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ATO Interpretative Decision

ATO ID 2002/1028 (Withdrawn)

Income Tax
Assessability of United Kingdom Lump Sum Bereavement Payment

Attention This ATO ID is withdrawn. This ATO ID contains a view in respect of a Bereavement Payment paid by the United Kingdom Department of Work and Pensions in relation to an individual who passed away before 6 April 2017. The payment is not available after that date. Despite its withdrawal, the view expressed in this ATO ID represents a straight application of the law and will continue to apply to payments received in respect of an individual who passed away before 6 April 2017.
Attention This document has changed over time. View its history.
FOI status: may be released
Status of this decision: Decision withdrawn 19 April 2018.

CautionCAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.


Issue

Is a lump sum Bereavement Payment received from the United Kingdom (UK) Department for Work and Pensions (DWP) included in the taxpayer's income under section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

No. A lump sum Bereavement Payment received from the UK DWP is not included in the taxpayer's income under section 6-5 of the ITAA 1997.

Facts

The taxpayer is an Australian resident for tax purposes.

The taxpayer received an amount from the UK DWP which is classified as a Bereavement Payment.

A Bereavement Payment is payable upon the death of a person to the surviving spouse. It is a one off payment to assist the surviving spouse with any expenses as a result of their spouse passing away.

Under UK tax laws a Bereavement Payment is a tax-free lump sum payable to a man or woman under state pension age, or to a person over state pension age whose late spouse was not entitled to a Category A Retirement Pension when they died.

The amount of the Bereavement Payment is UK£2,000.

Reasons for Decision

Subsection 6-5(2) of the ITAA 1997 states that the assessable income of an Australian resident taxpayer includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.

Ordinary income is income according to ordinary concepts which is not specifically defined in the legislation.

However, characteristics of ordinary income that have evolved from case law include receipts that:

·
 Are earned;
·
 Are expected;
·
 Are relied upon; and
·
 Have an element of periodicity, recurrence or regularity.

Payment for personal services, whether received in the capacity of an employee or otherwise in connection with employment or other personal services is income according to ordinary concepts. Similarly, any payment (for example compensation) to replace income is also considered to be income according to ordinary concepts.

The Bereavement Payment received by the taxpayer was a lump sum received from the UK DWP as a result of the taxpayer's spouse passing away. The payment is not taxable in the UK.

The payment does not have the characteristics of ordinary income. It was not earned by the taxpayer and was not a payment for any personal services provided. Further to this, the payment did not seek to compensate for any loss of earnings which would have otherwise been assessable as ordinary income. It was paid in order to assist the taxpayer with any expenses as a result of their spouse passing away. As a one-off payment it had no element of periodicity, recurrence or regularity.

The Bereavement Payment is therefore not income according to ordinary concepts and is accordingly not ordinary income. Further, the payment is not statutory income under section 6-10 of the ITAA 1997 as no specific provision in either the Income Tax Assessment Act 1936 or the ITAA 1997 includes the payment in assessable income.

The lump sum Bereavement Payment received from the UK DWP is not included in the taxpayer's income under section 6-5 of the ITAA 1997.

Note: As the payment is neither ordinary income nor statutory income and therefore does not form part of the taxpayer's assessable income it is not necessary to consider the application of any relevant double tax agreement under the International Tax Agreements Act 1953 .

Date of decision: 9 October 2002

Year of income:Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1997
   section 6-5
   subsection 6-5(2)
   section 6-10

Income Tax Assessment Act 1936
   The Act

International Tax Agreements Act 1953
   The Act

Keywords
Foreign income
United Kingdom
Bereavement allowances
Death of spouse

Siebel/TDMS Reference Number: CW3137717; 1-BX9BVFP

Business Line: Small Business/Individual Taxpayers

Date of publication: 30 October 2002

ISSN: 1445-2782

ATO ID 2002/1028 (Withdrawn) history   Top  
   Date   Version 
    9 October 2002   Original statement   
 You are here ®  19 April 2018   Withdrawn   


 


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