Edited version of private ruling

Authorisation Number: 1011476319477

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Ruling

Subject: Capital gains tax - compensation payments

Question 1

Will the compensation payment which the taxpayer may receive from the large organisation be assessable as a capital gain under section 104-10 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

Yes.

Question 2

Will the interest component of the compensation amount be assessable under section 6-5 of the ITAA 1997?

Answer:

Yes.

This ruling applies for the following period:

30 June 2010

The scheme commences on:

1 July 2009

Relevant facts

The taxpayer was a client of a financial organisation and received financial advice from that organisation. With the assistance of the financial organisation the taxpayer applied for a margin loan from a division of a large organisation. The margin loan was approved and the margin loan was advanced to the taxpayer. The margin loan was secured by various stocks and investments purchased with the proceeds of the margin loan. The security may have included units in a branded index fund for which the responsible entity was the large organisation or one of its divisions.

On a specific date the large organisation determined that the taxpayer's historical current loan to security ratio would have first exceeded its historical margin call loan-to-security ratio.

Over the next year or so the taxpayer's investments were sold by the large organisation or one of its divisions.

The taxpayer has, either directly or through their lawyers made a claim against the large organisation for compensation concerning the circumstances of the margin loan and/or the security and the repayment of indebtedness under the margin loan.

The parties have participated in a dispute resolution process on the terms set out in the appropriate Borrower Deed.

The large organisation wrote to the taxpayer and their spouse offering details of the proposal and settlement deed.

If the taxpayer participates in the scheme, the parties will agree to a number of terms as set out in the settlement deed.

Assumptions

That the taxpayer will accept the large organisation's offer.

Relevant legislative provisions

Income Tax Assessment Act 1997, Section 6-5

Income Tax Assessment Act 1997, Subsection 6-5(1)

Income Tax Assessment Act 1997, Subsection 6-5(2)

Income Tax Assessment Act 1997, Section 104-10

Income Tax Assessment Act 1997, Section 104-25

Income Tax Assessment Act 1997, Subsection 104-25(1)

Income Tax Assessment Act 1997, Section 108-5

Income Tax Assessment Act 1997, Section 110-25

Income Tax Assessment Act 1997, Subsection 110-55(6)

Reasons for decision

Question 1

Capital gains tax (CGT) Consequences

The general CGT provisions are set out in Part 3-1 of the ITAA 1997. Under the CGT provisions a taxpayer will make a capital gain or loss only if a CGT event happens.

To determine if a CGT event happens in respect of a compensation payment it is necessary to consider the nature of the asset to which the compensation payment relates.

The Commissioner's policy on the treatment of compensation payments is set out in Taxation Ruling TR 95/35 (capital gains: treatment of compensation receipts). TR 95/35 states that the particular asset for which compensation has been received by the taxpayer may be:

· an underlying asset;

· a right to seek compensation; or

· a notional asset in terms of subsection 160M(7) (section 104-155 of the ITAA 1997).

(TR 95/35 provides legislative references that relate to the Income Tax Assessment Act 1936 (ITAA 1936). The equivalent provisions in the ITAA 1997 are cited where appropriate.)

In determining which is the most relevant asset it is often appropriate to adopt a 'look through' approach to the transaction or arrangement which generates the compensation receipt.

In TR 95/35 the term 'underlying asset' is used. The underlying asset is defined in TR 95/35 as:

the asset that, using the 'look-through' approach, is disposed of or has suffered permanent damage or has been permanently reduced in value because of some act, happening, transaction, occurrence or event which has resulted in a right to seek compensation from the person or entity causing that damage or loss in value or against any other person or entity.

If there is more than one underlying asset, the relevant underlying asset is the asset which leads directly to the payment of the amount of compensation. For example, if a taxpayer receives an amount of compensation for the destruction of his or her truck, the truck is the underlying asset.

Taxation Ruling TR 97/3 also discusses compensation and deals with compensation received by landowners from public authorities. It explains at paragraph 2 that it extends the application of TR 95/35 and should be read in conjunction with that ruling.

