Tag Archives: Startup

Draft Enabling Framework for Regulatory Sandbox

In July 2016 the Reserve Bank of India (RBI) had setup an inter-regulatory Working Group to look into and report on various aspects relating to fintech. One of the key recommendations of the Working Group was the introduction of an appropriate framework for a regulatory sandbox. Thus on 24th April 2019, the RBI has come out with a Draft Enabling Framework for Regulatory Sandbox (“Draft Framework”).

Before we proceed with the details regarding the Draft Framework it is important to understand the concept of a regulatory sandbox.  Regulatory sandbox (RS) refers to live testing of new products or services in a controlled/ tested regulatory environment for which the regulators may permit certain relaxation in the regulations only for the limited purpose of testing. The RS allows the entities to test their product in a controlled environment before a wider-scale launch. Thus the RS at its core is a formal regulatory programme for market participants to test new products, services, business models with customers in a live environment subject to certain safeguards and oversights.  Further, RBI in its Working Group Paper also discussed the concept of an ‘innovation hub’ which provides support, advice or guidance to regulated or unregulated firms in navigating the regulatory framework or identifying the legal issues.

Eligibility criteria of an applicant

The Draft Framework lays down the eligibility criteria for participating in the RS. The target applicants for entry in the RS are fintech firms which meet the prescribed conditions of a start-up by the Government. The focus of the RS is to encourage innovation where (a) there is an absence of regulations, (b) there is a need to temporarily ease the regulations for the proposed innovation, and (c) the proposed innovation shows promise of easing the delivery of financial services.

The RS shall begin the testing process with 10-12 selected entities through a comprehensive selection process which has been detailed under the ‘Fit and Proper criteria for selection of participants in the RS’. The entities should satisfy the following conditions: (a)  the entity should be a company incorporated and registered in India and should be “Start up” , (b) the entity should have a minimum net worth of Rs 50 lakhs as per its latest audited balance sheet, (c) the promoters/ directors of the entity should be fit and proper and a declaration should be made to that effect, (d) the conduct of the bank accounts as well as the entity’s promoters/directors should be satisfactory, (e) a satisfactory CIBIL or equivalent credit score of the promoters/directors of the entity is required, (f) applicant should showcase that their product/services and ready for deployment in the broader market, (g) entity should demonstrate arrangements to ensure compliance with regulations on consumer data protection and privacy, and (h) the entity should have adequate safeguards related to the IT system to ensure safety of data and records.

The fintech solution proposed by the applicant should highlight the existing gap in the financial system and demonstrate that there is a regulatory barrier that prevents the deployment of the product/service. Additionally, the applicant should clearly define the test scenarios and the expected outcomes from the sandbox experimentation and an acceptable exit and transition strategy in case the fintech driven solutions are discontinued or deployed on a broader scale after exiting the RS. To this effect, the applicant is required to share the result of the proof of concept/ testing of use cases including any relevant prior experiences before getting admission into RS for testing.

Design features of the RS

The RS may run a few cohorts i.e. end-to-end sandbox process, with a limited number of entities in each cohort testing their products in a stipulated time. The RS shall be based on different subjects focusing on areas such as financial inclusion, payments, digital KYC, etc. Though these cohorts may run for varying time period but it should ordinarily be completed within 6 months.

The innovative products/services which could be considered for testing under RS would include retail payments, money transfer services, market places lending, digital KYC, financial advisory services, smart contract, cybersecurity products, etc. On the other hand, the innovative technology which could be considered for testing under RS would include data analytics, API services, applications using block chain, AI and machine learning applications and mobile technology applications.

Regulatory requirements for RS applicant and exclusions from RS

The regulatory requirements which shall be mandatorily adhered to by the applicant are: (a) customer privacy and data protection, (b) security of transactions, (c) KYC/ AML/ CFT requirements, (d) secure storage of and access to payment data of stakeholders, and (e) statutory requirements.

However, an entity would not be suitable for RS if the proposed financial service is similar to a product/service/technology which already is being offered in India unless the applicant can show that either a different technology is gainfully applied or the same technology is being used in a more effective and efficient manner. Accordingly, the Draft Regulations have put together an indicative negative list of products/ services/ technology which may not be accepted for testing. The list includes businesses related to credit registries, credit information, crypto-currency, initial coin offerings and chain marketing services.

Extending or Exiting the RS

In case the sandbox entity requires an extension of the sandbox period it shall apply to the RBI within one (1) month before the expiration of the sandbox period. Further, RBI at its discretion can discontinue the RS testing for an entity if it does not achieve the intended purpose or if the entity is unable to comply with the relevant regulatory requirements.  The sandbox entity may exit from the RS on its own by informing the RBI one week in advance.

