Edited version of your written advice

Authorisation Number: 1051462104533

Date of advice: 30 November 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 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The Company was incorporated in Australia in the 20XX income year. Its equity interests are not listed for quotation in the official list of any stock exchange.

The Company has no subsidiaries and in the year ended 30 June 20XX had expenses of less than $XXX and no assessable income.

The Company is developing a new medical platform technology, specifically designed to improve performance and reduce the risk of complications, in a wide range of applications.

The Company has a written agreement to commercialise the platform technology with the owner of the Intellectual Property (IP). The written agreement is an exclusive license, and gives the Company access and control over a portfolio of IP.

The medical technology, when developed, will reduce the risk of failure and revision surgery. As a platform technology, the technology can also be adapted to suit many other applications.

The Company has a structured plan to complete the development of the technology, with all the product development including testing required, and to create a data package to present to a target company for partnering or acquisition. The Company has initiated preliminary discussions with several leading multinational medical companies overseas.

The global market is estimated to be US$XXXX.

The Company provided an Investor Memorandum, Investor Presentation and Licence Agreement, all of which were referred to in this ruling.

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…”

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.

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 20XX.

Current year

28. For the purposes of subsection 360-40(1), the current year will be the year ended 30 June 20XX (the 20XX income year).

Early stage test

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

29. As the Company was incorporated in the 20XX income year, 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 – subparagraph 360-40(1)(e)(i)

34. The Company is developing a new medical platform technology.

35. The technology reduces the likelihood of revision surgery being required and where it is required, safer revision surgery.

36. The technology is considered to be significantly improved over other products available.

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

37. To satisfy this part of test, the Commissioner considers that a company must own the innovation in order to be developing it for commercialisation. In this instance, the Intellectual Property (IP) for the platform technology is owned by a third party.

38. The Company has a written agreement to commercialise the medical technology. The written agreement is to an exclusive license,

39. Since the Company has an exclusive licence, the Commissioner considers that it is genuinely focussed on developing the innovation for commercialisation.

40. Additionally, the Investor Memorandum sets out its plan to complete the development of the technology and to create a data package to present to a target company for partnering or acquisition.

41. Based on the above, the Company is clearly genuinely focussed on developing the innovation for commercial purposes. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 20XX until 30 June 20XX.

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

42. The Company is genuinely focussed on developing the medical platform technology for a commercial purpose. The product is clearly an innovation compared to existing products.

43. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 20XX until 30 June 20XX.

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

44. The global market is estimated to be US$XXXX and predicted to grow a compound annual growth rate of 7.2%.

45. The Company’s technology platform has the potential to access this market. It can reasonably demonstrate a high growth potential exists for the product. Subparagraph 360-40(1)(e)(ii) is satisfied.

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

46. The platform technology can be adapted to suit many different applications.

47. The adaptability and flexibility of the technology is indicative of a capacity to scale up the business. It is therefore accepted that the Company can demonstrate the potential to successfully scale up its business. Subparagraph 360-40(1)(e)(iii) is satisfied.

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

48. As stated above, the global market is estimated to be US$XXXX. The Company has already initiated discussions with several leading medical companies overseas.

49. In addition, the technology has had patents filed overseas.

50. In short, the market for the platform technology is broader than the local market. Subparagraph 360-40(1)(e)(iv) is satisfied.

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

51. While competitors offer similar products, the advantage of the Company’s technology is that it will firstly reduce the amount of revision surgeries required, while secondly allowing for safer surgery in instances where revision is required.

52. In addition, the technology has been protected by three application stage patent families

53. All prudent searches related to the intended application of the technology have been initiated and no relevant IP has been discovered elsewhere.

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

Conclusion on principles test

55. 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 20XX until 30 June 20XX.

Conclusion

56. The Company meets the eligibility criteria of an ESIC under section 360-40 for the period commencing 1 July 20XX until the earlier of 30 June 20XX.