Paragraphs 4 to 8 of TR 97/3 discuss the compensation received from a public authority for the compulsory acquisition of an easement and states that:-

4. Compensation in respect of an easement created by statute in favour of a public authority cannot be said to have been received for the grant of the easement. The Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and similar Acts in other jurisdictions enable public authorities to take land or an interest in land (including an easement) for specified purposes and confer on the affected landowner a right to compensation. In these circumstances, the landowner cannot be said to have created an asset as required for subsection 160M(6) of the Act (now includes 104-35 of the ITAA 1997) to apply. The easement is created by operation of the relevant statute and is vested in the public authority. This constitutes a compulsory acquisition of the easement.

5. The compensation received by a landowner from a public authority that compulsorily acquires an easement is not excluded from the scope of TR 95/35 by paragraph 2 of that Ruling which states that:

'This Ruling does not consider:

· amounts received for the grant of easements, profits a prendre and licences - these are covered in detail in Taxation Ruling IT 2561 and in Taxation Determinations TD 93/235 and TD 93/236'.

6. A strict application of Part IIIA would require the compensation received from a public authority to be treated as consideration in respect of the disposal by the landowner of the right to compensation. However, TR 95/35 focuses on the asset to which the compensation receipt most directly relates. In the case of easements acquired under statute and the consequential disposal of the right to compensation, the most relevant asset is the landowner's pre-existing land with its rights of ownership including, for example, a right to exclude all others. This right to exclude all others is forfeited in part when the easement comes into existence. The loss of part of this right constitutes the disposal of part of the underlying asset (the land) for Part IIIA purposes (paragraph 160M(3)(b) (now 104-25(1) of the ITAA 1997), subsection 160M(1) (now 104-10(2) and 109-5(1) of the ITAA 1997) and section 160R (now 108-5(2)(a) of the ITAA 1997).

7. Paragraph 4 of TR 95/35 states that:

If an amount of compensation is received by a taxpayer wholly in respect of the disposal of an underlying asset, or part of an underlying asset, of the taxpayer the compensation represents consideration received on the disposal of that asset. In these circumstances, we consider that the amount is not consideration received for the disposal of any other asset, such as the right to seek compensation.

8. Applying this approach, an amount of compensation received by a landowner for the loss of part of the rights of ownership is accepted as being consideration received in respect of the part disposal of the underlying asset (the land). The amount is not consideration for disposal of the right to seek compensation.

The ruling also considers a number of other circumstances when a landowner grants an easement on their land and in all but one instance the amount received is treated as consideration in respect of the part disposal of the land.

To the extent that the payment relates to the disposal of an underlying asset, CGT event A1 under section 104-10 of the ITAA 1997 happens.

This case:

The taxpayer and their spouse were clients of a financial organisation. They applied and were granted a margin loan from the division of a large organisation. The margin loan was used to acquire various stocks and investments. It may have included units in a branded index fund for which the responsible entity was the large organisation or one of its divisions.

On a specific date the large organisation determined that that taxpayer's historical current loan to security ratio had exceeded its historical margin call loan-to-security ration. The large organisation did not sell the taxpayer's investments until after it determined that the taxpayer's loan had exceeded its loan to security ratio.

The taxpayer or the taxpayer's solicitors made a claim against the large organisation for compensation concerning the circumstances surrounding the margin call and/or the security and the repayment of indebtedness under the margin call. The large organisation issued a letter to the taxpayer with details of its proposal and settlement deed. The settlement deed agreed to pay the taxpayer compensation and interest.

On the facts of this case, it is considered that the compensation received had a direct and substantial link with the underlying asset (the investments). Accordingly, in line with the guidelines provided in paragraph 4 of TR 95/35 and TR 97/3 it is considered that the proposed compensation amount was received as part of the underlying asset and it was not received for the disposal of any other asset, such as the right to seek compensation. The amount offered is therefore accepted as consideration received for the disposal of the underlying assets and CGT event A1 in section 104-10 of the ITAA 1997 will occur.

Question 2

The second part of this request involves the question of whether the interest paid by the large organisation is assessable to the taxpayer. This is discussed in paragraph 26 of TR 95/35 when it states that:-

Interest awarded as part of a compensation amount is assessable income of the taxpayer under the general income provisions. If the taxpayer receives an undissected lump sum compensation amount and the interest cannot be separately identified and segregated out of that receipt, no part of that receipt can be said to represent interest. If the compensation cannot be dissected it is likely that the whole amount relates to the disposal of the right to seek compensation.

In this instance the interest is separately identified and segregated out of the lump sum and as such is assessable income of the taxpayer under the general income provisions in section 6-5 of the ITAA 1997.

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