Edited version of private advice

Authorisation Number: 1052048642228

Date of advice: 10 February 2023

Ruling

Subject: Early stage innovation company eligibility

Question

Does Company A satisfy the criteria of an Early Stage Innovation Company (ESIC) pursuant to subsection 360-40(1) of the Income Tax Assessment Act 1997 ('ITAA 1997') for the relevant period?

Summary

Company A satisfies the criteria of an Early Stage Innovation Company (ESIC) pursuant to subsection 360-40(1) of the Income Tax Assessment Act 1997 ('ITAA 1997') for the relevant period?

This ruling applies for the following period:

Year ending 30 June 20YY

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

1.      Company A is an Australian public company which was incorporated in Australia on dd/mm/yyyy and registered in the Australian Business Register on dd/mm/yyyyy. Its equity interests are not listed for quotation in the official list of any stock exchange in Australia or overseas.

2.      Company A is not a foreign company pursuant to the Corporations Act 2001 (Cth).

3.      Company A is a holding company which is the head company of a tax consolidated group and has x wholly owned subsidiary companies - all of which are Australian private companies.

4.      Company A was incorporated in Australia within the last three income years (the latest being the current year - the year ending 30 June 20YY).

5.      Company A reported having incurred expenses (excluding depreciation and research & development expenses) of less than $1 million and having derived total assessable income of less than $200,000 in the year before the year ending 30 June 20YY.

6.      Company A has issued ordinary shares to various shareholders during the year ending 30 June 20YY.

7.      Company A is developing a product and processes, and information that details its development has been provided.

8.      In a ruling issued for previous periods, Company A qualified as an ESIC at relevant test times. The basis for the decision was that the company satisfied the early stage test and the principles based test in respect of the product and processes being developed.

9.      Since the ruling issued, Company A has continued to develop their product. They advise that there is still a period of development required before the product is fully developed.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subdivision 360-A

Income Tax Assessment Act 1997 section 360-15

Income Tax Assessment Act 1997 section 360-40

Income Tax Assessment Act 1997 section 360-45

Reasons for decision

SUMMARY

Company A meets the eligibility requirements of an ESIC pursuant to subsection 360-40(1).

DETAILED REASONING

Qualifying Early Stage Innovation Company

10.   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'

11.   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)

12.   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:

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

13.   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.

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

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

15.   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)

16.   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)

17.   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

18.   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.

'100 point test' - paragraph 360-40(1)(e) and section 360-45

19.   To satisfy the 100 point test the company must obtain at least 100 points by meeting the innovation criteria in the table within section 360-45. The criteria are tested at a time immediately after the relevant shares are issued. If a company satisfies this test it does not need to satisfy the principles-based test.

'Principles-based test' - subparagraphs 360-40(1)(e)(i) to (iv)

20.   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.

21.   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.

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

              i.        the company must be genuinely focussed on developing for commercialisation one or more new or significantly improved products, processes, services or marketing or organisational methods

             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.

Foreign Company test - paragraph 360-40(1)(f)

23.   At the test time, the company must not be a foreign company within the meaning of the Corporations Act 2001 (Cth).

24.   The dictionary in section 9 of the Corporations Act 2001 (Cth) defines a foreign company to mean:

(a) a body corporate that is incorporated in an external Territory, or outside Australia and the external Territories, and is not:

(i) a corporation sole; or

(ii) an exempt public authority; or

(b) an unincorporated body that:

(i) is formed in an external Territory or outside Australia and the external Territories; and

(ii) under the law of its place of formation, may sue or be sued, or may hold property in the name of its secretary or of an officer of the body duly appointed for that purpose; and

(iii) does not have its head office or principal place of business in Australia.

APPLICATION TO YOUR CIRCUMSTANCES

TEST TIME

25.   For the purposes of this ruling, the 'test time' for determining if Company A is a qualifying ESIC, will be upon the issue of qualifying shares on a particular date or dates on or after 1 XX 20XX, and on or before 30 YY 20YY.

Current year

26.   Therefore, for the purposes of subsection 360-40(1) ITAA 1997, the current year will be the year ending 30 June 20YY. For clarity, in relation to particular requirements within subsection 360-40(1), the last 3 income years will include the years ending 30 June 20YY, 20XX and 20WW, and the income year before the current year will be the year ending 30 June 20XX.

THE 'EARLY STAGE TEST' - paragraphs 360-40(1)(a) - (d) ITAA 1997

Incorporation or Registration - paragraph 360-40(1)(a) ITAA 1997

27.   Company A was registered in the ABR on dd/mm/yyyy, which is within the 3 income years of the last three income years (the latest being the current year).

28.   Therefore, Company A satisfies the requirement of subparagraph 360-40(1)(a)(iii).

Total expenses - paragraph 360-40(1)(b) ITAA 1997

29.   In applying the requirements of paragraph 360-40(1)(b), Company A and its 100% subsidiaries must have incurred total expenses of $1 million or less in the 20XX income year, being the income year before the current year.

30.   Company A and its 100% subsidiaries incurred expenses of less than $1 million in the 20XX income year. Therefore, paragraph 360-40(1)(b) is satisfied.

Assessable income - paragraph 360-40(1)(c) ITAA 1997

31.   In applying the requirements of paragraph 360-40(1)(c), Company A and its 100% subsidiaries must have derived total assessable income of $200,000 or less in the 20XX income year, being the income year before the current year.

32.   Company A and its 100% subsidiaries earned less than $200,000 total assessable income in the 20XX income year. Consequently, paragraph 360-40(1)(c) is satisfied.

No Stock Exchange listing - paragraph 360-40(1)(d) ITAA 1997

33.   In applying the requirements of paragraph 360-40(1)(d), Company A must not be listed on any Stock Exchange in Australia or a foreign country at the test time.

34.   Company A was not listed on any Stock Exchange in Australia or a foreign country at the test time/s, so paragraph 360-40(1)(d) is satisfied.

CONCLUSION FOR EARLY STAGE TEST

35.   Company A satisfies the early stage test for the 20YY income year, as each of the requirements within paragraphs 360-40(1)(a) to (d) have been satisfied.

THE '100 POINT TEST' - paragraph 360-40(1)(e) and section 360-45

36.   Company A has not provided sufficient evidence of satisfying the 100 point test under section 360-45 for the year ending 30 June 20YY. For Company A to be a qualifying ESIC, it will need to satisfy the principles-based test.

CONCLUSION FOR PRINCIPLES BASED TEST

37.   Company A satisfies the principles based test as it will satisfy the requirements within subparagraphs 360-40(1)(e)(i) to (v) for the period commencing 1 July 20XX until 30 June 20YY.

Foreign Company Test - subparagraph 360-40(1)(f) ITAA 1997

38.   As Company A was incorporated in Australia, it is not a Foreign Company and paragraph 360-40(1)(f) is satisfied.

CONCLUSION

Company A meets the eligibility criteria of an ESIC under section 360-40 for the period 1 July 20XX to 30 June 20YY.