12. Income Taxes

The components of income before income taxes are as follows (in millions):

 

		Year Ended December 31,
		2012				2011				2010
Domestic		$	172.3			$	143.9			$	69.5
Foreign			478.6				415.9				310.6
Total		$	650.9			$	559.8			$	380.1

 

Income taxes are as follows (in millions):

 

		Year Ended December 31,
		2012				2011				2010
Current:
Foreign		$	104.0			$	103.3			$	84.9
Federal			82.1				55.3				27.4
State			8.6				7.4				8.2
			194.7				166.0				120.5
Deferred:
Foreign			(6.3	)			(11.8	)			(3.2	)
Federal			(2.7	)			(8.7	)			(29.9	)
State			1.2				(0.7	)			(0.2	)
			(7.8	)			(21.2	)			(33.3	)
		$	186.9			$	144.8			$	87.2

The Company recognizes excess tax benefits associated with share-based compensation to shareholders’ equity only when realized. When assessing whether excess tax benefits relating to share-based compensation have been realized, the Company follows the with-and-without approach. Under this approach, excess tax benefits related to share-based compensation are not deemed to be realized until after the utilization of all other tax benefits available to the Company, which are also subject to applicable limitations. As of December 31, 2012 and 2011, the Company had $25.9 million and $20.6 million, respectively, of unrealized excess tax benefits. Of the $25.9 million of excess tax benefits at December 31, 2012, $17.7 million relates to foreign tax credits generated and carried forward on US federal income tax returns. If unused, tax credit carryforwards of $6.3 million will expire in 2020, $4.6 million will expire in 2021, and $6.8 million will expire in 2022.

Venezuela has experienced cumulative inflation of at least 100% during the three year period ended December 31, 2009. Therefore, as of January 1, 2010 the Bolivar is hyperinflationary for U.S. federal income tax purposes. As a result, because Herbalife Venezuela is considered a dual incorporated entity, it is now required to account for its operations using the Dollar Approximate Separate Transactions Method of accounting, or DASTM. The transitional impact of DASTM resulted in a deferred income tax benefit of approximately $14.5 million recorded during the first quarter of 2010 which is included within the Company’s consolidated statement of income for the year ended December 31, 2010. See Note 2, Basis of Presentation, for a further discussion on Herbalife Venezuela and Venezuela’s highly inflationary economy.

The significant categories of temporary differences that gave rise to deferred tax assets and liabilities are as follows (tax effected in millions):

 

		Year Ended December 31,
		2012				2011
Deferred income tax assets:
Accruals not currently deductible		$	48.0			$	46.4
Tax loss carry forwards of certain foreign subsidiaries			22.0				16.9
Depreciation/amortization			13.5				13.9
Deferred compensation plan			35.6				26.2
Deferred interest expense			186.9				151.3
Accrued vacation			4.6				4.0
Inventory reserve			6.4				4.2
Hyperinflationary adjustment			3.5				7.4
Other			8.6				11.3
Gross deferred income tax assets			329.1				281.6
Less: valuation allowance			(209.3	)			(168.1	)
Total deferred income tax assets		$	119.8			$	113.5
Deferred income tax liabilities:
Intangible assets		$	111.7			$	113.1
Unremitted foreign earnings			13.9				8.7
Other			4.5				4.7
Total deferred income tax liabilities		$	130.1			$	126.5
Total net deferred tax liabilities		$	(10.3	)		$	(13.0	)

 

Net operating loss carryforwards of subsidiaries for 2012 and 2011 were $22.0 million and $16.9 million, respectively. If unused, net operating losses and tax credits of $2.6 million will expire between 2013 and 2022 and $19.4 million can be carried forward indefinitely. Deferred interest carryforwards of subsidiaries for 2012 and 2011 were $186.9 million and $151.3 million, respectively, and can be carried forward indefinitely.

The Company recognizes valuation allowances on deferred tax assets reported if, based on the weight of the evidence it is more likely than not that some or all of the deferred tax assets will not be realized. As of December 31, 2012 and December 31, 2011 the Company held valuation allowances against net deferred tax assets of certain subsidiaries, primarily related to deferred interest expense carryforwards and net operating loss carryforwards, in the amount of $209.3 million and $168.1 million, respectively. The change in the Company’s valuation allowance during 2012 of $41.2 million was related to $40.2 million of net additions charged to income tax expense and $1.0 million of currency translation adjustments recognized within other comprehensive income. The change in the Company’s valuation allowance during 2011 of $29.5 million was related to $31.8 million of net additions charged to income tax expense, reduced by $2.3 million of currency translation adjustments recognized within other comprehensive income. The change in the Company’s valuation allowance during 2010 of $65.4 million was primarily related to net additions charged to income tax expense.

At December 31, 2012, the Company’s U.S. consolidated group had approximately $66.4 million of unremitted earnings that were permanently reinvested from certain foreign subsidiaries. In addition, at December 31, 2012, Herbalife Ltd. had approximately $1.6 billion of permanently reinvested unremitted earnings relating to its operating subsidiaries. Since these unremitted earnings have been permanently reinvested, deferred taxes were not provided on these unremitted earnings. Further, it is not practicable to determine the amount of unrecognized deferred taxes with respect to these unremitted earnings. If the Company were to remit these unremitted earnings then it would be subject to income tax on these remittances. Deferred taxes have been accrued for earnings that are not considered indefinitely reinvested. The deferred tax liability on the unremitted foreign earnings as of December 31, 2012 and 2011 was $13.9 million and $8.7 million, respectively.

