You may not think that your company structure has much to do with the act of developing an innovation for commercialisation, though think again.
The ATO recently confirm that subsidiary company would not satisfy the commercialisation limb of the first principal test, 'developing a new and or significantly innovation' as the company itself did not pass the hurdle.
It seems unlikely, however it’s not uncommon for R&D to be claimed in a holding or IP company, with the trading and fundraise in another.
Since the Company does not own the IP it is not genuinely focussed on developing the supplements for commercialisation. Although it operates in conjunction with SubCo and provides funding, this is insufficient to be considered to be genuinely focussed on developing the innovation.
The view was expressed in a private binding ruling, so technically it does not apply to all taxpayers, though we can confirm that this is not the first time the issue has arisen and on prior advise the opinion was the same.
Welcome news, as ASIC issues the first batch of licences allowing seven intermediaries to help small and innovative companies to raise funds from a crowd of investors, following commencement of the Government's equity crowdfunding framework in September 2017.
This framework, has removed regulatory barriers inhibiting Australian entrepreneurs from obtaining the growth capital they need to turn good ideas into commercial successes.
Consistent with ASIC's approach of batching licence applications, the first batch of crowdfunding intermediary licences has been issued to: Big Start, Billfolda, Birchal Financial Services, Equitise, Global Funding Partners, IQX Investment Services and On-Market Bookbuilds. The Government looks forward to more new entrants.
Companies will now be able to raise funds through offers hosted by these intermediaries, with the first offers expected to be available shortly.
Eligible public companies will be able to raise up to $5 million in funds through equity crowdfunding, with retail investors able to invest up to $10,000 per issuing company per year.
More information on the existing CSEF regime for public companies is available on the ASIC website.
The equity crowdfunding regime complements the tax incentives for angel investors in start-ups, the introduction of Open Banking and development of an enhanced regulatory sandbox for new and innovative FinTech products and services.
Faced with standoffish investors, many companies are considering an ATO private ruling to confirm that they qualify as an early stage innovation company (ESIC).
Whilst a ruling would be based on the facts at a given point of time (like our indicative listings), the appeal of the regulatory approval is obvious.
So what sort of things are needed and should I take that approach with my company?
Some of the details are require include;
- Group structure;
- Financial statements of the company and any '100% owned subsidiaries';
- Intellectual property or provisional/granted patents relevant to the company;
- Current documentation, including;
Business plan, inc;
- description of the innovation being developed
- evidence of steps or activities taken and proposed in commercialisation
- competitor analysis (comparative)
- Prior year Company Income Tax Return(s)
- Details as requested by your assessors
Essentially the Private Binding Ruling (PBR) is a mini audit, so don't expect to convert the ATO staff into seed investors. All though, equally you may be surprised to find that they are keen to work with you towards an outcome, particularly if you've done the required groundwork.
But why wouldn't you do an ATO PBR?
- Time.... (expect 6-18 weeks depending on how well prepared you are, and how complex it the innovation is)
- Cost.... (expert advice isn't free, and going it alone is problematic and could be very costly)
- Options (what about the 100 points test! is AOK in the right situation)
- Failure (yes, that's right, you could fail a PBR on the principals test)
The last point is of interest particularly due to the tendency for firms to believe that they are the only ones innovating when in reality the market is quickly moving and pinning down a potential advantage is less important than growth. If that sounds like you, then a PBR could be a bad move, particularly when 100 points could be only a $50k investment and R&D claim away!
In any-case, we are keen to assist and happy to provide you a free interchange for investors and the company to keep track of your ESIC status whilst you get back to making the impossible happen!
We've had a series of enquires regarding the uptake of investments that meet the ESIC requirement, so what's my take on this?
- It seems that investors are finding ESIC an extra, rather than a purpose to invest*
- An investment friendly startup might close the round quicker or at an improved valuation**
- Investment doesn't happen just because of ESIC eligibility
This might not be the full story as we do not offer a matching service, only a transparent tracking service. *It may also be due to the fact that ESIC status remains unclear due to ambiguities regarding the application of the law (and or delay in ATO Private Rulings).
So far, most of the investors involved in closed rounds never engage us, so we are typically dealing with the founders, accountants and lawyers, perhaps the lead investor of a prior round. This may change as we cross the line into the 2018 tax year and the investors & companies are in a position to claim the offset.
In may ways its still early days for ESIC,
If ESIC concessions were designed to assist independent follow-on investment in companies, can an investment upon incorporation qualify for the concession?
Its a question we've been asked a few times now and thanks to some kind research and contributions from the ATO and others we are getting to the nub of it.
Chances are the answer will be NO, YOU WERE NOT AN ESIC at the time of investment (probably)!
The law isn't precisely saying this, however it does operate to close out founders and affiliates from the loop. Call this unfair, but be clear, the exclusion of founders was by design.
So what happens if your venture was trading as a sole trader/pship and you incorporated upon receipt of funding???
In this instance, the money was new, and that money could be independent, so its the same as any other ESIC investment right? Wrong.
In terms of the company, you need to ask two tricky questions;
- Was the company, immediately after receipt of the funds 'genuinely focused on developing the innovation'
- Are the investors affiliates (or acting in concert with the founder)
We think that neither test is impossible to pass, however both are particularly problematic for founders, for example; were you acting in concert or in accordance with the wishes of investors when you incorporated? Yes? So why are you not affiliated?
It gets worse, as often that formation capital would be handy to add 50 points towards subsequent points based innovation (i.e. the 100 points test).
Our advice, get an ATO ruling! These issues will turn on your personal facts, up and until such time as a general determination issues to help clarify the matter. Even then, its going to be a tricky area.