Boundary conditions, transparency, and consumer protection

A sandbox must have a well-defined space and duration for the proposed financial services to be launched and the boundary conditions for the RS shall include the start and end date of RS, target customer type, limit the number of customers involved, transaction ceiling, and cap on customer. Further, the RBI shall communicate the entire RS process including the launch, theme of the cohort, entry and exit criteria on its website to ensure transparency. And as stated earlier before discontinuing/ exiting from the RS, the sandbox entity shall ensure that it meets all the existing obligations towards its customers and entering into an RS does not limit the liability of the entity towards its customers.

Sandbox process and stages

The end to end sandbox process, including the test of the products/ services shall be overseen by the FinTech Unit (FTU) at RBI, and the stages involved in the RS are as follows:

  • Stage 1: Preliminary Screening (4 weeks) – FTU shall ensure that the applicant clearly understands the objectives and principles of the RS, and it is in this phase the application received by the FTU are evaluated and shortlisted who meet the eligibility criteria.
  • Stage 2: Testing Design (3 weeks) – In this phase which lasts for 3 weeks the FTU finalizes the test design through an iterative engagement with the applicant and shall identify the outcome metrics for evaluating the evidence of risk or benefits.
  • Stage 3: Application Assessment (3weeks) – In this phase the FTU vets the test design and proposes regulatory modifications if any.
  • Stage 4: Testing (12 weeks) – The testing may last for a maximum tenure for 12 weeks. In this phase, the FTU generates empirical evidence to assess the test conducted.
  • Stage 5: Evaluation (4 weeks) – The final evaluation of the outcome of testing the products/ services/ technology is confirmed in this phase by RBI. The FTU shall assess the outcome report and decide whether the product/service is viable and acceptable under RS.  

Statutory and legal issues

If the applicant is allowed by the FTU into the RS, the entity would be provided by appropriate regulatory support by RBI in the form of relaxation of specific regulatory requirements during the duration of the RS. However, RBI shall not bear any liability arising from the RS process and any liability arising from the experiment has to be borne by the entity alone. Further, the sandbox entity should ensure that on exiting from the RS or on the completion of the RS process, the sandbox entity should fully comply with all the relevant regulatory requirements.

Source:

1.https://m.rbi.org.in/scripts/PublicationReportDetails.aspx?UrlPage=&ID=920#A_2

2.Report of the Working Group on FinTech and Digital Banking- https://www.rbi.org.in/Scripts/PublicationReportDetails.aspx?UrlPage=&ID=892

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National Policy on Software Products, 2019

The Ministry of Electronics and Information Technology released the National Policy on Software Products, 2019 (“the Policy”) aimed at stimulating the software products ecosystem in India. The Policy acknowledges that the Indian IT/ITeS industry is primarily service oriented. The Policy cites NASSCOM’s Strategic Review, 2017 which claimed that the global software products industry was valued at 413 billion USD, while the Indian software products industry’s contribution stood at just 7.1 billion USD.  The Policy aims to develop India as a global software product hub which is driven by innovation. The Policy aims to help start-ups related to software products in conducting their business in India while dealing with regulations and compliances in a hassle-free manner. MeitY had introduced the draft of the Policy back in 2016, which was commended by the industry bigwigs. The salient features of the Policy are summarised below.

The Policy defines a software product as “a programme used or produced by a computer or network which can be stored or transmitted through an electronic medium and offers some form of utility. In addition, such a product can be protected in India through permissible Intellectual Property Right laws and can be commercialized for use through licensing”. In order to determine which companies would be able to avail the benefits under the Policy, an Indian Software Product Company (“ISPC”) is defined as “an Indian company in which 51% or more share-holding is with Indian citizen or person of Indian origin and is engaged in the development, commercialisation, licensing and sale /service of Software products and has IP rights over the Software product(s).

Some key missions of the Policy include:

(a) Achieving a ten-fold increase in India’s contribution towards the global software product industry by 2025.

(b) Nurturing 10,000 tech startups including 1000 such startups in lower tier cities and towns leading to employment of 3.5 million people by 2025.

(c) “Upskilling” a million IT professionals, motivating 100,000 students and producing 10,000 leaders for the Indian industry.

(d) Developing 20 strategically located clusters to support software product companies with ICT infrastructure, R&D and mentorship.

For achieving the goals envisaged in the Policy a National Software Product Mission (“NSPM”) would be established under the aegis of MeitY. The NSPM would be responsible for designing strategies for the development of the industry, monitoring of the special funds created under the Policy and facilitating Government agencies in the promotion of Software Products.

