Edited version of your written advice

Authorisation Number: 1051486431677

Date of advice: 22 February 2019

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:

1 July 2018 to 31 December 2018

The scheme commences on:

1 July 2018

Relevant facts and circumstances

1. The Company was incorporated in Australia in the 20XX income year. It has no subsidiaries and its equity interests are not listed for quotation in the official list of any stock exchange.

2. The Company has incurred expenses of less than $1 million from 1 July 20XX to 31 December 2018.

3. The Company derived assessable income less than $200,000 for the year ended 30 June 2018.

4. The Company is developing a software platform that empowers businesses to deliver decisions fast. The technology delivers multiple capabilities in one secure solution.

5. The information technology (IT) architecture is designed to be modular and serverless in order to scale quickly.

6. The Company has conducted trials with potential future enterprise clients and has received interest from a number of large, global enterprises with potential for significant revenues.

7. The technology is currently in use and being tested as a proof of concept. Active commercial discussions are being held with multiple enterprises and resellers.

8. Although the Company has already generated revenue it intends to further penetrate the market and scale the business in 2019. The raised funds will be invested into research and development with a view to fully commercialising the product.

9. The Company has identified a number of companies operating in markets in which it also serves. None of these were identified as direct competitors since their offerings do not cross over multiple markets in the way that the Company’s offering does.

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

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 (v)

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 period 1 July 2018 to 31 December 2018.

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 the 2016 income year, it does not satisfy subparagraphs 360-40(1)(a)(i) or (iii) as it was not incorporated in Australia or registered on the ABR within the last 3 income years.

30. The Company will need to satisfy the element in subparagraph 360-40(1)(a)(ii). This element is made up of two parts, being time of incorporation and expenses incurred across 3 years by the company and its 100% owned subsidiaries.

31. The Company satisfies the first requirement of subparagraph 360-40(1)(a)(ii), as it was incorporated in Australia within the last 6 income years.

32. The second requirement of subparagraph 360-40(1)(a)(ii) is that the Company must have incurred total expenses of $1 million or less across the last 3 income years. The relevant 3 income years in these circumstances are the years ending 30 June 2019, 2018 and 2017. These three years include the current year. However since this test is a ‘point in time’ test and the Company has requested a ruling as at 31 December 2018, the current year shall only include the period 1 July 2018 to 31 December 2018.

33. The total expenses incurred for the period 1 July 2016 to 31 December 2018 is less than $1 million. The Company satisfies subparagraph 360-40(1)(a)(ii).

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

34. 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)

35. 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)

36. 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

37. The Company will satisfy the early stage test for the period 1 July 2018 to 31 December 2018, 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)

38. The Company is developing a software platform that empowers businesses to deliver decisions fast.

39. The Company has identified a number of companies operating in markets in which it also serves. None of these were identified as direct competitors since their offerings do not integrate multiple applications.

40. The platform is a new offering that integrates various innovations to provide a unique service offering to multiple industries. It is considered to be a significantly improved innovation.

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

41. The Company’s technology is currently in use and being tested as a proof of concept. Active commercial discussions are being held with multiple enterprises and resellers.

42. Although the platform has entered the marketplace, it is in test phase and development remains ongoing. Further research and development is required to fully commercialise the product.

43. Based on the above, the Company is 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 2018 until 31 December 2018.

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

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

45. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 2018 until 31 December 2018.

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

46. According to its analysis there is a significant addressable market opportunity.

47. The technology platform has the potential to access these markets. The Company 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)

48. The IT architecture is globally scalable. It is designed to be serverless. Since the product is a technology platform it is not impacted by factors such as manufacturing capability or size of premises. The Company’s ongoing costs would not be expected to increase in a linear fashion alongside its increase in market penetration. As the number of client’s increases, The Company’s growth can be leveraged against already developed IT services.

49. As a software technology 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)

50. As stated above, there is a significant addressable market opportunity.

51. In addition, the technology is being tested as proof of concept, while being used locally. The Company has received interest from a number of large, global enterprises.

52. 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)

53. There are numerous companies in similar markets to The Company. They tend to focus on just one application that The Company offers.

54. The Company’s offering is different from its competitors in that it melds multiple applications.

55. In short, the Company has a first mover advantage in that it is offering integrated service offerings, reinforcing its advantage over competitors. 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 31 December 2018.

Conclusion

57. The Company meets the eligibility criteria of an ESIC under section 360-40 for the period commencing 1 July 2018 until 31 December 2018.