Edited version of private advice

Authorisation Number: 1051827075215

Date of advice: 27 April 2021

Ruling

Subject: Lump sum compensation payments

Question 1

Is the general damages payment of $X (general damages payment) to be made to you by the employer, considered to be an employment termination payment as defined in section 82-130 of the Income Tax Assessment Act 1997 (ITAA 10997)?

Answer

No.

Questions 2

Will the general damages payment be assessable as either ordinary or statutory income?

Answer

No.

Question 3

Will any part of the lump sum payment of $Y (lump sum payment) you will receive from the employer be assessable as an employment termination payment in accordance with section 82-130 of the ITAA 1997?

Answer

Yes.

Question 4

Will the lump sum payment made pursuant to section 53 of the Return to Work Act 2014 (South Australia)(RWA) for future weekly payments be assessable as ordinary income?

Answer

Yes.

Question 5

Will the lump sum payment made pursuant to section 54 of the RWA for future medical and like expenses be assessable as either ordinary or statutory income?

Answer

No.

Question 6

Will the lump sum payment made pursuant to section 56 of the RWA for loss of future earning capacity, be assessable as either ordinary or statutory income?

Answer

No.

Question 7

Will the lump sum payment made pursuant to section 58 of the RWA for non-economic loss, be assessable as either ordinary or statutory income?

Answer

No.

This ruling applies for the following period:

Financial year ended 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You sustained compensable injuries in the course of your employment.

Z is an appointed claims agent for the Return to Work Scheme in South Australia. Z operates within the standards detailed in Schedule 5 of the RWA.

You made a worker's compensation claim in respect of the injuries you sustained. Z accepted your claim for weekly payments of income support and medical and like expenses pursuant to the RWA.

You made a further claim for lump sum compensation for permanent impairment pursuant to section 58 of the RWA. By determination, your claim was rejected by the employer.

You lodged an Application for Review in the South Australian Employment Tribunal, in which you disputed the determination (the SAET proceedings).

You and the employer have now agreed to resolve the SAET proceedings on the basis of the Heads of Agreement and Consent Minutes of Order filed in the SAET proceedings.

The Heads of Agreement and Minutes are in draft form and will be signed by all parties and attached to an application for consent orders from the Tribunal.

It was agreed that the determination rejecting your claim for lump sum compensation pursuant to section 58 of the RWA be set aside, and that you have suffered a compensable degree of whole person impairment in respect of all impairments arising out of the work injury.

Pursuant to section 58 of the RWA, you are entitled to a lump sum for non-economic loss based on the degree of whole person impairment you have been assessed as suffering.

Section 58 of the RWA provides an entitlement to a lump sum payment for non-economic loss for a worker who has been assessed as suffering 5% or more WPI as a result of their work injury, subject to certain exceptions

Subsection 58(4) of the RWA states that the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations.

Non-economic loss is defined in the RWA as:

•         pain and suffering

•         loss of amenities of life

•         loss of expectation of life

•         disfigurement

•         any other loss or detriment of non-economic nature

The scope of the proceedings was enlarged pursuant to section 65 of the South Australian Employment Tribunal Act 2014 (SA) and you were found to be entitled to an additional lump sum payment pursuant to section 56 of the RWA.

Section 56 of the RWA provides an entitlement to a lump sum payment for loss of future earning capacity for a worker (other than a seriously injured worker) who has been assessed as suffering a degree of WPI (between 5% and 29%) as a result of their work injury, subject to certain exceptions.

The lump sum is determined according to a formula set out in subsection 56(4) of the RWA. The calculation takes into account the prescribed sum that applies to the injured worker's degree of WPI, their age and the proportion of full-time work performed at the time of the injury.

In addition to the above orders, it is agreed that you and the employer will enter into a separate Agreement for the redemption of your entitlements pursuant to section 53 of the RWA for future weekly payments and pursuant to section 54 of the RWA for future medical and like expenses to be paid in the form of two lump sum payments.

