Glossary

Conducted for: whose R&D it is decides who can claim it

The conducted-for rule says a company can usually claim only R&D conducted for itself, meaning it receives the major benefit: it owns the results, controls the work and bears the financial risk. The main exception is R&D done solely in Australia for a related foreign company in a treaty country, if the conditions in section 355-220 are met.

Reviewed by George WalchFacts last verified

Example

An illustrative Australian subsidiary of a US software group builds a new ranking model in Sydney under an intercompany agreement. The parent owns all resulting IP, sets the roadmap and pays costs plus 8% whatever the outcome, so the work is conducted for the parent. The subsidiary can still claim only through s 355-210(1)(c): the US is a treaty country and the parent is connected, so it turns on the work staying in Australia and the agreement binding only the two companies. If those conditions hold, the at-risk rule does not apply to the fee.

Legislative reference: Income Tax Assessment Act 1997, s 355-210(1) and (2), with s 355-215 (permanent establishments) and s 355-220 (foreign entities)

Related terms: at risk rule, associate payments, overseas finding, R&D entity, RSP

Eligibility asks whether an activity is R&D. The conducted-for rule asks a different question: for whom? Section 355-210 allows notional deductions only for activities conducted for the claimant, which stops two entities claiming the same work.

The major benefit test

The ATO treats an activity as conducted for the entity that receives the major benefit, judged by:

  • Effective ownership of the know-how, intellectual property or other results, in practice as well as on paper.
  • Control appropriate to the work, which can exist even when an expert contractor does it.
  • Financial risk: who bears the cost if the experiment fails.

Under subsection 355-210(2), an activity conducted to a significant extent for another entity fails, even when the claimant also benefits.

The exceptions

  • Work for a related foreign company (s 355-210(1)(c)). The Australian R&D entity can claim R&D conducted for one or more foreign companies if each is incorporated under a foreign law and resident in a country with a comprehensive tax treaty with Australia (s 355-210(1)(c)) and, under s 355-220, each is connected with or affiliated with the R&D entity, the work is done solely in Australia, and it follows a written agreement binding only the R&D entity and each foreign resident. A subcontractor to a related Australian R&D entity cannot use this route.
  • Permanent establishments (s 355-210(1)(b)). A foreign company carrying on business through an Australian permanent establishment can claim R&D done solely in Australia for the company, but not for the purposes of the establishment, with written evidence of that.
  • CRC contributions. Monetary contributions to a Cooperative Research Centre do not need the test at all.

These exceptions decide whose claim it is. The activity still has to be core or supporting R&D.

Where it bites

Intercompany development agreements are the main risk: see companies with an overseas parent. The ATO's TA 2023/4 targets groups where an associated service entity does and funds the work while a separate company claims it. For a domestic payer, a fee paid regardless of results engages the at-risk rule, but section 355-405(4) switches that rule off for work covered by the foreign exceptions. Work done overseas is a different question: it counts only when conducted for the Australian entity itself and covered by an overseas finding, and TA 2023/5 describes claims where such work was in substance for a foreign related entity. Work bought from a research service provider must still be conducted for the company that pays.

Frequently asked questions

Can a company claim R&D it does under contract for a client?
Usually not. If the client owns the results, directs the work and pays whatever the outcome, the work is conducted for the client. The client may be able to claim instead if it meets the other requirements.
Does holding a licence to the results count as ownership?
Not necessarily. The ATO looks at practical as well as formal rights. A paper interest in the results while a related party holds the primary rights to exploit them is a pattern described in TA 2023/4 and TA 2023/5.

Sources

  1. Income Tax Assessment Act 1997, ss 355-210 to 355-220 (Federal Register of Legislation)
  2. ATO, Who R&D activities are conducted for
  3. ATO, Taxpayer Alert TA 2023/4 (R&D delivered by associated entities)
  4. ATO, Taxpayer Alert TA 2023/5 (R&D conducted overseas for foreign related entities)

The R&D Tax Incentive is a self-assessment program. This page is general information, not tax, legal or financial advice; eligibility depends on your circumstances and you should seek independent advice for them.