The applicable statutory income tax rate in the Cayman Islands was zero for Herbalife Ltd. for the years being reported. For purposes of the reconciliation between the provision for income taxes at the statutory rate and the provision for income taxes at the effective tax rate, a notional 35% tax rate is applied as follows (in millions):

 

		Year Ended December 31,
		2012				2011				2010
		(In millions)
Tax expense at United States statutory rate		$	227.8			$	195.9			$	133.0
Increase (decrease) in tax resulting from:
Differences between U.S. and foreign tax rates on foreign income, including withholding taxes			(97.9	)			(78.1	)			(71.1	)
U.S. tax (benefit) on foreign income net of foreign tax credits			1.8				(8.8	)			(19.3	)
Increase (decrease) in valuation allowances			40.2				31.8				65.4
State taxes, net of federal benefit			7.3				5.2				5.9
Unrecognized tax benefits			6.6				1.1				(10.9	)
Venezuela DASTM hyperinflationary impact			—				—				(14.5	)
Other			1.1				(2.3	)			(1.3	)
Total		$	186.9			$	144.8			$	87.2

During the years ended December 31, 2012, 2011 and 2010, the Company benefited from the terms of a tax holiday in the People’s Republic of China. The tax holiday commenced on January 1, 2008 and concluded on December 31, 2012. Under the terms of the holiday, the Company was subject to an 11% tax rate in 2010, a 12% tax rate in 2011, and a 12.5% tax rate in 2012. The Company will be subject to the statutory tax rate of 25% in 2013.

As of December 31, 2012, the total amount of unrecognized tax benefits, including related interest and penalties was $47.1 million. If the total amount of unrecognized tax benefits was recognized, $38.2 million of unrecognized tax benefits, $5.7 million of interest and $1.7 million of penalties would impact the effective tax rate. As of December 31, 2011, the total amount of unrecognized tax benefits, including related interest and penalties was $39.0 million. If the total amount of unrecognized tax benefits was recognized, $32.1 million of unrecognized tax benefits, $5.5 million of interest and $1.1 million of penalties would impact the effective tax rate.

 

The Company accounts for the interest and penalties generated by tax contingencies as a component of income tax expense. During the year ended December 31, 2012, the Company recorded an increase in interest and penalty expense related to uncertain tax positions of $0.2 million and $0.6 million, respectively. During the year ended December 31, 2011, the Company recorded an increase in interest expense and a reversal of penalty expense related to uncertain tax positions of $0.1 million and $0.1 million, respectively. During the year ended December 31, 2010, the Company recorded a reversal of interest and penalty expense related to uncertain tax positions of $2.9 million. As of December 31, 2012, total amount of interest and penalties related to unrecognized tax benefits were $5.7 million and $1.7 million respectively. As of December 31, 2011, total amount of interest and penalties related to unrecognized tax benefits were $5.5 million and $1.1 million respectively.

The following changes occurred in the amount of unrecognized tax benefits during the years ended December 31, 2012, 2011, and 2010 (in millions):

 

		Year Ended December 31, 2012				Year Ended December 31, 2011				Year Ended December 31, 2010
Beginning balance of unrecognized tax benefits		$	32.4			$	31.6			$	39.3
Additions for current year tax positions			7.8				5.5				4.3
Additions for prior year tax positions			4.5				2.0				1.1
Reductions for prior year tax positions			(0.1	)			(0.9	)			(2.3	)
Reductions for audit settlements			(0.3	)			(0.7	)			(8.6	)
Reductions for the expiration of statutes of limitation			(4.9	)			(4.5	)			(2.4	)
Changes due to foreign currency translation adjustments			0.3				(0.6	)			0.2
Ending balance of unrecognized tax benefits (excluding interest and penalties)		$	39.7			$	32.4			$	31.6
Interest and penalties associated with unrecognized tax benefits			7.4				6.6				6.9
Ending balance of unrecognized tax benefits (including interest and penalties)		$	47.1			$	39.0			$	38.5

The amount of income taxes the Company pays is subject to ongoing audits by taxing jurisdictions around the world. The Company’s estimate of the potential outcome of any uncertain tax position is subject to management’s assessment of relevant risks, facts, and circumstances existing at that time. The Company believes that it has adequately provided for these matters. However, the Company’s future results may include favorable or unfavorable adjustments to its estimates in the period the audits are resolved, which may impact the Company’s effective tax rate. As of December 31, 2012, the Company’s tax filings are generally subject to examination in major tax jurisdictions for years ending on or after December 31, 2008.

The Company believes that it is reasonably possible that the amount of unrecognized tax benefits could decrease by up to approximately $27.9 million within the next twelve months. Of this possible decrease, $26.0 million would be due to the settlement of audits or resolution of administrative or judicial proceedings. The remaining possible decrease of $1.9 million would be due to the expiration of statute of limitations in various jurisdictions.