The lump sum payment for the redemption of your future weekly payments will be included in your income tax return in the financial year it is received as assessable income.

As part of the settlement, you and employer have agreed to execute a Deed of Settlement and Release (the Deed) to resolve all matters between you in relation to Employment, and the SAET proceedings.

As part of the agreement between you and the employer, you have agreed to relinquish your right to commence proceedings pursuant to Part 5 of the RWA and seek payment of common law damages.

The employer will pay you a lump sum amount, which will be paid as general damages on a without prejudice basis and with a denial of liability in respect of all matters between you; including as consideration for your release from any liability pursuant to Part 5 of the RWA.

As an additional part of the agreement, you will resign from your employment and release the employer from its obligations pursuant to section 18 of the RWA to provide you with suitable employment. They will pay you a lump sum amount, as an employment termination payment.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 10-5

Income Tax Assessment Act 1997 section 10-5

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 6-10

Income Tax Assessment Act 1997 subsection 6-15(1)

Income Tax Assessment Act 1997 section 82-10

Income Tax Assessment Act 1997 subsection 82-10(1)

Income Tax Assessment Act 1997 subsection 82-10(2)

Income Tax Assessment Act 1997 subsection 82-10(3)

Income Tax Assessment Act 1997 section 82-130

Income Tax Assessment Act 1997 subsection 82-130(1)

Income Tax Assessment Act 1997 subparagraph 82-130(1)(a)(i)

Income Tax Assessment Act 1997 paragraph 82-130(1)(b)

Income Tax Assessment Act 1997 paragraph 82-130(1)(c)

Income Tax Assessment Act 1997 section 82-135

Income Tax Assessment Act 1997 paragraph 82-135(c)

Income Tax Assessment Act 1997 paragraph 82-135(d)

Income Tax Assessment Act 1997 paragraph 82-135(i)

Income Tax Assessment Act 1997 section 82-140

Income Tax Assessment Act 1997 section 82-145

Income Tax Assessment Act 1997 section 82-150

Income Tax Assessment Act 1997 subsection 82-150(1)

Income Tax Assessment Act 1997 subsection 82-150(2)

Income Tax Assessment Act 1997 section 102-5

Income Tax Assessment Act 1997 section 104-25

Income Tax Assessment Act 1997 subsection 104-25(2)

Income Tax Assessment Act 1997 paragraph 104-25(1)(d)

Income Tax Assessment Act 1997 paragraph 108-5(1)(a

Income Tax Assessment Act 1997 paragraph 118-37(1)(a)

Summary - Questions 1 & 3 - Amounts received under the Deed of Settlement and Release

The general damages payment proposed to be paid to you is not an ETP.

The lump sum payment which you will receive from the employer is considered to be an ETP provided that you terminate your employment on the date you sign the Deed and receive the payment within 12 months from the date the Deed is signed.

However, the part of the lump sum payment which is considered to be an ETP will be reduced by amounts which relate to unused annual leave, unused long service leave and, if applicable, any payments, benefits or reimbursements for personal injury.

If the ETP part of the lump sum payment includes a tax free component, this component is not assessable income and is not exempt income.

The total of the ETP part of the lump sum payment will be a taxable component of an ETP and you will need to include this in your income tax return for the income year in which you receive the lump sum.

Detailed reasoning

For the general damages payment and the lump sum payment, you receive from your employer to be considered employment termination payments, the payments must satisfy the definition of an ETP set out in subsection 82-130(1) of the Income Tax Assessment Act 1997 (ITAA 1997).

Subsection 82-130(1) of the ITAA 1997 states that a payment is an employment termination payment if:

(a)  it is received by you:

                              i.        in consequence of the termination of your employment; or

                             ii.        after another person's death, in consequence of the termination of the other person's employment; and

(b)  it is received no later than 12 months after termination (except for situations mentioned in subsection (4)); and

(c)   it is not a payment mentioned in section 82-135.

