Edited version of your written advice

Authorisation Number: 1051465328206

Date of advice: 10 December 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 the 20XX income year. 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 20YY had expenses of less than $200,000 and no assessable income.

3. The Company is developing an app designed for the hospitality industry in an area of the market that has yet to be properly targeted.

4. The Company’s Director has intimate first-hand knowledge of relevant legislation, thus allowing the development of the app with this law in mind and key functionality created to assist businesses to comply with their legal requirements.

5. The Company is developing its software to ensure that appropriate standards are upheld with respect to legislation. The functionality does not take away the business’ responsibility but does help them manage their requirements.

6. The Company will be developing reporting which will aid businesses in capturing their compliance activities each month.

7. Additionally, the app will capture key sales data.

8. The app will launch in 20ZZ in an Australian State. Beyond this, there is critical development required over the ensuing 12 months such as reporting tools and data analytics.

9. The Company’s developer has signed a non-disclosure agreement (NDA) designed to protect the company’s intellectual property rights.

10. The Company’s offering can be rolled out nationwide. After launching in the relevant State in early 20ZZ it is expected to begin rolling out in other major markets. This will be assisted by affiliations and relationships that the Company directors have with key industry groups.

11. The Company has low overheads and with additional sales staff employed the profits climb exponentially.

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

12. 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’

13. 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)

14. 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).

15. 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.

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

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

17. 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)

18. 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)

19. 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

20. 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)

21. 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.

22. 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.

23. 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

24. 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…”

25. 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.

26. 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.

27. 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.

28. 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.”

29. 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.”

30. 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.

31. 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.

32. 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.

33. ‘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

34. 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

35. 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

36. 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

37. 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

38. 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 20ZZ.

Current year

39. For the purposes of subsection 360-40(1), the current year will be the year ended 30 June 20ZZ (the 20ZZ income year). For clarity, in relation to particular requirements within subsection 360-40(1), the income year before the current year will be the year ended 30 June 20YY (the 20YY income year).

Early stage test

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

40. 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)

41. 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)

42. 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)

43. 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

44. The Company will satisfy the early stage test for the entire 20ZZ 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)

45. The Company is developing an app designed for the hospitality industry.

46. The Company is developing its software to ensure that appropriate standards are upheld with respect to relevant legislation, allowing venues to adopt it without risking non-compliance.

47. There are currently a number of similar apps. The Company is the first of these to incorporate legislation into its functionality.

48. Additionally, the app is able to provide data analytics to venues that enable them to determine their adherence to laws.

49. Due to the Company’s incorporation of laws into the app, it is considered to be a significantly improved innovation in the marketplace.

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

50. The Company engaged a developer who utilised the app’s functional specifications to commence programming the app.

51. The Company will launch in 20ZZ in an Australian State. Beyond this, there is critical development required over the ensuing 12 months such as reporting tools and data analytics.

52. 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 20YY until 30 June 20ZZ.

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

53. The Company is genuinely focussed on developing its app for a commercial purpose. The product is clearly an innovation compared to existing products.

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

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

55. The Company’s offering can be rolled out nationwide. After launching in the Australian State in 20ZZ it is expected to begin rolling out in other markets. This will be assisted by affiliations and relationships that the Company directors have with key industry groups.

56. The app 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)

57. Since the product is an app 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, the Company’s growth can be leveraged against already developed software.

58. Only minor software and regulatory modifications will be required to use the Company in different states and indeed different countries.

59. Further, the Company has low overheads and with additional sales staff employed the profits would be expected to climb exponentially.

60. 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)

61. The Company is capable of addressing the national market. The app will be downloadable from the Apple Store and the Google Play store and will be accessible to anyone in Australia.

62. However it is also capable of being either licensed to overseas companies, or rolled out overseas by its Australian owners.

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

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

64. While competitors offer similar functions, the advantage of the Company’s app is that it incorporates relevant laws into its functionality. These laws are a barrier to entry for competitors not familiar with these laws.

65. Additionally, the business model is low cost for customers, since it relies on revenue from advertising and data analytics, rather than additional charges by the venue for using the app.

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

Conclusion on principles test

67. 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 20YY until 30 June 20ZZ.

Conclusion

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