Private ruling: Early stage innovation company qualification
Date of advice: 17 August 2021
Published: October 2021
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Does the Company meet the criteria of an Early Stage Innovation Company under subsection 360-40(1) of the Income Tax Assessment Act 1997 (ITAA 1997)? | A1: Yes

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. 1. The Company was incorporated in Australia on Date X. Its equity interests are not listed for quotation on the official lost of any stock exchange in Australia or elsewhere. 2. The Company has 2, 100% owned subsidiaries. The Company and its subsidiaries had expenses of less than $1 million in the previous income year, i.e. the year ended 30 June 20XX and its assessable income for the same income year (ending 30 June 20XX) was less than $200,000. 3. The Company is developing a product and software application, and information that details its development was provided.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subdivision 360-A | Income Tax Assessment Act 1997 section 360-40 | Income Tax Assessment Act 1997 subsection 360-40(1) | Income Tax Assessment Act 1997 paragraph 360-40(1)(a) | Income Tax Assessment Act 1997 paragraph 360-40(1)(b) | Income Tax Assessment Act 1997 paragraph 360-40(1)(c) | Income Tax Assessment Act 1997 paragraph 360-40(1)(d) | Income Tax Assessment Act 1997 paragraph 360-40(1)(e) | Income Tax Assessment Act 1997 subparagraph 360-40(1)(e)(i) | Income Tax Assessment Act 1997 subparagraph 360-40(1)(e)(ii) | Income Tax Assessment Act 1997 subparagraph 360-40(1)(e)(iii) | Income Tax Assessment Act 1997 subparagraph 360-140(1)(e)(iv) | Income Tax Assessment Act 1997 subparagraph 360-140(1)(e)(v) | Income Tax Assessment Act 1997 section 360-45

Reasons for decision: Summary: While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision. 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: a) incorporated in Australia within the last three income years (the latest being the current year); or b) incorporated in Australia within the last 6 income years (the latest being the current year), and across the last 3 of those income years before the current year it and its 100% subsidiaries (if any) incurred total expenses of $1 million or less; or c) 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. | 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: a) the company must be genuinely focused on developing one or more new or significantly improved innovations for commercialisation b) the business relating to that innovation must have a high growth potential c) the company must demonstrate that it has the potential to be able to successfully scale up the business relating to the innovation d) 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 e) 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 1.75 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. | Detailed Reasoning - 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. | Detailed Reasoning - 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. | 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 - 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. | 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 20XX. Current year 28. For the purposes of subsection 360-40(1), the current year will be the year ending 30 June 20XX (the 20XX income year). | Detailed Reasoning - Early stage test: Incorporation or Registration - paragraph 360-40(1)(a) 29. As the Company was incorporated on Registered on Date X, which is within the last 3 income years, paragraph 360-40(1)(a) is satisfied. Total expenses - paragraph 360-40(1)(b) 30. As the Company had expenses of $1 million or less in the prior income year (the 20XX income year), paragraph 360-40(1)(b) is satisfied. Assessable income - paragraph 360-40(1)(c) 31. As the Company's assessable income in the prior income year (the 20XX income year) is $200,000 or less, paragraph 360-40(1)(c) is satisfied. No stock exchange listing - paragraph 360-40(1)(d) 32. As the Company 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 33. The Company 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. | Detailed Reasoning - 100-point test: 34. The Company has not provided any evidence of satisfying the 100-point test under section 360-45 for the year ending 30 June 20XX. For the company to be a qualifying ESIC it will need to satisfy the principles-based test. | Detailed Reasoning - Principles based test: Developing new or significantly improved innovations for commercialisation - subparagraph 360-40(1)(e)(i) 35. According to the Company, the Company is developing a product and software application that will greatly improve building site safety. 36. There are not any other products on the market that provide real-time monitoring of workplace safety. 37. In addition, the product will provide real-time alerts if it is tampered with in any manner. Other products in the market do not provide real-time safety updates, and if tampered with, may not be identified for a significant amount of time. 38. As such the Company will be the first to offer such a product and software application. Conclusion on subparagraph 360-40(1)(e)(i) 39. The Company is genuinely focused on developing the product and accompanying software application for a commercial purpose. The product and software application will be new products as compared to existing products. 40. Therefore, subparagraph 360-40(1)(e)(i) will be satisfied for the time period from 1 July 20XX until 30 June 20XX or the date when the Product and Software Application have been fully developed, whichever occurs earliest. Once the Product and Software Application have 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) 41. The Company has identified a significant gap in the construction industry as it concerns worker safety, and is looking to address this gap through the development of the Product and Software Application. 42. The Company expects that the Product and Software Application will be used by many construction companies. Feedback has been provided from a number of construction companies indicating that they are very interested in the Product and Software Application. 43. Therefore subparagraph 360-40(1)(e)(ii) will be satisfied. Scalability - subparagraph 360-40(1)(e)(iii) 44. The Company has provided market forecasts for the Product and the Software Application. The forecasts provided indicate that as the revenue from the Product and Software Application grows, the gross profit margin increases and total expenditure decreases are compared to revenue growth. 45. This operating leverage affords the Company the potential to successfully be able to scale up its business. Therefore, subparagraph 360-40(1)(e)(iii) will be satisfied. Broader than local market - subparagraph 360-40(1)(e)(iv) 46. The Company has provided evidence that their Product and Software Application has the potential to address a broader market than just the local market. The Company has provided an analysis of the international market, indicating the potential client size in both number and capital. 47. Therefore, subparagraph 360-40(1)(e)(iv) will be satisfied. Competitive advantages - subparagraph 360-40(1)(e)(v) 48. The Product and Software Application are unique products that are currently unavailable on the market. 49. The Company has also sought a provisional patent for the Product and Software Application, further protecting its product. 50. Being the only entity to offer a particular product, the Company has adequately demonstrated the potential for the Product and the Software Application to have competitive advantages within the target market. 51. Subparagraph 360-40(1)(e)(v) will be satisfied. Conclusion on principles test 52. 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 or the date when the Product and Software Application have been fully developed, whichever occurs earlier. | Detailed Reasoning - Foreign Company Test: 53. As the Company was incorporated in Australia, it is not a Foreign Company and paragraph 360-40(1)(f) is satisfied. Conclusion 54. 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 Product and Software Application have been fully developed, whichever occurs earlier. [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.

This ruling applies for the following period: | Reasons for decision: These reasons for decision accompany the Notice of private ruling for The Company Pty Ltd.