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Edited version of your written advice
Authorisation Number: 5010053244130
Date of advice: 19 October 2018
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
Year ending 30 June 20XX
The scheme commences on:
The date this ruling issues
Relevant facts and circumstances
1. The Company was incorporated in Australia on XX Month 20XX. Its equity interests are not listed for quotation in the official list of any stock exchange.
2. The Company does not own any shares or units in any companies or trusts respectively.
3. The Company issued XX ordinary shares on incorporation:
4. Based on draft financial accounts for the year ended 30 June 2018, The Company had expenses of $X and assessable income of $X.
5. The Company is developing a virtual network involving sensors and controls that connect to a software-based command centre.
6. The Company’s goal is to provide a low cost whole-of-business solution (“The innovation”) to remotely manage and monitor selected business activities. The Company has identified its ultimate market as being the global market, with its initial target being Australian domestic markets.
7. The Company owns the intellectual property comprising the innovation. The shareholders of the Company are also shareholders in a related entity that offers a software solution for 2 forms of management. The functionality of each product, while complementary, is independent and specialised and the products will not be marketed together.
8. The innovation is a significantly improved product because it is more comprehensive, easier to install and operate, stable, independent and with a further reach than other products on the market to date.
9. The Company provided a market scan report and an update to that report which demonstrated its advantages over similar current competitors in the market. The Company highlighted the key differentiators of the innovation as being features which combined, produce a single unique product with distinct distance and cost advantages over other competitors on the market.
Commercialisation strategy
10. It estimates that its product is approximately 1/10th of the cost of its competitors.
11. The Company has prepared a six year budget forecast for the product which includes budgeted sales and operating costs. Revenue consists of sales hardware and software and an ongoing fee.
12. The innovation budget forecast provides details of projected sales and fees.
13. The Company will use an existing client database for a management product to promote their product which will form an adjunct to the management product. Key large clients who currently use the management product and are early technology adopters will be targeted early as influencers in the industry. The innovation is currently at the product conformance testing phase.
14. The Company’s commercialisation strategy starts from the development stage where the innovation has been independently validated through field trials. A comprehensive report was produced from the findings. Subsequently there has been a review and assessment of recommended modifications with product conformance testing which will take the hardware and software from the prototype to production stage. This work will roll into a limited commercial real life pilot with key clients to further fine tune the product. The company expects to go into production in Month 20XX.
15. The marketing plan has identified its methods as a multi-pronged approach using traditional and leveraged approaches with existing industry relationships. Nearer to the launch a marketing and communications specialist will be engaged to develop a detailed marketing strategy and a website with storefront. Sales staff will be employed. The Company will use a variety of advertising platforms.
16. The following market segments have been identified as initial targets:
a. Management product client base.
b. Australia wide industry base
c. Overseas site to test the innovation’s ability to function under different climatic conditions.
17. Within each of the above segments, the Company has identified specific potential customers.
18. The product offering will be priced lower than existing competitors in the Industry sector but offer increased functionality.
19. The Company has identified its addressable market as the Industry sector in Australia initially, then globally, with further development into other industries.
20. The Company has undertaken background research regarding licensing regulations for various countries around the world to understand how international sales would be approached in the future.
Information provided
21. You have provided information in a number of documents and phone conversations in relation to the Company, including:
a. your private ruling application.
b. our phone conversation with the Director of the Company.
c. supplementary information provided.
22. We have referred to the relevant information within these documents and conversations in applying the relevant tests to your circumstances.
23. You propose to issue new shares in the Company to various investors to assist in funding the continued development and commercialisation of the innovation.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subdivision 360-A
Income Tax Assessment Act 1997 section 360-40
Reasons for decision
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.
‘Principles-based test’ – subparagraphs 360-40(1)(e)(i) to (iv)
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…”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, 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
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.
Application to your circumstances
Test time
25. 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
26. For the purposes of subsection 360-40(1), the current year will be the year ending 30 June 20XX(the 20XX income year). For clarity, in relation to particular requirements within subsection 360-40(1), the last three income years will include the years ending 30 June 20XX, 20XX and 20XX, and the income year before 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)
27. As the Company was incorporated on X Month 20XX, which is within the last 3 income years, subparagraph 360-40(1)(a)(i) is satisfied.