Ecosystem Development

The Policy envisages the creation of an Indian software product registry to provide a trusted trade environment and conception of an environment that allows software product companies to participate in the capital market. A single window platform would be established to allow the industry to deal with regulatory issues pertaining to imports/exports and incorporation/dissolution of ISPCs. ISPCs would also be able to set off any taxes payable with respect to R&D. For the classification of software products in a logical fashion, a model Harmonised System Code would be created.

Promotion of Entrepreneurship, innovation and Employment

A “fund of funds” called Software Product Development Fund (“SPDF”) with a corpus of Rs. 1,000 crore would be created for participation in venture fund to promote the scaling up of market ready products, with the ultimate goal of having at least 100 ISPCs with a valuation of Rs 500 crore or employing more than 200 employees. An incubation program would be initiated to provide startups with adequate mentoring, seed fund, R&D and testing facilities and marketing support. Rs. 500 crore would be set aside by the Government to support innovation and research in institutes of higher learning, with the objective to support industry-academia research. 20 dedicated challenge grants would be initiated to encourage the industry to tackle issues related to pressing societal needs such as sanitation and healthcare. A centre of excellence would be set up to specifically promote design and development of software products. The Policy envisions the creation of an “upgradable” infrastructure to help software product startups to identify and tackle cyber vulnerabilities.

Human Resource Development

Considering the pace with which technology is changing, the Policy wishes to enable Indian students and professionals to have future-ready skills. The Policy acknowledges that the existing course curriculum needs to be revised. Further, short term skill development programs and national level competency tests would be developed.

Promotion of Trade

The software product registry (discussed earlier) would be integrated with Government e-market[i]. The Policy states that the industry would be encouraged to create and use open APIs for improving interoperability of Indian software products and enable incremental innovation. Indian software products would be given preference vis-à-vis Government procurement in accordance with the Public Procurement (Preference to Make in India) Order, 2017. Indian software products would be showcased abroad through various events and specialised infrastructure to be set up in India and abroad. Further, Indian software products would be integrated in India’s foreign aid programs. The industry would be encouraged to develop products which would help people overcome language barriers, so that all sections of the Indian populace are included in this digital boom.

 

Sources:

  1. https://gem.gov.in/
  2. National Policy on Software Products (2019)- https://www.meity.gov.in/writereaddata/files/national_policy_on_software_products-2019.pdf

 

Estonia: The ‘Smart’ Country

Estonia: The ‘Smart’ Country

We had an opportunity to visitTallin, the capital city of Estonia and what a rich experience it was, as we went from exploring the Enterprise Estonia showroom and the e-Residency opportunities to having interesting discussions with legal partners and witnessing the high energy, high technology ambience of Tallinn Science Park, Tehnopol.We have been connected to the Estonian innovation eco-system earlier but witnessing that in person and at close quarters was indeed a great experience

Enterprise Estonia

Enterprise Estonia showroom, where Media Team Member FredericoPlantera took us through the pulse of Enterprise Estonia – a short presentation (enter e-Estonia) on how with just a population of about 1.3 million the country is managing to be in the top tiers of theWorld Bank, OECD and other similar ratings. With 99% of services being online (excluding a few like divorce, marriage and buying and selling real estate), the country boasts of having recognised Internet as a social right, providing smart ID cards to all its residents (not citizens) and having 7% of its GDP coming from the Information, Communication and Technology (ICT) sector. Innovation is digital-by-default and incorporation of a company is a matter of 18 minutes in this country; add to that the facilities of e-taxation and e-residency (see our post on e-residency here); and there is a high potential of having a magical combination.

We also got a glimpse into how X-Road, the ‘highway of e-Estonia’, works. X-Road is basically the infrastructure and backbone of e-Estonia that connects various databases, ERPs, tax boards, state portals, banks, telecom companies, population registers, et al. across the country, thereby facilitating over millions of transactions per year. We are told that the technology of X-Road is largely similar to and a predecessor of today’s block-chain technology (having been in existence since 2001). It is also being exported and there are talks of exporting this technology to other EU countries like Finland, Netherlands, with the creation of a digitised EU market being the ultimate goal.

Amongst other things, Enterprise Estonia also provides ‘Start-up grant’ of up to €15,000, subject to certain terms and conditions. It is also the focal point for receiving various other grants and funding, made available through the Ministry of Economic Affairs under the Organisation of Research and Development Act, which is an enabling legislation for baseline funding, research grants.

