Edited version of your written advice

Authorisation Number: 1051431243434

Date of advice: 19 September 2018

Ruling

Subject: Early Stage Innovation Company

Question

Does the Company meet the criteria of an Early Stage Innovation Company (ESIC) under subsection 360-40(1) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 2019

The scheme commences on:

1 July 2018

Relevant facts and circumstances

1. The Company was incorporated in Australia in October 2017. Its equity interests are not listed for quotation in the official list of any stock exchange.

2. The Company has no subsidiaries and in the year ended 30 June 2018 had expenses less than $1 million and assessable income less than $200,000.

3. The Company is developing a digital platform to allow an industry to participate in the sharing economy. The Company’s digital platform is a website

4. The core focus of the digital platform provides a solution to the current lack of a market within the industry.

5. The Company owns all intellectual property related to the development of the website.

6. The digital platform is still in the development phase, with an expected ‘soft-launch’ date in 2019. The initial website to be released to the public will be tested by customers for a number of months as they provide feedback as part of the Company’s projected future development roadmap.

7. While competitors offer similar features they are generally limited in their offering as they only focus one or two aspects. However, the Company introduces the sharing economy concept (which no other competitor is currently offering).

8. The Company has engaged an external development team in Australia to develop the digital platform to ensure the User Interface (UI) and User Experience (UE) is effective. This will ensure a user-friendly platform to help prospective customers transition onto the digital platform.

9. The Company owns the intellectual property developed upon payment of each milestone.

10. Primarily, through market research the Company has chosen to develop the digital platform as a website and mobile friendly website as opposed to a mobile application (app). The reasoning behind this was an app was far more costly and the cost benefit analysis shows a mobile friendly website will be just as effective (for those requiring a mobile version) during the early stages. Upon development and market testing the Company will determine when and if an app should be developed.

11. The Company is seeking external investment to cover the significantly high costs associated with fully developing, commercialising and marketing the website. The Company’s commercialisation timeline is heavily dependent on its marketing and sales strategy, and this is the major reason the Company is seeking additional investment.

12. The Company is aiming to penetrate the Australian market across the next 2-3 years, with the intention to expand over the next 3-8 year across America and Europe.

13. Only minor software and regulatory modifications will be required to use the platform in different countries caused by the sharing economy” and the newly introduced General Data Protection Regulation (“GDPR”) for European customers.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subdivision 360-A

Income Tax Assessment Act 1997 section 360-40

Income Tax Assessment Act 1997 section 360-45

Reasons for decision

All legislative references are to the ITAA 1997 unless otherwise indicated.

Summary

The Company meets the eligibility requirements of, an ESIC under, subsection 360-40(1).

Detailed reasoning

Qualifying Early Stage Innovation Company

1. Subsection 360-40(1) outlines the criteria required for a company to qualify as an Early Stage Innovation Company (ESIC) at a particular time in an income year. This time is referred to as the test time. The criteria are based on a series of tests to identify if the company is at an early stage of its development and it is developing new or significantly improved innovations to generate an economic return.

‘The early stage test’

2. The early stage test requirements are outlined in detail within paragraphs 360-40(1)(a) to (d).

Incorporation or Registration – paragraph 360-40(1)(a)

3. To meet the requirement in paragraph 360-40(1)(a), at a particular time (the test time) in an income year (the current year) the company must have been either:

i. incorporated in Australia within the last three income years (the latest being the current year); or

ii. incorporated in Australia within the last six income years (the latest being the current year), and across the last three of those income years the company and its 100% subsidiaries incurred total expenses of $1 million or less; or

iii. registered in the Australian Business Register (ABR) within the last three income years (the latest being the current year).

4. The term ‘current year’ is defined in subsection 360-40(1) with reference to the ‘test time’; the ‘current year’ being the income year in which the company issues shares to the investor.

5. A company that does not meet any of these conditions will not qualify as an ESIC.

Total expenses - paragraph 360-40(1)(b)

6. To meet the requirement in paragraph 360-40(1)(b), the company and its 100% subsidiaries must have incurred total expenses of $1 million or less in the income year before the current year.

