million of gain relating to $34.1 million face amount of debt repurchased was recognized for tax purposes. During 2013, Newcastle repurchased $35.9 million face amount of Newcastle CDO debt and notes payable at a discount and recorded a $4.6 million gain on extinguishment of debt for GAAP and tax purposes. During 2014, Newcastle did not repurchase any of the outstanding CDO debt and notes payable. During 2015, Newcastle repurchased $11.5 million face amount of Newcastle CDO debt and notes payable at a discount and recorded a $0.5 million gain on extinguishment of debt for GAAP and tax purposes.

In addition, Newcastle may recognize material ordinary income from the cancellation of debt within its non-recourse financing, and structures, including its subprime securitizations, while losses on the related collateral may be recognized as capital losses. Through December 31, 2015, $159.4 million of debt in Newcastle’s subprime securitizations has been cancelled as a result losses incurred on the underlying assets in the securitization trusts.

As of December 31, 2014, Newcastle had a loss carryforward, inclusive of net operating loss and capital loss, of approximately $644.1 million. The net operating loss carryforward and capital loss carryforward can generally be used to offset future ordinary taxable income and taxable capital gains, for up to 20 years and 5 years, respectively. The amounts of net operating loss carryforward and net long-term capital loss carryforward as of December 31, 2015 are subject to the finalization of the 2015 tax returns. The net operating loss carryforward and capital loss carryforward will begin to expire in 2029 and 2015, respectively.

Newcastle experienced an “ownership change” for purposes of Section 382 of the Code in January 2013. The provisions of Section 382 of the Code will impose an annual limit on the amount of net operating loss and net capital loss carryforwards that Newcastle can use to offset future taxable income. Such limitation may increase Newcastle’s dividend distribution requirement in the future. Newcastle does not believe that the limitation as a result of the ownership change will prevent it from satisfying the REIT distribution requirement for the current year and future years.

The Golf business is held through TRSs and, as such, is subject to regular corporate income taxes. At December 31, 2015, Newcastle’s TRSs had approximately $78.2 million of net operating loss carryforwards for federal and state income tax purposes which may be available to offset future taxable income, if any. These federal and state net operating loss carryforwards will begin to expire in 2018. A significant portion of these net operating losses are subject to the limitations of Code Section 382. This section provides substantial limitations on the availability of net operating losses to offset current taxable income if significant ownership changes have occurred for federal tax purposes.

Newcastle and its TRSs file income tax returns with the U.S. federal government and various state and local jurisdictions. Newcastle is no longer subject to tax examinations by tax authorities for years prior to 2012. Generally, Newcastle has assessed its tax positions for all open years, which includes 2012 to 2015, and concluded that there are no material uncertainties to be recognized. Newcastle does not believe that it is reasonably possible that the total amount of unrecognized tax benefits will significantly change within the next twelve months.

During the years ended December 31, 2015, 2014 and 2013, Newcastle’s TRSs recorded approximately $0.3 million, $(0.9) million and $2.1 million, respectively, of income tax expense (benefit). Generally, the Newcastle’s effective tax rate differs from the federal statutory rate as a result of state and local taxes and non-taxable REIT income.

The difference between Newcastle's reported provision for income taxes and the U.S. federal statutory rate of 35% is as follows:



	December 31,
	2015		2014		2013
Provision at the statutory rate	35.00	%	35.00	%	35.00	%
Non-taxable REIT income	(86.91	)%	(56.20	)%	(33.88	)%
Permanent items	31.24	%	—	%	—	%
State and local taxes	0.32	%	(1.18	)%	0.21	%
Valuation allowance (reversal)	22.04	%	21.70	%	(0.50	)%
Other	(0.04	)%	(1.80	)%	0.90	%
Total provision (benefit)	1.65	%	(2.48	)%	1.73	%

The tax effects of temporary differences that give rise to significant portions of the deferred tax assets as of December 31, 2015 and 2014 are presented below:



	December 31,
	2015			2014
Deferred tax assets:
Allowance for loan losses	$	399		$	366
Depreciation and amortization	33,495			13,938
Accrued expenses	2,008			2,006
Net operating losses	22,524			26,543
Other	—			2,365
Total deferred tax assets	58,426			45,218
Less valuation allowance	(42,158		)	(27,434		)
Net deferred tax assets	$	16,268		$	17,784
Deferred tax liabilities:
Leaseholds	15,366			17,741
Other	805			—
Total deferred tax liabilities	$	16,171		$	17,741
Net deferred tax assets (A)	$	97		$	43

(A) Recorded in receivables and other assets on the Consolidated Balance Sheets.

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 not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which temporary differences become deductible.

Newcastle had recorded a valuation allowance against a significant portion of its deferred tax assets as of December 31, 2015 as management does not believe that it is more likely than not that the deferred tax assets will be realized.

The following table summarizes the change in the deferred tax asset valuation allowance:



Valuation allowance at December 31, 2014	$	27,434
Current year income	14,724
Valuation allowance at December 31, 2015	$	42,158