The Australian Taxation Office (ATO) on 13 February 2017 released a concise guide on the early stage venture capital limited partnership (ESVCLP) program including those rules introduced by Innovation Agenda amendments in 2016.
However, no insights into some of the practical issues currently facing ESVCLPs, which continue to be a source of uncertainty for the venture capital (VC) industry, are discussed.
The Government in its March 2016 FinTech statement, committed to encourage investment in FinTech firms by ensuring that the tax concessions are available for venture capital investments in FinTech startups, a commitment which remains to be enacted.
Whilst the ESVCLP rules do allow for a general partner (GP) to seek a ruling on whether FinTech is an eligible ESVCLP investment, inevitably these processes create delay and uncertainty that critically, for FinTech start-ups, create liquidity issues, or worse, loss of first mover advantage.
GP’s must continue to exercise judgment as to whether the FinTech start-up is eligible for investment, in the absence of administrative guidance consistent with the Government’s stated (but unenacted) policy, and if in doubt consider a ruling whilst managing their investment processes.
There is confusion as to what “value” means in the context of the $250m total asset value threshold – does it mean “market value” of the assets or alternatively “book value”? Evidently, the outcomes of these respective terms can be significantly different (i.e. consider differences in recognition of internally generated goodwill or intangible assets).
Relevantly, the Explanatory Memorandum would appear to support the view it is “book value” given the context in which the phrase “total value of the entity’s assets” is used in the ESVCLP rules. However, GPs should continue to be aware of when the $250m threshold might be exceeded (on either approach) and seek advice as the application of the new 6 month rule to provide certainty to their investors on any future disposal of the investee company.
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