Edited version of private ruling

Authorisation Number: 1011620338671

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Ruling

Subject: Capital gains tax (CGT) - Storm Financial - Compensation receipts

1. Is the equity component of the compensation payment that you will receive additional capital proceeds?

Yes.

2. Is the negative equity repaid by the borrower component that you will receive additional capital proceeds or assessable as income?

Yes.

3. Is the interest component of the compensation amount that you will receive assessable as income?

Yes.

This ruling applies for the following periods:

Year ended 30 June 2009.

Year ended 30 June 2010.

Year ended 30 June 2011.

The scheme commences on:

1 July 2008.

Relevant facts and circumstances

Relevant facts

You and your spouse were clients of Storm Financial Limited (Storm) and received financial advice from Storm.

On the advice of Storm and with Storm's assistance you applied for a margin loan from the Commonwealth Bank of Australia's (CBA) Colonial Geared Investments division. The margin loan was approved by Colonial Geared Investments and the margin loan was advanced to you. 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 Storm branded index fund for which the responsible entity was the CBA or one of its related bodies corporate.

Your investments with Storm were sold by the bank or its related bodies corporate.

You have, either directly or through your lawyers made a claim against the bank for compensation concerning the circumstances of the margin loan and/or the security and repayment of indebtedness under the margin loan.

The parties have participated in a dispute resolution process known as the Storm Resolution Scheme (the scheme) on the terms set out in the Borrower Deed.

By participating in the scheme the parties agreed to:

· the payment of the Settlement Sum by the bank to you

· the closure or variation of the margin loan as set out in the Deed, and

· the releases which are set out in the Deed.

In a letter of a certain date the Commonwealth Bank of Australia (CBA) provided you with the Storm Resolution Scheme - Bank Proposal. Details of your proposed entitlement under the Storm Resolution Scheme were outlined in the Settlement Deed.

For the purposes of this private ruling you will accept the Storm Resolution Scheme - Bank Proposal, settlement amount of $A + B + C + D + E.

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 116-20.

Reasons for decision

Question 1

Summary

The equity component of the compensation payment that you will receive is considered additional capital proceeds.

Detailed reasoning

CGT consequences - equity component

The general CGT provisions are set out in Part 3-1 of the Income Tax Assessment Act 1997 (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 reverences that relate to the Income Tax Assessment Act 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

You and your spouse were clients of Storm. You and your spouse applied for and were granted a margin loan from the CBA's Colonial Geared Investments division. The margin loan was used to acquire various stocks and investments. It may have included units in a Storm branded index fund for which the responsible entity was the CBA or one of its related bodies such as Colonial First State.

Some time later the CBA determined that you and your spouse's historical current loan to security ratio had exceeded its historical margin call loan-to-security ratio. The CBA did not sell your investments until after it determined that your loan had exceeded its loan to security ratio.

Either, you and your spouse or through your lawyers, you and your spouse have made a claim against the CBA for compensation concerning the circumstances surrounding the margin call and/or the security and the repayment of indebtedness under the margin call. You and your spouse were made an offer by the CBA in a letter of a certain date, the Storm Resolution Scheme- Bank Proposal. Details of your proposed entitlement under the Storm Resolution Scheme were outlined in the Settlement Deed

On the facts of this case, it is considered that the compensation that you will receive has 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 compensation amount that you will receive is a 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 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 occurred when your investments were sold.

Note: As the compensation amount is considered additional capital proceeds you will need to amend any capital gain or capital loss made in relation to the CGT events that happened when your investments were sold by the bank or its related body corporate. You will need to apportion the additional capital proceeds, firstly in line with your ownership interest in the original investments sold by Storm, (you jointly owned the investments with your spouse) and then secondly on a pro-rata basis to every CGT event that happened. As the CGT events may have occurred in the financial year ended 30 June 2009 and the financial year ended 30 June 2010 you may need to request an amendment to the already lodged income tax return for the year ended 30 June 2009 to reflect the increase in capital proceeds to any CGT events that happened in that year.

Question 3

Summary

The interest component of the compensation amount that you will receive is assessable as income.

Detailed reasoning

The second part of this request involves the question of whether the interest that will be paid by the CBA 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 will be assessable income of the taxpayer under the general income provisions in section 6-5 of the ITAA 1997.

Note: The interest amount will need to be apportioned in line with your ownership interest in the original investments sold by Storm, (that is, interest income is apportioned between you and your spouse).

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