Total expenses – paragraph 360-40(1)(b)
28. 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)
29. As the Company’s assessable income for the prior income year is less than $200,000 paragraph 360-40(1)(c) is satisfied.
No stock exchange listing – paragraph 360-40(1)(d)
30. 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
31. The Company will satisfy the early stage test for the entire 2019 income year, as each of the requirements within paragraphs 360-40(1)(a) to (d) have been satisfied.
100 point test
32. The Company has not provided any evidence of satisfying the 100 point test under section 360-45 for the year ending 30 June 2019. 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)
33. According to the Company, the innovation is the first comprehensive low cost virtual private business network that will remotely manage and monitor selected business activities. Although it will initially be targeted at the Australian domestic market, the innovation has been identified as having a wider industrial and global addressable market.
34. ‘The innovation will be the first to offer such a comprehensive, user-friendly, cost effective solution to virtual business management.
Genuinely focussed on developing for commercialisation – subparagraph 360-40(1)(e)(i)
35. The Company has taken the following steps in developing the innovation:
a. Formed relationships with large key clients
b. Conducted field trails
c. Reviewed prototype.
36. The Company is currently undertaking the following steps in developing the innovation:
a. Product conformance testing
b. Preparing for a limited commercial real life pilot with key clients.
37. This has led to the Company developing the innovation for XX,000 potential clients in the Industry sector.
38. The timeline provides that the Company has conducted trials, with a version ready for general release in Month 20XX.
39. The Company will develop potential customers to increase direct sales.
Conclusion on subparagraph 360-40(1)(e)(i)
40. The Company is genuinely focussed on developing the innovation for a commercial purpose. The innovation will be a significantly improved product compared to existing products.
41. Therefore subparagraph 360-40(1)(e)(i) will be satisfied for the time period from the date this ruling issues until 30 June 20XX 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)
42. The Company expects the innovation to appeal to a range of industries. This aids decision making and is particularly useful when assessing product or service viability in particular markets.
43. Through its commercialisation / marketing strategy, the Company hopes to foster widespread use of its product by providing a cheaper product with superior features to any other product on the market currently.
44. The Company is developing the innovation themselves. They will make their revenue through providing a cheaper product with superior features and an ongoing fee.
45. If the commercialisation strategy is successful, this may give the Company the ability to increase sales through referrals, advertising within the industry and online.
46. Therefore subparagraph 360-40(1)(e)(ii) will be satisfied.
Scalability – subparagraph 360-40(1)(e)(iii)
47. The innovation budget forecast provided illustrates the increase in projected sales.
48. Given that the innovation will be available domestically and globally, it is expected that the Company has the potential to successfully scale up its business.
49. The Company’s strategy for the use of the innovation will be able to generate increased revenue with an existing database of customers some of whom have influence and are early adopters of technology. This operating leverage affords the Company 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. The Company’s innovation will initially be targeted at the Australian markets. However, it is intended for worldwide use. It will be released globally once it gains traction in the initial targeted markets.
51. The innovation can be used worldwide by the industry with the potential to be developed in the future for other industries domestically and internationally. Thus, the ultimate addressable market is on a global scale and is not confined to a local city, area or region.
52. The Company has demonstrated that the innovation has the potential to address a broader market than just the local market, including international markets and other industries. Therefore subparagraph 360-40(1)(e)(iv) will be satisfied.
Competitive advantages – subparagraph 360-40(1)(e)(v)
53. The innovation has differentiating features which may give it a competitive advantage as these features combine to produce a single unique product with distinct distance and cost advantages over other competitors on the market
54. Being the most comprehensive product on the market, the Company has the first mover advantage. The Company has demonstrated the potential for the innovation to have competitive advantages within the ‘addressable market’ satisfying subparagraph 360-40(1)(e)(v).
Conclusion on principles test
55. 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 from the date of this ruling until 30 June 20XX or the date when the innovation has been fully developed and is ready for sale, whichever occurs earlier.
Conclusion
56. The Company meets the eligibility criteria of an ESIC under section 360-40 for the period commencing from the date of this ruling 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.