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ATO Interpretative Decision

ATO ID 2004/943 (Withdrawn)

Income tax
Assessability of lump sum payment for permanent injury occurring at work

Attention This ATO ID is withdrawn. Guidance on the view contained in this ATO ID can be found in Amounts not included as income (QC 31936).
Attention This document has changed over time. View its history.

Status of this decision: Decision withdrawn 25 January 2018.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 payment received by a taxpayer for permanent injury occurring at work, assessable under section 6-5 or section 102-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

No. A lump sum payment received by the taxpayer for permanent injury occurring at work is not assessable under section 6-5 of the ITAA 1997 as it is not ordinary income. Nor is it assessable under section 102-5 of the ITAA 1997 as subparagraph 118-37(1)(a)(i) of the ITAA 1997 disregards a capital gain made from a capital gains tax (CGT) event where the CGT event relates directly to compensation or damages received for any 'wrong or injury you suffer in your occupation'

Facts

The taxpayer has an income protection insurance policy.

The taxpayer was injured at work which resulted in permanent impairment.

The taxpayer received a lump sum payment in respect of permanent impairment from the insurance company.

Reasons for Decision

Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of a resident taxpayer includes ordinary income derived directly or indirectly from all sources during the income year.

Ordinary income has generally been held to include three categories, namely, income from rendering personal services, income from property and income from carrying on a business.

Other characteristics of 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.

The lump sum payment is not earned by the taxpayer as it does not directly relate to services performed. Rather the lump sum payment relates to the loss of physical abilities. The payment is also a one-off payment and thus does not have an element of recurrence or regularity. Although the payment can be said to be expected, and perhaps relied upon, this expectation arises from the investment in insurance, rather than from a relationship with personal services performed. Thus, the lump sum payment is not ordinary income and is therefore not assessable under subsection 6-5(2) of the ITAA 1997.

Section 6-10 of the ITAA 1997 provides that a taxpayer's assessable income includes amounts of statutory income, which are amounts that are not ordinary income but are included in assessable income by another provision.

Amounts received in respect of personal injury which are not direct compensation for loss of income will usually be capital in nature. Any net capital gain arising from the receipt, worked out in accordance with the CGT provisions of the ITAA 1997 is potentially assessable under section 102-5 of the ITAA 1997 as statutory income.

Taxation Ruling TR 95/35 deals with the capital gains treatment of compensation receipts. The ruling advocates a 'look-through' approach, which identifies the most relevant asset to which the compensation amount is most directly related. Paragraph 11 of TR 95/35 states that if an amount is not received in respect of an underlying asset, the amount relates to the disposal by the taxpayer of the right to seek compensation.

As the amount received by the taxpayer is not in respect of any underlying asset, the whole of the settlement amount is treated as capital proceeds from a CGT event (CGT event C2) happening to the taxpayer's right to seek compensation.

However, subparagraph 118-37(1)(a)(i) of the ITAA 1997 disregards a capital gain made from a CGT event relating directly to compensation or damages received for any 'wrong or injury you suffer in your occupation'. Therefore, any capital gain made from the CGT event happening to the taxpayer's right to seek compensation is disregarded under paragraph 118-37(1)(a) of the ITAA 1997. It is thus not assessable under section 102-5 of the ITAA 1997 as statutory income.

Subsection 6-15(1) of the ITAA 1997 provides that if an amount is not ordinary or statutory income it is not assessable income. Consequently no part of the amount received is included in the taxpayer's assessable income.

Amendment History

Date of Amendment Part Comment
28 August 2015 Title Amend for clarity
  Decision Update reference to subparagraph 118-37(1)(a)(i)
Otherwise amend for clarity
  Facts Amend for clarity
  Reasons for Decision Update reference to subparagraph 118-37(1)(a)(i)
Otherwise amend for clarity
  Legislative References Insert reference to section 6-10
Delete reference to section 6-20
Update reference to subparagraph 118-37(1)(a)(i)

Date of decision: 11 November 2004

Year of income:30 June 2005

Legislative References:
Income Tax Assessment Act 1997
   section 6-5(2)
   section 6-10
   subsection 6-15(1)
   section 102-5
   subparagraph 118-37(1)(a)(i)

Related Public Rulings (including Determinations)
Taxation Ruling TR 95/35

Keywords
Capital gains tax
Compensation income
Lump sum payments

Siebel/TDMS Reference Number: 4297670; 1-6YROFUC; 1-B4REHMW

Business Line: Small Business/Individual Taxpayers

Date of publication: 26 November 2004

ISSN: 1445-2782

ATO ID 2004 history   Top  
   Date   Version 
   11 November 2004   Original statement   
   28 August 2015   Updated statement   
 You are here ®  25 January 2018   Withdrawn   


 


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