Assessable income - paragraph 360-40(1)(c)

7. To meet the requirement in paragraph 360-40(1)(c), the company and its 100% subsidiaries must have derived total assessable income of $200,000 or less in the income year before the current year.

No stock exchange listing - paragraph 360-40(1)(d)

8. To meet the requirement in paragraph 360-40(1)(d), the company must not be listed on any stock exchange in Australia or a foreign country.

Innovation tests

9. If the company satisfies the early stage test, the company must also satisfy one of two innovation tests: the objective (100 point) test or the principles-based test. The Company has applied for this ruling on the basis that it meets the principles-based test.

‘Principles-based test’ – subparagraphs 360-40(1)(e)(i) to (iv)

10. To satisfy the principles-based test, the company must meet five requirements in paragraph 360-40(1)(e). This is tested at a time immediately after the relevant new shares are issued to the investor.

11. The company can demonstrate that it meets each requirement through existing documentation such as a business plan, commercialisation strategy, competition analysis or other company documents. The company must be able to show that tangible steps have been or will be taken in relation to each of the requirements.

12. The five requirements of the principles-based test, as outlined in paragraph 360-40(1)(e) are:

i. the company must be genuinely focused on developing one or more new or significantly improved innovations for commercialisation

ii. the business relating to that innovation must have a high growth potential

iii. the company must demonstrate that it has the potential to be able to successfully scale up the business relating to the innovation

iv. the company must demonstrate that it has the potential to be able to address a broader than local market, including global markets, through that business, and

v. the company must demonstrate that it has the potential to be able to have competitive advantages for that business.

Developing new or significantly improved innovations for commercialisation

13. For the purposes of Subdivision 360-A, the Explanatory Memorandum to the Tax Laws Amendment (Tax Incentives for Innovation) Bill 2016 (‘EM’) provides the following at paragraph 1.76 in relation to the definition of innovation:

“Implicit in the definition of innovation is the requirement that the company is developing a new or significantly improved type of innovation such as a product, process, service, marketing or organisational method. This list of various types of innovations provides flexibility for innovation companies and is adaptable to current and future innovations. The Oslo Manual, published by the Organisation for Economic Co-operation and Development (OECD) provides a description of these different types of innovations…”¹

14. The innovation being developed by the company must either be new or significantly improved for an applicable addressable market. The company’s addressable market is the revenue opportunity or market demand arising from the innovation or the related business. The addressable market must be objective and realistic.

15. Improvements must be significant in nature to meet this requirement. Significant is defined in the online Macquarie Dictionary as “important; of consequence.” Customising existing products or minor changes resulting from software updates, pricing strategies or seasonal changes are examples of improvements that would not be considered significant.

16. The OECD Oslo Manual defines innovations as significant changes, with the intention of distinguishing significant changes from routine minor changes. An innovation can also consist of a series of smaller incremental changes that together constitute a significant change.²

17. In discussing services innovation activity, paragraph 111 of the OECD Oslo Manual states,

“Innovation activity in services also tends to be a continuous process, consisting of a series of incremental changes in products and processes. This may occasionally complicate the identification of innovations in services in terms of single events, i.e. as the implementation of a significant change in products, processes or other methods.”

18. The OECD Oslo Manual, in relation to defining innovative services, states at paragraph 161 that “innovations in services can include significant improvements in how they are provided (for example, in terms of their efficiency or speed), the addition of new functions or characteristics to existing services, or the introduction of entirely new services.”

19. The company must be genuinely focused on developing the innovation for a commercial purpose in order to generate economic value and revenue for the company. This requirement draws the distinction between simply having an idea and commercialising an idea.

20. The EM does not define the meaning of the term ‘genuinely focussed’ within the context of subparagraph 360-40(1)(e)(i). Genuine is defined in the online Macquarie Dictionary as “Being truly such; real; authentic.” Focus is defined as “3. a central point, as of attraction, attention, or activity. … 8. to concentrate; to focus one's attention.” In essence, the phrase “genuinely focussed” is looking to what the company is truly concentrating and focussing their attention on or, put another way, what is the real central point of the company’s activities.

