Annual report pursuant to Section 13 and 15(d)

Income Tax

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

10. Income Tax

We recorded a tax expense of approximately $1 million, for the year ended December 31, 2017 and $0 million for the years ended December 31 2016 and 2015, related to the activities of our TRS. The federal income tax expense and benefits recorded were determined using a rate of 35% in each tax year. In measuring our deferred tax assets and liabilities we used the newly enacted federal rate established through the TCJA of 21%. Below is a reconciliation between the statutory rates as of December 31, 2017 and our effective tax rates for the years ended December 31:


         2017             2016             2015      

Federal statutory income tax rate

     35     35     35

Reduction in rate resulting from:


Share-based compensation

     (8 )%      (373 )%        

Equity method investments

     (83 )%      (847 )%      5


     6     9       

Valuation allowance

     49     1,176     (41 )% 

TCJA rate revaluation adjustment

     1              % 










Effective tax rate

     —              (1 )% 










We recorded a deferred tax liability of $1 million and $0 million as of December 31, 2017 and 2016, respectively, related to the activities of our TRS. Our deferred tax liability is included in accounts payable, accrued expenses and other on our consolidated balance sheet. Deferred income taxes represent the tax effect from continuing operations of the differences between the book and tax basis of assets and liabilities. As a result of the enactment of the TCJA, we measured our deferred tax assets and liabilities as of December 31, 2017, using the new federal 21% corporate rate and our applicable state rates. Deferred tax assets (liabilities) include the following as of December 31:


         2017              2016      
     (in millions)  

Receivables basis difference

   $ (8    $ (11

Equity method investments

     (22      (14







Gross deferred tax liabilities

     (30      (25







Net operating loss (NOL) carryforwards

     27        29  

Tax credit carryforwards

     10        —    

Share-based compensation

     3        3  

Valuation allowance

     (11      (7







Gross deferred tax assets

     29        25  







Net deferred tax liabilities

   $ (1 )    $ —    








We have unused NOLs of $115 million and tax credits of approximately $10 million that will begin to expire in 2034. If our TRS entities were to experience a change in control as defined in Section 382 of the Internal Revenue Code, the TRS’s ability to utilize NOL in the years after the change in control would be limited. Similar rules and limitation may apply for state tax purposes as well.

We have no examinations in progress, none are expected at this time, and years 2013 through 2016 are open. As of December 2017 and 2016, we had no uncertain tax positions. Our policy is to recognize interest expense and penalties related to income tax matters as a component of general and administrative expense. There were no accrued interest and penalties as of December 31, 2017 and 2016, and no interest and penalties were recognized during the years ended December 31, 2017, 2016, or 2015.

For federal income tax purposes, the cash dividends paid for the years ended December 31, 2017 and 2016 are characterized as follows:


         2017             2016      

Common distributions


Ordinary income

     15%       0%  

Return of capital

     85%       100%  






     100%     100%  







U.S. Federal Income Tax Legislation

The TCJA, which was signed into law on December 22, 2017, made significant changes to the U.S. federal income tax laws applicable to businesses and their owners, including REITs and their stockholders. Certain key provisions of the TCJA could impact us and our stockholders, beginning in 2018, including the following:


    Reduced tax rates - the highest individual U.S. federal income tax rate on ordinary income is reduced from 39.6% to 37% (through taxable years ending in 2025), and the maximum corporate income tax rate is reduced from 35% to 21%. In addition, individuals, trust, and estates that own our stock are permitted to deduct up to 20% of dividends received from us (other than dividends that are designated as capital gain dividends or qualified dividend income), generally resulting in an effective maximum U.S. federal income tax rate of 29.6% on such dividends (through taxable years ending in 2025). Further, the amount that we are required to withhold on distributions to non-U.S. stockholders that are treated as attributable to gains from our sale or exchange of U.S. real property interests is reduced from 35% to 21%.


    Net operating losses - we and our TRSs may not use net operating losses generated beginning in 2018 to offset more than 80% of our or our TRSs’ taxable income (prior to the application of the dividends paid deduction). Net operating losses generated beginning in 2018 can be carried forward indefinitely but can no longer be carried back.


    Limitation on interest deductions - the amount of net interest expense that certain taxpayers, including us and our TRSs, may deduct for a taxable year is limited to the sum of (i) the taxpayer’s business interest income for the taxable year, and (ii) 30% of the taxpayer’s “adjusted taxable income” for the taxable year. For taxable years beginning before January 1, 2022, adjusted taxable income means earnings before interest, taxes, depreciation, and amortization (“EBITDA”); for taxable years beginning on or after January 1, 2022, adjusted taxable income is limited to earnings before interest and taxes (“EBIT”).


    Alternative Minimum Tax - the corporate alternative minimum tax is eliminated.


    Income accrual - we and our TRSs are required to recognize certain items of income for U.S. federal income tax purposes no later than we would report such items on our financial statements. Earlier recognition of income for U.S. federal income tax purposes could impact our ability to satisfy the REIT distribution requirements. This provision generally applies to taxable years beginning after December 31, 2017, but will apply with respect to income from a debt instrument having “original issue discount” for U.S. federal income tax purposes only for taxable years beginning after December 31, 2018.


    Tax credits - the TCJA modifies the availability and the use by certain taxpayers of certain tax credits for investments in certain wind, solar, and other renewable energy assets.

In relation to the above amendments, the income and cash allocations received from our equity method investments in renewable energy projects are determined in part based on certain tax assumptions. As a result, certain of our partners’ allocations in these projects may be affected by the changes that may impact our income allocations determined under the HLBV method. Therefore, we consider allocations from these equity method investments to be provisional. Additionally, we have included a provision in our consolidated financial statements to estimate the impact of the TCJA, specifically including the impact of the change in rates on our deferred tax assets and liabilities. We continue to evaluate the impact of the TCJA and will finalize our assessment in 2018.