In consequence of the termination of your employment

The Commissioner's view on the meaning of the phrase 'in consequence of; in the context of termination of employment is set out in Taxation Ruling TR 2003/13 Income tax: employment termination payments (ETP): payments made in consequence of the termination of any employment: meaning of the phrase 'in consequence of'.(TR 2003/13).

In paragraphs 5 and 6 of TR 2003/13, the Commissioner states:

5. ...payment is received by a taxpayer in consequence of the termination of the taxpayer's employment if the payment 'follows as an effect of' the termination. In other words, but for the termination of employment, the payment would not have been received by the taxpayer

6. ... The phrase requires a causal connection between the termination and the payment, although the termination need not be the dominant cause of the payment. The question of whether a payment is received in consequence of the termination of employment will be determined by the relevant facts and circumstances of each case.

Based on the information you have provided; you propose to sign the Deed and the employer agrees to pay you a lump sum from the date the Deed is signed.

Applying the Commissioner's view to your situation, it is clear that a connection between the payment of the lump sum and the termination of your employment exists. This is because the Deed requires you to terminate your employment on the date you sign the Deed.

Consequently, you will receive the general damages payment and the lump sum payment 'in consequence of' terminating your employment.

The 12 month rule set out in paragraph 82 130(1)(b) of the ITAA 1997

Paragraph 82-130(1)(b) of the ITAA 1997 specifies that the payment must be received within 12 months of the employee's termination of employment, unless they are covered by a determination exempting them from the '12 month rule'.

As per the facts of this case, you have not yet signed the Deed proposed to you by the employer and the Deed requires you to terminate your employment on the date you sign this Deed.

For this payment to meet the 12-month rule, this payment will need to be received by you within 12 months from termination. In this case, the termination date will be when you sign the Deed.

Payment is not a payment mentioned in section 82-135 of the ITAA 1997

Paragraph 82-130(1)(c) of the ITAA 1997 states that any payments listed in section 82-135 are not classified as ETPs.

Section 82-135 of the ITAA 1997 lists examples of payments which are not ETPs.

In this case, the lump sum which you will receive from your employer includes amounts relating to your entitlements around unused annual leave and unused long service leave.

Hence, payments relating to unused annual and long service leave are not considered to be ETPs as they are covered under paragraphs (c) and (d) of section 82-135 of the ITAA 1997.

Also, based on the nature of the injuries you suffered when working with the employer, we must give consideration to whether or not any part of the lump sum you will receive contains a reasonable capital payment for personal injury as per paragraph 82-135(i) of the ITAA 1997.

Paragraph 82-135(i) of the ITAA 1997 states that an employment termination payment does not include:

a capital payment for, or in respect of, personal injury to you so far as the payment is reasonable having regard to the nature of the personal injury and its likely effect on your capacity to derive income from personal exertion (within the meaning of the definition of income derived from personal exertion in subsection 6(1) of the Income Tax Assessment Act 1936);

Payments that fall within this exclusion are payments or benefits that compensate or reimburse the person for or in respect of the particular injury.

Hence, if any part of the lump sums you receive consists of payments, benefits or reimbursements for personal injury, the amounts relating to such payments are not considered to be ETPs.

Application of section 82-130 of the ITAA 1997 to the payment that your client will receive from the employer

General damages payment

Section 82-135 of the ITAA 1997 provides that certain payments are not ETP's.

Relevantly, paragraph 82-135(i) of the ITAA 1997 states that ETPs do not include:

a capital payment for, or in respect of, personal injury to you so far as the payment is reasonable having regard to the nature of the personal injury and its likely effect on your capacity to derive income from personal exertion (within the meaning of the definition of income derived from personal exertion in subsection 6(1) of the Income Tax Assessment Act 1936);

Payments that fall within this exclusion are payments or benefits that compensate or reimburse the person for, or in respect of, the particular injury.

In considering whether the general damages payment falls within the exclusion set out in paragraph 82-135(i) of the ITAA 1997, consideration must turn to whether you had a 'personal injury', what this payment was actually paid for and whether the payment is reasonable having regard to the nature of the personal injury and its likely effect on one's capacity to derive income form personal exertion.

