Private ruling: Early stage innovation company eligibility
Date of advice: 7 May 2020
Published: June 2020
Ruling period: Income year ending 30 June 20XX | Income year ending 30 June 20YY
Date scheme commenced: 1 July 20ZZ

Ruling: Q1: Does Company B satisfy the criteria of an Early Stage Innovation Company (ESIC) pursuant to subsection 360-40(1) of the Income Tax Assessment Act 1997 ('ITAA 1997')? | A1: Yes, Company B satisfies the criteria of an Early Stage Innovation Company (ESIC) pursuant to subsection 360-40(1) of the ITAA 1997 until the launch of their app product on XX/XX/XXXX.

Relevant facts and circumstances: Company B is a proprietary company incorporated and registered in the Australian Business Register on XX/XX/XXXX. Company B is a holding company with a number of subsidiaries. Company B develops and holds the intellectual property (IP) for the group. For the financial year ending 30 June 20XX, Company B had assessable income of less than $200,000 and less than $1m total expenses. Company B's equity interests are not listed for quotation in the official list of any stock exchange, either in Australia or a foreign country. Company B is commercialising a mobile phone finance app which provides both a personal financial management tool and new consumer leading model for users within the app. Company B's aim is to disrupt the payday lending model by enabling users to gain instant access to their wages on the same day they work, charging them a nominal fee with no interest or administration fees charged. Development of the product Company B is developing their products to address a number of discrete markets and is continuing to develop their products. Company B's products have been identified as having an international addressable market. Company B has identified that is has the ability to rapidly expand its business. Company B has identified its product has competitive advantage over similar product. Company B was developing their product until the launch of their app product on XX/XX/XXXX. You have provided a number of documents containing detailed information in relation to Company B, including: a. Private Binding Ruling ('PBR') Application dated XX/XX/XXXX. b. Your replies to our further information requests, including details of development work being undertaken and relevant financial statements. 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 360-15 | Income Tax Assessment Act 1997 section 360-40 | Income Tax Assessment Act 1997 section 360-45

