The Federal Court has denied a sports company’s appeal to claim research & development incentives for creating an Australian signature basketball shoe.
The movie Air highlighted the importance of the signature Air Jordan shoe to Nike. While expected to sell around US$3 million worth of shoes by its fourth year, the signature shoe eclipsed expectations, raking in US$126 million in its first year. Nike sold 1.5 million in the first six weeks following clever marketing suggesting that the colourful shoes breached the NBA regulations.
Nike’s fourth-quarter results as of 31 May 2024 showed the Jordan brand worth US$7 billion. The bright spot in the company’s results was a 6% sales gain.
In Australia, Peak Australia created the Delly1. Peak worked on the final shoe design with Australian Olympian and NBA Champion Matthew Dellavedova. Dellavedova has stated in interviews that he had “…a whole lot of involvement with the shoe… I wanted a low-cut shoe that was light and close to the ground because I need to guard all these quick guards that are tough to defend over here [in the NBA]. They [Peak] did a great job with that, and as we went through the process of me testing it, we just made minor adjustments.”
However, did the process undertaken to create the Delly1 meet the requirements to access research and development (R&D) concessions?
Accessing R&D concessions
The R&D tax incentive program encourages research and development that companies might not otherwise undertake. The incentive offers a tax offset calculated based on qualifying R&D expenditures. The tax offset rate and whether it is refundable or non-refundable depends on the company’s situation.
To access the incentive, R&D activities have to be “core” or “supporting.”
Active Sports Management Pty Ltd lodged applications with Industry Innovation and Science Australia (IISA) to register activities relating to the development of a customised basketball shoe (Delly1) as “core R&D activities.” A core activity is one that can’t be determined in advance, can only be determined by systematic progression through scientific principles and experimentation, and is conducted to generate new knowledge.
Unfortunately for Active Sports Management, the ATO, Administrative Appeals Tribunal, and now the Federal Court did not see the development of Delly1 as core R&D.
The claim was denied because the outcome did not appear to have technical or scientific uncertainty, just subjective views.
If you need assistance with applying for your R&D incentive concessions, please reach out to us, we are here to help.