21. For a company to qualify as an ESIC under the principles based test, the company must be “genuinely focussed on developing for commercialisation” their innovation. That is, the central activities of the company must be truly concentrated on developing their innovation for a commercial purpose. ‘Commercialisation’ includes a range of activities that involve the implementation or sale of a new or significantly improved innovation that will directly lead to the generation of economic value for the company.

22. ‘Commercialisation’ is discussed further at paragraph 1.81 in the EM which states “Commercialisation encompasses a spectrum of activities including those leading to the sale of new or significantly improved product, process or service as well as activities involving the implementation of a new, or significantly improved, process or method, where the process or method directly leads to the generation of economic value for the company.”

High growth potential

23. The company must be able to demonstrate that the business relating to the innovation has a high growth potential within a broad addressable market. This refers to the company’s ability to rapidly expand its business. Companies that are limited to supplying local customers will not meet this requirement.

Scalability

24. The company must be able to demonstrate that it has the potential to successfully scale up the business relating to the innovation. The company must have operating leverage, where as it increases its market share or enters into new markets, its existing revenues can be multiplied with a reduced or minimal increase in operating costs.

Broader than local market

25. The company must be able to demonstrate that it has the potential to address a market that is broader than a local city, area or region. The company does not need to have a serviceable market at a national, multinational or global scale at the test time. However, it does need to show that the business is capable of addressing a market that is broader than a local market and that the business can be adapted to a broader scale in the future.

Competitive advantages

26. The company must be able to demonstrate that it has the potential to have competitive advantages, such as a cost or differential advantage over its competitors which are sustainable for the business as it expands. The company can analyse what competitors in the market offer, and consider whether the company has a differentiating advantage that would allow it to outperform these competitors.

Application to your circumstances

Test time

27. For the purposes of this ruling, the test time for determining if the Company is a qualifying ESIC will be a particular date during the income year ending 30 June 2019.

Current year

28. For the purposes of subsection 360-40(1), the current year will be the year ended 30 June 2019 (the 2019 income year). For clarity, in relation to particular requirements within subsection 360-40(1), the last three income years will include the years ended 30 June 2019, 2018 and 2017, and the income year before the current year will be the year ended 30 June 2018 (the 2018 income year).

Early stage test

Incorporation or Registration – paragraph 360-40(1)(a)

29. As the Company was incorporated in October 2017, which is within the last 3 income years, subparagraph 360-40(1)(a)(i) is satisfied.

Total expenses – paragraph 360-40(1)(b)

30. As the Company had expenses less than $1 million in the prior income year, paragraph 360-40(1)(b) is satisfied.

Assessable income – paragraph 360-40(1)(c)

31. As the Company had assessable income for the prior income year less than $200,000, paragraph 360-40(1)(c) is satisfied.

No stock exchange listing – paragraph 360-40(1)(d)

32. As the Company is privately owned and is not listed on any stock exchange in Australia or a foreign country, subparagraph 360-40(1)(d) is satisfied.

Conclusion on early stage test

33. The Company will satisfy the early stage test for the entire 2019 income year, as each of the requirements within paragraphs 360-40(1)(a) to (d) have been satisfied.

Principles based test

Developing new or significantly improved innovations for commercialisation – subparagraph 360-40(1)(e)(i)

34. The Company is developing digital platform.

35. The platform can be thought of as introducing the sharing economy to a new industry.

36. It allows owners of an asset within the industry to monetise their asset.

37. The platform is the first to bring the sharing economy to the industry.

38. The Company’s digital platform is considered an innovation.

Genuinely focussed on developing for commercialisation – subparagraph 360-40(1)(e)(i)

39. The Company has engaged an external development team in Australia to develop the digital platform to ensure the UI and UE is effective. The Company owns the intellectual property developed upon payment of each milestone.

40. The Company has chosen to develop the digital platform as a website and mobile friendly website as opposed to an app since a cost benefit analysis shows a mobile friendly website will be just as effective during the early stages. Upon development and market testing the Company will determine when and if an app should be developed.

