Private ruling: Early stage innovation companies
Date of advice: 15 November 2019
Published: January 2020
Ruling period: Year ended 30 June 2019
Date scheme commenced: 1 July 2018

Ruling: Q1: For the year ending 30 June 2019 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 registered on the Australian Business Register in the 2018 income year. 2. The Company has no subsidiaries and is not listed on any stock exchange. 3. The Company has lodged its company income tax return for the year ended 30 June 2018. The total expenses declared in the return were less than $1 million, while total income was less than $200,000. 4. The Company is developing an operating system to operate a wide range of products for their customers. 5. The operating system is cloud-based and removes the need for high cost software builds and risky implementations. It is a global multi-product system. 6. The Company's services can be consumed individually or orchestrated together to provide a comprehensive product. The Company's processes reduce the cost of operations and compliance through automation, rules management, machine learning and advanced business intelligence reporting. 7. The Company is currently implementing the system for an Australian based company. This will allow the company to overseas. Once complete, the Company will be generating license fees and be commercially viable. However, the product roadmap is to provide operating systems to a broader range of products by 2021. 8. The financial projections indicate significant revenue growth through to 2023. 9. The Company's initiatives with in-built business analytics from establishment of the system will be very difficult and non-economic to replicate due to time and cost risk. The architecture (enabling integrations with third parties) is difficult to replicate for old systems. The Company therefore considers that it has positioning in the market that is extremely difficult to replicate due to enormous cost and time constraints. This, matched with significant domain knowledge and leadership capabilities of the founders and incentivized key development team, is how the Company expects to protect against competitors. Information provided 10. You have provided information in a number of documents including: a. Your private ruling application. b. Presentation document. 11. We have referred to the relevant information within these documents in applying the relevant tests to your circumstances. 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: 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. | 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 (v): 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..." [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. 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. [2] 17. 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. 18. 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. 19. 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. 20. '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: 21. 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: 22. 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: 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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 2019. Current year 26. For the purposes of subsection 360-40(1), the current year will be the year ended 30 June 2019 (the 2019 income year). For clarity, in relation to particular requirements within subsection 360-40(1), the last three income years will include the years ended 30 June 2019, 2018 and 2017, and the income year before the current year will be the year ended 30 June 2018 (the 2018 income year). | Detailed Reasoning - Early stage test: Incorporation or Registration - paragraph 360-40(1)(a) 27. As the Company was incorporated in the 2018 income year, 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 less than $1 million expenses in the prior income year, paragraph 360-40(1)(b) is satisfied. Assessable income - paragraph 360-40(1)(c) 29. As the Company had less than $200,000 assessable income for the prior income year, 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, subparagraph 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. | Detailed Reasoning - Principles based test: Developing new or significantly improved innovations - subparagraph 360-40(1)(e)(i) 32. The Company is developing a cloud-based operating system consisting of multiple interconnected services that can be orchestrated together, or in part. 33. The system has been designed to enable clients of disparate legal structures and locations to co-exist on the one platform. This is enabled as the global multi-product system has been architected to be a multi-lingual, multi-currency and multi-time zone platform. 34. The open API provides unrivalled integration capability with clients and other third parties. In addition, the APIs are self-documenting meaning that when code is built, no new documentation is required and users of the API have visibility on the latest version of what is available to them and what parameters are required. 35. The Company describes the premise of the operating system as 'plug and play'. This premise has yet to be seen in the space in which it operates. The Company's operating system is considered an innovation. Genuinely focussed on developing for commercialisation - subparagraph 360-40(1)(e)(i) 36. The Company is currently implementing the system for an Australian based company. This will allow the company to expand overseas by the end of the 2019 calendar year. Once complete, the Company will be generating license fees and be commercially viable. 37. Based on the above, the Company is genuinely focussed on developing the innovation for commercial purposes. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 2018 until 30 June 2019. Conclusion on subparagraph 360-40(1)(e)(i) 38. The Company is genuinely focussed on developing its operating system for a commercial purpose. This system will include features that are currently not available or improve upon what is available in the market and is clearly an innovation compared to existing operating systems in this space. 39. Therefore subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 2018 until 30 June 2019. High growth potential - subparagraph 360-40(1)(e)(ii) 40. The Company is currently implementing the system for an Australian based company and will generate licence fees once complete. In its initial stages most fees are forecast to be generated in the local Australian market. 41. However, according to financial forecasts, the Company's push overseas will likely see revenue from overseas exceed Australian revenue from 2021 onwards. 42. With the potential to access overseas markets, the Company can reasonably demonstrate that a high growth potential exists. Subparagraph 360-40(1)(e)(ii) is satisfied. Scalability - subparagraph 360-40(1)(e)(iii) 43. As the Company is developing an operating system it is not impacted by factors such as manufacturing capability or size of premises. The Company's ongoing costs would not be expected to increase in a linear fashion alongside its increase in market penetration. As the number of users increases, growth can be leveraged against already developed IT services. 44. As a software platform, 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) 45. As stated above, the Company plans to expand into overseas markets. The very nature of its offering is intended to integrate globally disparate clients, providers and intermediaries. That is, the operating system being developed by the Company is intended to be used globally across geographically disperse regions. 46. In short, the market for the Company's operating system is broader than the local market. Subparagraph 360-40(1)(e)(iv) is satisfied. Competitive advantages - subparagraph 360-40(1)(e)(v) 47. The 'plug and play' premise for the software provides the Company with a first mover advantage. Further, the API first architecture - which allows integrations with third parties and multi-tenancy for clients of disparate legal structures and locations to co-exist on the one platform - is difficult for old systems to replicate. It would also be costly and time consuming for new entrants to build a competing system with all the features of the Company's system from the ground up. 48. These factors demonstrate the potential for the Company's operating system platform to have competitive advantages, satisfying subparagraph 360-40(1)(e)(v). Conclusion on principles test 49. 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 2018 until 30 June 2019. Conclusion 50. The Company meets the eligibility criteria of an ESIC under section 360-40 for the period commencing 1 July 2018 until 30 June 2019. [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.