Legal framework and taxation: We had the opportunity of meeting some of the top law firms in Tallin with detailed discussions on legal structure and taxation. You’ll be glad that there isno corporate income tax in Estonia on retained and reinvested profits; 20% corporate income tax on distributed profits (actual and deemed); dividends paid to non-residents being not subject to any withholding tax; DTAA between India and Estonia; 20% value added tax rate; no mandatory auditing for private limited companies below certain thresholds; easy foreign direct investment in Estonia; minimum share capital requirement (for private limited) of €2500, but the company can be established so that the share capital is paid later on; etc.

Incubation space: We also had the opportunity of visiting the incubation space of Tallinn Science Park, Tehnopol, which has supported companies such as Skype, GuardTime (the block-chain service provider to the Estonian government).Tehnopol is one of the biggest tech hubs in the Baltic region and works extensively with companies in the green technology, ICT and health technology sector, often times providing supports to companies, even at prototyping phases. The average incubation period is up to 2 years and till a company raises capital/generates the first sale. It invests up to € 10 000worth of expertise to start-up companies to find the first seed investment or reach export markets, providing access to 30+ business coaches working hands-on with start-ups, 70+ trainings, investor panels, sales, pitching and networking events annually, co-working center, and last but not the least, access to € 300,000prototyping fund PROTOTRON (prototron.ee). (For more details, see here).

So there, if you as an Indian enterprise wish to expand to EU, perhaps Estonia can be your landing place.

Deal structuring with the ‘startup tax’

The Finance Act 2012 brought in an amendment to tax the share premium which is above the fair value of investment by the resident angel investors and not proven satisfactorily to the tax assessing officer.  This amendment is effective 1 April 2013.

The fledgling Indian startup ecosystem has now started to thrive on the early stage investments by the angels, who invest based on startups creating value. Startup tax is anti entrepreneurship.

Many of you came back asking for possible structuring of investment deals for residents.  Before suggesting, here’s the relevant context (boring) but please read, and may be you can come up with some suggestions yourself.

The amendment to section 56 of the Income Tax Act, which is effective from 1 April 2013 provides for the following terms:

–       Consideration for issue of ‘shares’ in a ‘private limited company’ from a person being ‘resident’ in India.

–       Which exceeds face value, (the aggregate consideration received for such shares as exceeds the fair market value of the shares)

–       Fair market value means (i) “a value determined with such method as may be prescribed” or (ii) “as may be substantiated by the company to the satisfaction of the Assessing Officer, based on the value, on the date of issue of shares, of its assets, including intangible assets being goodwill, know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, whichever is high”

–       Amendment to section 68 of the Income Tax Act, requires explanation about the nature and source of money.

This now requires a substantiation of the valuation at which investors invest in the new and smart startups where the product, service, IP is to be proven with revenues. That is quite a task!

When we read the Direct Tax notification on “valuation of shares and securities

The fair market value of unquoted equity shares = (Assets-Liabilities) * (Paid up value of equity shares)/ (paid up equity capital)

Well, not that simple and each of the term has a norm to be followed for calculation.  But you get the idea…

However, the valuation rules for ‘securities other than equity’ is based on ‘price it would fetch if sold in open market’ supported by a valuation report from merchant banker or CA. (This was as per 2010 Direct Tax notification)

The updated Direct Tax notification refers to “the fair market value of the unquoted equity shares determined by a merchant banker or an accountant as per the Discounted Free Cash Flow method.” However, no clarity on valuation for securities other than equity shares is provided for.

Reading through the above requirements, then there are some possible structuring of investments that can be beneficial to the startup and the resident investors.

–       If the investment is from non-resident, NRE, FCNR account, then the startup tax is not applicable.

–       If the investment is from a VC, then the startup tax is not applicable.

–       We could ‘assume’ that if a resident angel investor, co-invests with a VC, then the valuation is somewhat proven. But sources of funds is still be explained to the Income tax authorities.

–       If the investment is in equity shares, then the valuation will be very low.  Then, proving to the satisfaction of the income tax officer will be hard.

–       Securities other than equity shares is valued at fair market value with valuation certificate by a merchant banker or a CA. Compulsorily convertible preference shares (CCPS) and compulsorily convertible debentures (CCD) are construed as ‘equity’ as per RBI norms, but the Direct Tax Circular refers to ‘equity shares’.  So, a possibility is to use CCPS and CCD as an instrument.  Other instruments that can be used are optionally convertible debentures, debentures, redeemable preference shares.

–       If the issuance is at a convertible debt, which converts to equity, then the conversion ratio and conversion price has to be carefully looked at.

–       One of the things to look at, in terms of control (voting), is to have a small number of equity shares (can be less than 10 numbers too) with differential voting rights.

We would love to hear your comments, leave them in the comments section.

DisclaimerThis is not a legal opinion and should not be considered as one.  Please check with your attorney before taking any actions.