Personal injury

The term 'personal injury' is not defined in the income tax legislation. However, the term has been interpreted by the Administrative Appeals Tribunal (AAT) in several cases.

Flowing from the AAT decisions, it can be said that there are three types of injury a person can receive:

(a)  behavioural injury - one that involvesphysical injury (internal and/or external) and/or mental injury that is clearly discernible to a qualified medical practitioner;

(b)  non-behavioural injury - hurt, distress, anxiety, et cetera., that flows from the death of, or serious injury to, a relative or close friend; wrongful dismissal; defamation; et cetera. This type of injury may have legal remedies under law or torts (for example, defamation, slander), statute (for example, sexual harassment, discrimination), or contract (for example, employment, professional negligence); and

(c)   property injury - damage to a person's property.

Notwithstanding it may be said all three types of injury may be personal, it is considered only the first type (that is, behavioural injury) falls within the meaning of the term personal injury.

As per the facts of this case, you made a claim for compensation for an injury you sustained in the workplace. By a determination, the insurer accepted your claim for weekly payment of income support and medical and like expenses pursuant to the RWA.

You made a further claim for lump sum compensation for permanent impairment pursuant to section 58 of the RWA. By determination, your claim was rejected. It is quite clear that you suffered a physical injury.

The agreed Heads of Agreement are as following:

a.    That the determination of the Respondent, dated XX Month 20XX, rejecting the Applicant's claim for lump sum compensation pursuant to section 58 of the Act is set aside.

b.    That, pursuant to section 58 of the Act, the Applicant is entitled to a lump sum for non-economic loss in the amount of $XXX,XXX based on a whole personal impairment of XX% in respect of all impairments arising out of the work injury sustained X/XX/20XX.

c.     That the issues in dispute are enlarged, pursuant to section 65 of the South Australian Employment Tribunal Act 2014 (SA) to determine that:

                              i.        Pursuant to section 58 of the Act, the Applicant is entitled to a lump sum for economic loss in the amount of $XXX,XXX based on a whole person impairment of XX% in respect of al impairments arising out of the work injury sustained on XX/XX/20XX.

It is therefore clear that the proposed general damages payment will be made to you to compensate you for your particular personal injury. As such, the payment will be made in respect of your behaviour type personal injury. Further, it is considered that the proposed amount is reasonable compensation for the permanently incapacitating personal injury in your circumstances. Hence, the payment is a capital payment for, or in respect of, personal injury to you.

In view of the above paragraph 82-135(i) of the ITAA 1997 operates to exclude the entire amount of the general damages payment from being an ETP. Therefore, the requirement under paragraph 82-130(1)(c) is not satisfied.

Consequently, no part of the general damages payment is considered to be an ETP, because the payment is specifically excluded under section 82-135.

Lump sum payment

Based on the above criteria, the lump sum you will receive from the employer will be considered an ETP. This is provided that you terminate your employment with the employer on the date you sign the Deed and receive this lump sum within 12 months of termination.

However, the part of the lump sum which includes amounts relating to unused annual leave, unused long service leave and, if applicable, any payments, benefits or reimbursements for personal injury will not be classified as an ETP.

Therefore, the amount of the lump sum payment which will be considered an ETP is $Y less any amounts relating to unused annual leave, unused long service leave and, if applicable, any payments, benefits or reimbursements for personal injury.

Taxation of employment termination payments

An ETP made may be comprised of the following components:

•         the tax fee component; and

•         the taxable component

Subsection 82-10(1) of the ITAA 1997, states that the 'tax free component' of a life benefit termination payment is not assessable income and is not exempt income.

Tax free component is defined in section 82-140 of the ITAA 1997 as so much of the ETP as consists of the following:

(a)  the invalidity segment of the payment with the meaning of section 82-150 of the ITAA 1997;

(b)  the pre-July 83 segment of the payment within the meaning of section 82-155 of the ITAA 1997.

Based on the information you have provided, the ETP portion of lump sum you will receive may have an invalidity segment under section 82-150 of the ITAA 1997.

