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Edited version of your written advice
Authorisation Number: 1051337990607
Date of advice: 15 February 2018
Ruling
Subject: Assessability of a lump sum compensation payment
Question
Is the lump sum payment you received pursuant to section 56 of the Return to Work Act 2014 (South Australia) (RWA) assessable as either ordinary income or as a capital gain?
Answer
No.
This ruling applies for the following period(s)
Year ended 30 June 20XX
The scheme commences on
Relevant facts and circumstances
You sustained permanent impairment said to have arisen from your employment.
You made a claim for compensation pursuant to the RWA through the South Australian Employment Tribunal.
The proceedings determined that you will receive a lump sum compensation payment pursuant to sections 56 of the RWA.
In accordance with Part 2 Division 5 section 22 of the RWA you have been assessed as having whole person impairment (WPI).
Assumption(s)
None.
Relevant legislative provisions
Income Tax Assessment Act 1997 section 6-5
Income Tax Assessment Act 1997 section 6-10
Income Tax Assessment Act 1997 Section 15-30
Income Tax Assessment Act 1997 section 104-25
Income Tax Assessment Act 1997 subparagraph 118 37(1)(a)(i)
Further issues for you to consider
None.
Anti-avoidance rules
None.
Reasons for decision
Section 6-5 and section 6-10 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of an Australian resident includes ordinary and statutory income (for example, capital gains) derived directly and indirectly from all sources, whether in or out of Australia during the income year
The ITAA 1997 does not provide specific guidance on the meaning of ordinary income. However, a substantial body of case law exists which identifies its likely characteristics. Amounts that are periodic, regular or recurrent and relied upon by the recipient for their regular expenditure are likely to be ordinary income, as are amounts that are the product of any employment of, or services rendered by, the recipient. Further, amounts which compensate for lost income or serve as a substitute for other income are themselves income according to ordinary concepts.
Section 56 of the RWA entitles a worker to compensation for economic loss of future earning capacity. Such amounts do not have the character of ordinary income. They are based on a sum prescribed by statute which bears no relationship to the employee's current or former earnings. In contrast, the calculation of weekly payments according to the worker's past and current earnings indicates that they reflect an actual loss of income as opposed to a loss of income earning capacity.
In your case, your lump sum payment does not bear any of the characteristics of ordinary income as it lacks any element of periodicity, recurrence or regularity, and nor is it paid to compensate for loss of income.
Therefore, the lump sum is capital in nature and will not be assessable as ordinary income.
Statutory income
The receipt of a lump sum compensation amount may give rise to a capital gain (statutory income) under CGT event C2 (section 104-25 of the ITAA 1997) which relates to cancellation, surrender or similar endings. However, a capital gain or loss made upon the ending of a CGT asset acquired on or after 20 September 1985 is disregarded under subparagraph 118-37(1)(a)(i) of the ITAA 1997, if the CGT event is in relation to compensation or damages received for any wrong or injury you suffer in your occupation.
In your case, the lump sum payment has been received as compensation for a ‘wrong or injury you have suffered in your occupation’, being the loss of body functionality in respect of your workplace injury/injuries.
Therefore, any capital gain or capital loss arising from the CGT event will be disregarded under subparagraph 118 37(1)(a)(i) of the ITAA 1997 and the payment will not be assessable as statutory income.
As the lump sum payments pursuant to section 56 of the RWA are not assessable as either ordinary or statutory income, you are not required to include the amounts in your assessable income.
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