Reasons for decision: Summary: Company B meets the eligibility requirements of an ESIC pursuant to subsection 360-40(1) until the launch of their app product on XX/XX/XXXX. | Detailed Reasoning - 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. | Detailed Reasoning - '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. | Detailed Reasoning - 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. '100 point test' - paragraph 360-40(1)(e) and section 360-45 To satisfy the 100 point test the company must obtain at least 100 points by meeting the innovation criteria in the table within section 360-45. The criteria are tested at a time immediately after the relevant shares are issued. If a company satisfies this test it does not need to satisfy the principles-based test. | Detailed Reasoning - 'Principles-based test' - subparagraphs 360-40(1)(e)(i) to (iv): 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 focussed on developing for commercialisation one or more new or significantly improved products, processes, services or marketing or organisational methods 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: 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..." 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. 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. 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 focussed 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. 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. | Detailed Reasoning - High growth potential: 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: 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: 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: 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 - Test time: For the purposes of this ruling, the test time for determining if Company B is a qualifying ESIC will be upon the issue of qualifying shares on a particular date on or after 1 July 20ZZ, but before 30 June 20YY. | Detailed Reasoning - Current year: Therefore, for the purposes of subsection 360-40(1), for a test time that occurred in the 20XX income year, the current year will be the 20XX income year, the prior income will be the 20ZZ income year and the last 3 income years comprise the 20WW, 20ZZ and 20XX income years up until the test time. For a test time that occurs in the 20YY income year, the current year will be the 20YY income year, the prior income year will be the 20XX income year, and the last 3 income years will comprise the 20ZZ, 20XX and 20YY income years up until the test time. | Detailed Reasoning - Incorporation or Registration - paragraph 360-40(1)(a): Company B was incorporated on XX/XX/20XX, which is within the last 3 income years of the 20XX and 20YY income years. Therefore, Company B satisfies subparagraph 360 40(1)(a)(i). Consequently, paragraph 360-40(1)(a) is satisfied. Total expenses - paragraph 360-40(1)(b) To meet the requirement in paragraph 360-40(1)(b), Company B and any of its 100% subsidiaries must have incurred total expenses of $1 million or less in the prior income years before the year in which the test time occurs. Company B was not yet incorporated in the 20ZZ income year. Hence, no expenses were incurred. Consequently, paragraph 360-40(1)(b) is satisfied for the 20XX income year. Company B incurred expenses less than $1 million in the 20XX income year. Hence, paragraph 360-40(1)(b) is satisfied for the 20YY income year. Assessable income - paragraph 360-40(1)(c) In applying the requirements of paragraph 360-40(1)(c), Company B and any of its 100% subsidiaries must have derived total assessable income of $200,000 or less in the relevant prior income year, being the income year before the current year. Company B did not make any assessable income in the 20ZZ and 20XX income years. Consequently, paragraph 360-40(1)(c) is satisfied for the 20XX and 20YY income years. No stock exchange listing - paragraph 360-40(1)(d) In applying the requirements of paragraph 360-40(1)(d), must not be listed on any Stock Exchange in Australia or a foreign country at the test time. Company B was not, and will not be, listed on any Stock Exchange in Australia or a foreign country at the test time, so paragraph 360-40(1)(d) is satisfied for the 20XX and 20YY income years. Conclusion on early stage test Company B will satisfy the early stage test for the entire 20XX and 20YY income years, as each of the requirements within paragraphs 360 40(1)(a) to (d) have been satisfied. | Detailed Reasoning - The '100 point test' - paragraph 360-40(1)(E) and section 360-45: Company B is electing to seek eligibility by satisfying the principles based Innovation test under section 360-40(1)(e)(i)-(v), in order to be issued with a private binding ruling. | Detailed Reasoning - Developing new or significantly improved innovations for commercialisation - subparagraph 360-40(1)(e)(i) ITAA 1997: In applying the requirements of subparagraph 360-40(1)(e)(i), Company B must be developing an innovation which is either new or significantly improved for an applicable addressable market. Company B is commercialising a mobile phone finance app which provides both a personal financial management tool and new consumer leading model for users within the app. Company B's aim is to disrupt the payday lending model by enabling users to gain instant access to their wages on the same day they work, charging them a nominal fee with no interest or administration fees charged.. Company B is genuinely focused on developing their products for an applicable addressable market, so subparagraph 360-40(1)(e)(i) is satisfied for the year ended 30 June 20XX and will be satisfied for a test time during the year ended 30 June 20YY until the app finished to be developed for commercialisation upon its launch on XX/XX/XXXX. | Detailed Reasoning - Genuinely focussed on developing for commercialisation - subparagraph 360-40(1)(e)(i) ITAA 1997: In applying the requirements of subparagraph 360-40(1)(e)(i), Company B must be genuinely focussed on developing an innovation for a commercial purpose in order to generate economic value and revenue for the company. Company B has outlined its objectives for the commercialisation of its mobile phone finance app. Company B is genuinely focussed on developing their products for a commercial purpose, so subparagraph 360-40(1)(e)(i) is satisfied for the year ended 30 June 20XX and will be satisfied for a test time during the year ended 30 June 20YY until the app finished to be developed for commercialisation upon its launch on XX/XX/XXXX. | Detailed Reasoning - High growth potential - subparagraph 360-40(1)(e)(ii) ITAA 1997: In applying the requirements of subparagraph 360-40(1)(e)(ii), Company B must be able to demonstrate that it has the potential for high growth within a broad addressable market. Company B has identified that is has the ability to rapidly expand its business. Company B has also identified that it has high growth within its addressable market. Company B has demonstrated a high growth potential for their products, so subparagraph 360-40(1)(e)(ii) is satisfied for the year ended 30 June 20XX and will be satisfied for a test time during the year ended 30 June 20YY until the app finished to be developed for commercialisation upon its launch on XX/XX/XXXX. | Detailed Reasoning - Broader than local market - subparagraph 360-40(1)(e)(iv) ITAA 1997: In applying the requirements of subparagraph 360-40(1)(e)(iv), Company B must be able to demonstrate that it has the potential to be able to address a broader than local market, including global markets. Company B will be 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. Company B has demonstrated that it has the capacity to address a broader than local market, so subparagraph 360-40(1)(e)(iv) is satisfied for the year ended 30 June 20XX and will be satisfied for a test time during the year ended 30 June 20YY until the app finished to be developed for commercialisation upon its launch on XX/XX/XXXX.. | Detailed Reasoning - Competitive advantages - subparagraph 360-40(1)(e)(v) ITAA 1997: In applying the requirements of subparagraph 360-40(1)(e)(v), Company B must demonstrate that it has potential to be able to have competitive advantage for that business. Company B has identified its product has competitive advantage: Company B has identified the a few factors differentiate its product over its competitors Company B has demonstrated that it has competitive advantages over its competitors, so subparagraph 360-40(1)(e)(v) is satisfied for the year ended 30 June 20XX and will be satisfied for a test time during the year ended 30 June 20YY until the app finished to be developed for commercialisation upon its launch on XX/XX/XXXX. | Detailed Reasoning - CONCLUSION FOR PRINCIPLES BASED TEST: Company B satisfies the principles based test as it has satisfied the requirements within subparagraphs 360-40(1)(e)(i) to (v) for the year ended 30 June 20XX and will be satisfied for a test time during the year ended 30 June 20YY until the app finished to be developed for commercialisation upon its launch on XX/XX/XXXX. | Detailed Reasoning - CONCLUSION: Company B meets the eligibility criteria of an ESIC under section 360-40 for a test time during the years ended 30 June 20XX and 20YY while the mobile phone finance app continues to be developed for commercialisation until XX/XX/XXXX when it launched its app.