Edited version of private advice

Authorisation Number: 1052108147942

Date of advice: 14 April 2023

Ruling

Subject: Early stage innovation company qualification

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 period:

30 June 20xx

The scheme commenced on:

1 July 20xx

Relevant facts and circumstances

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

2.         The Company has no subsidiaries and had expenses of less than $X million in the previous income year. It has not yet generated any assessable income.

3.         The Company has an Innovation.

4.         The Company is developing that Innovation.

5.         The Company has completed a successful trial of its Innovation and it is available for demonstration.

6.         The Company's intended market for its Innovation is global.

Relevant legislative provisions

Income Tax Assessment Act 1997

Subdivision 360-A

section 360-40

subsection 360-40(1)

paragraph 360-40(1)(a)

paragraph 360-40(1)(b)

paragraph 360-40(1)(c)

paragraph 360-40(1)(d)

subsection 360-45(1)

subparagraphs 360-40(1)(e)(i)

subparagraphs 360-40(1)(e)(ii)

subparagraphs 360-40(1)(e)(iii)

subparagraphs 360-40(1)(e)(iv)

subparagraphs 360-40(1)(e)(v)

paragraph 360-40(1)(f)

Reasons for decision

All legislative references are to the Income Tax Assessment Act 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 6 income years (the latest being the current year), and across the last 3 of those income years before the current year it and its *100% subsidiaries (if any) 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.

100-point innovation test - subsection 360-45(1)

10.      To qualify under the 100-point innovation test, the company must obtain at least 100 points by meeting certain objective innovation criteria. The criteria are listed in the table at subsection 360-45(1). This is tested immediately after the relevant shares are issued to the investor (the test time).

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

11.      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.

12.      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.

13.      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

14.      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]

15.      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.

16.      Improvements must be significant in nature to meet this requirement. 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.

17.      The OECD Oslo Manual defines innovations as significant changes, with the intention of distinguishing significant changes from routine minor changes. However, it is important to recognise that an innovation can also consist of a series of smaller incremental changes that together constitute a significant change.[2]

18.      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."

19.      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."

20.      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.

21.      '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.

High growth potential

22.      The company must be able to demonstrate that it has the potential for high growth 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

23.      The company must be able to demonstrate that it has the potential to successfully scale up the business. 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 per unit.

Broader than local market

24.      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

25.      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.

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

26.      At the test time, the company must not be a foreign company within the meaning of the Corporations Act 2001.

27.      The dictionary in section 9 of the Corporations Act 2001 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

28.      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

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

Early stage test

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

30.      As the Company was incorporated within the last 6 income years, subparagraph 360-40(1)(a)(ii) is satisfied if the incurred expenses for the last three income years before the current year is $1 million or less.

31.      For the two most recent income years, the Company expenditure was less than $1 million.

32.      The Company will satisfy subparagraph 360-40(1)(ii) until such time that its total expenditure in the current year exceeds an amount to bring its total to $1 million. Once the expenditure exceeds that amount, the Company will no longer satisfy the conditions of this paragraph.

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

33.      As the Company had expenses of $X million or less in the prior income year paragraph 360-40(1)(b) is satisfied.

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

34.      As the Company's assessable income in the prior income year is $200,000 or less paragraph 360-40(1)(c) is satisfied.

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

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

Conclusion on early stage test

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

100 point test

37.      The Company has not provided any evidence of satisfying the 100 point test under section 360-45 for the year. For the Company to be a qualifying ESIC it will need to satisfy the principles-based test.

Principles based test

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

38.      As far as the Company are aware, the Innovation will be the first product of its kind.

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

39.      The Company is genuinely focussed on developing the Innovation for a commercial purpose. The Innovation is a new concept as the Company do not believe there are any direct competitors in the world.

40.      Therefore subparagraph 360-40(1)(e)(i) will be satisfied until the end of the financial year or the date when the Innovation has been fully developed, whichever occurs earliest. Once the Innovation has been fully developed, the Company will no longer be 'developing' the product for commercialisation and subparagraph 360-40((1)(e)(i) will no longer be satisfied.

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

41.      The Company expects the Innovation to appeal to a wide range of businesses.

42.      Therefore subparagraph 360-40(1)(e)(ii) will be satisfied.

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

43.      As an Innovation, 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)

44.      The Company has demonstrated the Innovation has the potential to address a broader market than just the local market, including international markets. Therefore subparagraph 360-40(1)(e)(iv) will be satisfied.

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

45.      The Innovation has differentiating features which may give it a competitive advantage.

46.      The Company has demonstrated the potential for the technology to have competitive advantages within the 'addressable market' satisfying subparagraph 360-40(1)(e)(v).

Conclusion on principles test

47.      The Company satisfies the principles-based test as it satisfies the requirements within subparagraphs 360-40(1)(e)(i) to (v) for the financial year or the date when the Innovation has been fully developed and is ready for sale, whichever occurs earlier.

Foreign Company Test

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

Conclusion

49.      The Company meets the eligibility criteria of an ESIC under section 360-40 for the financial year or the date when the Innovation has been fully developed and is ready for sale, whichever occurs earlier.

[1] See Explanatory Memorandum to the Tax Laws Amendment (Tax Incentives for Innovation) Bill 2016, paragraph 1.76.

[2] OECD Oslo Manual, paragraph 124 and paragraph 151.