Private ruling: ESIC
Date of advice: 17 October 2017
Published: March 2018
Ruling period: Year ending 30 June 2018
Date scheme commenced: 1 July 2017

Ruling: Q1: 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)? | A1: Yes.

Relevant facts and circumstances: 1. The Company was incorporated in Australia in the 2016 income year. Its equity interests are not listed for quotation in the official list of any stock exchange. 2. The Company has one subsidiary. The Company and its subsidiary had combined expenses less than $1 million in the 2017 income year, and assessable income less than $200,000. 3. The Company is developing an application. Specifically, the Company is developing new functionalities for applications. 4. The project consists of X main development areas which, in combination, allow the platform to deliver high-quality functionalities for users. The key project objectives have been documented. 5. The Company was required to develop its own proprietorial application that accounts for the unique fluctuations in availability. 6. The Company is an Intellectual Property enterprise – it is the intention to licence the product under licensing arrangements for particular territories or jurisdictions. 7. At present there are no significant companies in the world offering this service (albeit there are several operations in the process of starting) however none have the scope of the Company’s services as they generally are isolated to single cities with below par applications for bookings. 8. The Company has unique first mover advantages. 9. As the Company has already taken steps to develop its own proprietorial application. The plan is to licence this knowledge for a fee based on turnover. As licensees turnover increases so too will the licence fee revenue derived by the Company. 10. The growth of the Company will only add to the revenue stream without adding materially to the costs of deploying additional IT services to support the growth. 11. Revenue projections show the Company with revenue increasing significantly by the end of the 2019 income year June 2019. 12. The Company has already launched in some states. The company intends to expand into additional Australian cities with a view to heading into overseas markets. 13. The current stage development is proof of concept with a fully functioning app and a proven demand base. Further steps to develop the product/service for commercialisation include hiring and developing an in-house tech team to continually improve & enhance the app. 14. The App development will never be 100% complete in that there will always be ongoing feature updates.

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: All legislative references are to the ITAA 1997 unless otherwise indicated. | 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. | Detailed Reasoning - ‘The early stage test’: 2. The early stage test requirements are outlined in detail within paragraphs 360-40(1)(a) to (d). | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - ‘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. | Detailed Reasoning - 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.” | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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 income year ending 30 June 2018. Current year 28. For the purposes of subsection 360-40(1), the current year will be the year ending 30 June 2018 (the 2018 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 2018, 2017 and 2016, and the income year before the current year will be the year ending 30 June 2017 (the 2017 income year). | Detailed Reasoning - Early stage test: Incorporation or Registration – paragraph 360-40(1)(a) 29. As the Company was incorporated in 2016 which is within the last 3 income years, subparagraph 360-40(1)(a)(i) is satisfied. Total expenses – paragraph 360-40(1)(b) 30. As the Company and its subsidiary 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) 31. As the Company and its subsidiary had assessable income for the prior income year less than $200,000, paragraphs 360-40(1)(c) is satisfied. No stock 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 32. The Company will satisfy the early stage test for the entire 2018 income year, as each of the requirements within paragraphs 360-40(1)(a) to (d) have been satisfied. | Detailed Reasoning - Principles based test: Developing new or significantly improved innovations for commercialisation – subparagraph 360-40(1)(e)(i) 33. The Company is the only app of its type in Australia. The Company is undertaking the development of new functionalities in specific mobile applications. 34. As the pioneer in its service, the Company was required to develop specific functionalities to cater for a limited population and technical requirements. The Company was required to develop and test its own algorithms and source code. Genuinely focussed on developing for commercialisation – subparagraph 360-40(1)(e)(i) 35. The Company has already taken steps to develop its own proprietorial application. As part of its commercialisation plan the Company will licence this knowledge for a fee based on turnover. 36. The current stage of development is proof of concept with a fully functioning app and a proven demand base. Further steps to develop the product/service for commercialisation include hiring and developing an in-house tech team to continually improve and enhance the app. Conclusion on subparagraph 360-40(1)(e)(i) 37. The Company is genuinely focussed on developing the platform for a commercial purpose. The platform will be a significantly improved product compared to existing products. 38. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 2017 until 30 June 2018 or the date when the app has been fully developed, whichever occurs earliest. Once the app 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) 39. Revenue projections show the with significant revenue increases to the end of the 2019 income year. 40. Therefore, subparagraph 360-40(1)(e)(ii) will be satisfied. Scalability – subparagraph 360-40(1)(e)(iii) 41. The Company’s ongoing costs would not be expected to increase in a linear fashion alongside its increase in users. Its growth can be leveraged against already developed IT services. 42. As a proprietorial application, 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) 43. The Company’s app will initially be targeted at the Australian market. However given there are no significant companies in the world offering the same service, it is feasible that the Company can utilise its first mover advantage to branch into overseas markets, as intended. This is particularly so given the nature of its business model. i.e. a smartphone app that can easily be adapted to overseas markets at minimal costs. 44. The Company has demonstrated its app has the potential to address a broader market than Australia. Therefore, subparagraph 360-40(1)(e)(iv) will be satisfied. Competitive advantages – subparagraph 360-40(1)(e)(v) 45. The app that the Company is developing is the only one of its type in Australia. Currently there are no comparable services on the market locally and few internationally. 46. Being the first of such, the app that the Company is developing will have the first mover advantage. The Company has demonstrated the potential for their platform to have competitive advantages within the home loan market space, 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 period commencing 1 July 2017 until 30 June 2018 or the date when the app has been fully developed whichever occurs earlier. Conclusion 48. The Company meets the eligibility criteria of an ESIC under section 360-40 for the period commencing 1 July 2017 until the earlier of 30 June 2018 or the date when the app has been fully developed.

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