Edited version of private advice

Authorisation Number: 1052224425274

Date of advice: 20 February 2024

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)?

Answer

Yes.

This ruling applies for the following period:

Year ended 20XX

The scheme commences on:

I July 20XX

Relevant facts and circumstances

1.   The company was incorporated on Date X. Its equity interests are not listed for quotation in the official list of any stock exchange.

2.   In the previous income year, the company had expenses of $X and assessable income of $X.

3.   The company is developing a product and information that details its development was provided.

4.   The company is developing new technology in its addressable market.

5.   In a ruling for a previous period the company qualified as and ESIC at relevant test time. The basis for the decision was that the company satisfied the principles based test in respect of the innovation being developed.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subdivision 360-A

Income Tax Assessment Act 1997 Section 360-40

Reasons for decision

All legislative references are to the ITAA 1997 unless otherwise indicated.

Question

Does the company meet the criteria of an Early Stage Innovation Company (ESIC) under subsection 360-40(1)?

Summary

The company meets the eligibility requirements of an ESIC under subsection 360-40(1).

Detailed reasoning

1.   Subsection 360-40(1) outlines the criteria required for a company to qualify as an 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 3 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 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 3 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.

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

10. To satisfy the principles-based test, the company must meet 5 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 5 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...[1]

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. 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. 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]

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. '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

21. 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

22. The company must be able to demonstrate that it has the potential to successfully scale up the business. The company must have operating leverage, whereas 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

23. 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

24. 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)

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

26. 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

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 20XX-20XX.

Current year

28. For the purposes of subsection 360-40(1), the current year will be 20XX-20XX. For clarity, in relation to particular requirements within subsection 360-40(1), the income year before the current year will be 20XX-20XX.

Early stage test

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

29. As the company was incorporated within the last 3 income years, the requirement in subparagraph

30. 360-40(1)(a)(i) is satisfied.

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

31. As the company had expenses of $1 million of less in the prior income year, the requirement in paragraph 360-40(1)(b) is satisfied.

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

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

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

33. As the company is not listed on any stock exchange in Australia or a foreign country, the requirement in paragraph 360-40(1)(d) is satisfied.

Conclusion on early stage test

34. The company will satisfy the early stage test for the entire 20XX-20XX, 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 for commercialisation - subparagraph 360-40(1)(e)(i)

35. According to the company its product will be the first of its kind available in its selected market.

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

36. The company is testing the prototype and will soon move to production.

37. Details of the commercialisation strategy were provided.

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

38. The company is genuinely focussed on developing its product for a commercial purpose. The product will be a new product when compared to what is currently available in the target market.

39. Therefore, the requirement in subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 20XX until 30 June 20XX. Once the product has been fully developed and moves into production, the Company will no longer be 'developing' it for commercialisation and the requirement in subparagraph 360-40((1)(e)(i) will no longer be satisfied.

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

40. The company provided details of its predicted growth and based on that information the requirement in subparagraph 360-40(1)(e)(ii) will be satisfied.

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

41. The company's business model provided illustrates the increased income. The information provided also shows that the company has the potential to successfully scale up its business. Therefore, the requirement in subparagraph 360-40(1)(e)(iii) will be satisfied.

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

42. The company has demonstrated the potential to address a broader market than just the local market. Therefore, the requirement in subparagraph 360-40(1)(e)(iv) will be satisfied.

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

43. The company has the first mover advantage and has demonstrated the potential for it to have competitive advantages within the target market, satisfying the requirement in subparagraph 360-40(1)(e)(v).

Conclusion on principles test

44. 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.

Foreign Company Test

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

Conclusion

46. 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 or the date when 'The Innovation' has been fully developed and is ready for sale, whichever occurs earlier.

[1] See EM, paragraph 1.76.

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