Private ruling: Early stage innovation company
Date of advice: 8 March 2021
Published: June 2021
Ruling period: Year ended 30 June 20XX | Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Does Company A 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: Company A was incorporated in Australia on Date X. Its equity interests are not listed for quotation in the official list of any stock exchange. Company A has no subsidiaries. Company A had expenses of less than $1 million in the previous income year; in the year ended 30 June 20XX Company A's total expenses were $X. Company A had expenses of less than $1 million in the previous income year; in the year ended 30 June 20XX Company A's total expenses were $X. Company A generated assessable income of less than $200,000 in the previous income year; in the year ended 30 June 20XX Company A's total assessable income was $X Company A generated assessable income of less than $200,000 in the previous income year; in the year ended 30 June 20XX Company A's total assessable income was $X. Company A has identified its ultimate market for the Product as being the global market, with its initial target being the Australian market. Company A has identified specific potential customers. Company A's product is being developed and development milestones have been prepared and expects to release the product on Date X. Company A will pursue product sales through licensing its product. Information provided You have provided information in a number of documents and phone conversations in relation to the Product, including: a. your private ruling application. b. supplementary information provided. We have referred to the relevant information within these documents and conversations in applying the relevant tests to your circumstances. You propose to issue new shares in Company A to various investors to assist in funding the continued development and commercialisation of the Product.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subdivision 360-A | Income Tax Assessment Act 1997 section 360-40 Qualifying Early Stage Innovation Company | 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' | 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) | 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) | 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. | A company that does not meet any of these conditions will not qualify as an ESIC. | Total expenses - paragraph 360-40(1)(b) | 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) | 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) | 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 | 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) | 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. | 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. | 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 | Foreign Company test - paragraph 360-40(1)(f) | At the test time, the company must not be a foreign company within the meaning of the Corporations Act 2001. | 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. | Developing new or significantly improved innovations for commercialisation | 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] | 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. | 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. | 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] | 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." | 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." | 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. | '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 | 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 | 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 | 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 | 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 | For the purposes of this ruling, the test time for determining if Company A is a qualifying ESIC will be a particular date during the income year ending 30 June 20XX. | Current year | 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). | Current year | 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) | As Company A was incorporated within the last 6 income years and has incurred expenses of less than $1 million over the last three years, subparagraph 360-40(1)(a)(ii) is satisfied. | Total expenses - paragraph 360-40(1)(b) | As Company A had expenses of $1 million of less in the prior income years, paragraph 360-40(1)(b) is satisfied. | Assessable income - paragraph 360-40(1)(c) | As Company A's assessable income for the prior income years is $200,000 or less paragraph 360-40(1)(c) is satisfied. | No stock exchange listing - paragraph 360-40(1)(d) | As Company A 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 | Company A will satisfy the early stage test for the entire 20XX income year, as each of the requirements within paragraphs 360-40(1)(a) to (d) have been satisfied. | Company A will satisfy the early stage test for the entire 20XX income year, 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) | According to Company A the Product is the first product available in its target market. The Product has been identified as having a global addressable market. | Genuinely focussed on developing for commercialisation -subparagraph 360-40(1)(e)(i) | Company A is still developing the prototype and will have a finalised version later this year. | Details of the commercialisation strategy were provided. | Conclusion on subparagraph 360-40(1)(e)(i) | Company A is genuinely focussed on developing its product for a commercial purpose. The product will be a significantly new and improved product when compared to what is currently available in the target market. | Therefore, 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, Company A will no longer be 'developing' it for commercialisation and subparagraph 360-40((1)(e)(i) will no longer be satisfied. | High growth potential - subparagraph 360-40(1)(e)(ii) | Company A provided details of its projected growth and based on that information subparagraph 360-40(1)(e)(ii) will be satisfied. | Scalability - subparagraph 360-40(1)(e)(iii) | Company A's business model provided illustrates the projected increase in income. The information provided also shows that Company A has 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) | Company A has demonstrated the potential to address a broader market than just the local market. Therefore, subparagraph 360-40(1)(e)(iv) will be satisfied. | Competitive advantages - subparagraph 360-40(1)(e)(v) | Company A has demonstrated the potential for it to have competitive advantages within the target market, satisfying subparagraph 360-40(1)(e)(v). | Conclusion on principles test | Company A 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 | As Company A was incorporated in Australia it is not a Foreign Company and paragraph 360-40(1)(f) is satisfied. | Conclusion | Company A meets the eligibility criteria of an ESIC under section 360-40 for the period commencing 1 July 20XX until 30 June 20XX. | [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.