41. The digital platform is still in the development phase, with an expected ‘soft-launch’ date in 2019. The initial website to be released to the public will be tested by customers for a number of months as they provide feedback as part of the projected future development roadmap.

42. The Company is seeking external investment to cover the significantly high costs associated with fully developing, commercialising and marketing the website. The Company’s commercialisation timeline is heavily dependent on its marketing and sales strategy, and this is the major reason the Company is seeking additional investment.

43. The Company is aiming to penetrate the Australian market across the next 2-3 years, with the intention to expand over the next 3-8 year across America and Europe.

44. Based on the above, the Company is clearly genuinely focussed on developing its innovation for commercial purposes. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 2018 until 30 June 2019 or the date when its innovation has been fully developed and commercialised, whichever occurs earliest.

45. Once the platform has been fully developed and commercialised, the Company will no longer be ‘developing’ the platform for commercialisation and subparagraph 360-40((1)(e)(i) will no longer be satisfied.

Conclusion on subparagraph 360-40(1)(e)(i)

46. The Company is genuinely focussed on developing its digital platform for a commercial purpose. The product/service is clearly an innovation compared to existing products.

47. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 2018 until 30 June 2019 or the date when its innovation has been fully developed and commercialised, whichever occurs earliest.

High growth potential – subparagraph 360-40(1)(e)(ii)

48. The immediate addressable market for the Company is in Australia. The Company is aiming to penetrate the Australian market across the next 2-3 years, with the intention to expand over the next 3-8 year across America and Europe.

49. The Company’s co-founders have extensive experience and relationships within the market in Australia which they can leverage to capitalise on growth opportunities. Furthermore there is capacity to capitalise on the experience from strategic partnerships with brands and benefit from the support from its experienced business advisors.

50. The Company can demonstrate a high growth potential exists for the product. Subparagraph 360-40(1)(e)(ii) is satisfied.

Scalability – subparagraph 360-40(1)(e)(iii)

1. As the Company’s platform is a user interface it is not impacted by factors such as manufacturing capability or size of premises. Ongoing costs would not be expected to increase in a linear fashion alongside its increase in market penetration. As the number of users increases, growth can be leveraged against already developed IT services.

2. Only minor software and regulatory modifications will be required to use the platform in different countries caused by the sharing economy” and the newly introduced General Data Protection Regulation (“GDPR”) for European customers.

3. As a website platform, the Company can demonstrate the potential to successfully scale up its business. Therefore, subparagraph 360-40(1)(e)(iii) will be satisfied.

Broader than local market- subparagraph 360-40(1)(e)(iv)

4. The Company has designed the digital platform to address the international market and to ultimately be used as a global digital platform. Once fully developed and validated by the market the Company anticipates the digital platform will be available across major international markets and have the functionality, capability and capacity to service both the demand and supply side in global markets.

51. In short, subparagraph 360-40(1)(e)(iv) will be satisfied.

Competitive advantages – subparagraph 360-40(1)(e)(v)

52. While competitors offer similar features they are generally limited in their offering as they only focus one or two aspects. However, the Company brings together a number of services needed in the community into one place.

53. In addition, the Company introduces the sharing economy concept into the industry. By implementing the sharing economy concept, the Company presents asset owners with an opportunity to generate revenue. On this basis, the Company has the ‘first mover advantage’ with its platform.

54. The Company owns all intellectual property related to the development of the website. As such it will retain its first mover advantage.

55. The Company has demonstrated the potential for its platform to have competitive advantages, satisfying subparagraph 360-40(1)(e)(v).

Conclusion on principles test

56. The Company satisfies the principles based test as it satisfies the requirements within subparagraphs 360-40(1)(e)(i)to(v) for the period commencing 1 July 2018 until 30 June 2019 or the date when its platform has been fully developed and commercialised, whichever occurs earlier.

Conclusion

57. The Company meets the eligibility criteria of an ESIC under section 360-40 for the period commencing 1 July 2018 until the earlier of 30 June 2019 or the date when its platform has been fully developed and commercialised, whichever occurs earlier.

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