Subsection 82-150(1) of the ITAA 1997 states that:

An employment termination payment includes an invalidity segment if:

(a) the payment was made to a person because he or she stops being gainfully employed*; and

(b) the person stopped being gainfully employed because he or she suffered from ill-health (whether physical or mental); and

(c) the gainful employment stopped before the person's last retirement day*; and

(d) 2 legally qualified medical practitioners have certified that, because of the ill-health, it is unlikely that the person can ever be gainfully employed in capacity for which he or she is reasonably qualified because of education, experience or training.

*the definition of the terms 'gainfully employed' and 'last retirement day' can be found under subsection 995-1(1) of the ITAA 1997.

In your case, if the ETP portion of the lump sum you receive satisfies all the conditions stated above, it will contain an invalidity segment. The amount of this segment can be worked out by using the formula prescribed under subsection 82-150(2) of the ITAA 1997.

However, if the lump sum you receive does not satisfy the conditions outlined in subsection 82-150(1) of the ITAA 1997, then the ETP portion of your lump sum will not include any tax free components.

Taxable component

Pursuant to section 82-10(2) of the ITAA 1997, the taxable component of a life benefit ETP is assessable income.

In accordance with section 82-145 of the ITAA 1997, the taxable component of an ETP is the amount remaining after deducting the tax free component from the total payment.

For recipients below preservation age, the taxable component of an ETP is taxed at 30% for amounts below the ETP cap amount ($215,000 for the 2020-2021 income year), and at the top marginal rate for amounts above the cap (subsection 82-10(3) of the ITAA 1997).

Summary - Questions 2, 4, 5, 6, & 7

Amounts received under the Deed of Settlement and Release and the Return to Work Act

The lump sum damages payment you will receive is not ordinary income or an ETP. Any capital gain or capital loss arising from the payment will be disregarded under paragraph 118-37(1)(a) of the ITAA 1997. You are not required to include this amount in your income tax return.

The lump sum payment made pursuant to section 53 of the RWA for the redemption of future weekly payments is assessable as ordinary income under section 6-5 of the ITAA 1997. This amount will need to be included in your income tax return in the financial year it is received.

The lump sum payments made pursuant to section 54 of the RWA for the redemption of future medical and like expenses, section 56 for loss of future earning capacity and section 58 for non-economic loss bear none of the characteristics of ordinary income and are capital receipts.

Any capital gain or capital loss arising from these payments will be disregarded under paragraph 118-37(1)(a) of the ITAA 1997. Also, these amounts are not ETPs. Accordingly, you are not required to include any of the amounts to be received under sections 54, 56 and 58 of the RWA in your income tax return.

Detailed reasoning

Ordinary income

Your assessable income includes income according to ordinary concepts, which is called ordinary income (section 6-5 of the ITAA 1997).

Ordinary income has generally been held to include 3 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, and are relied upon, and have an element of periodicity, recurrence or regularity.

Compensation receipts which substitute for income have been held by the courts to be ordinary income; whereas, compensation paid for the loss of a capital asset or amount is regarded as a capital receipt and not ordinary income and is potentially taxable as statutory income.

Statutory income

Your assessable income also includes statutory income amounts which are not ordinary income but are included in your assessable income by another provision of the tax law (section 6-10 of the ITAA 1997).

Section 10-5 of the ITAA 1997 lists those provisions. Included in this list is section 82-10 which deals with ETPs and section 102-5 which deals with capital gains.

In your case you will receive a dissected lump sum settlement with amounts being made pursuant to several sections of the RWA and an amount for general damages under a Deed of Settlement and Release.

In order to determine the taxation treatment, the individual sections must be examined.

Question 2 - General damages lump sum

As discussed above, no part of the general damages payment is considered to be an ETP, because the payment is specifically excluded under section 82-135 of the ITAA 1997.

The general damages payment is not being made to compensate you for the loss of earnings and it is not earned and does not have any element of periodicity, recurrence or regularity; rather it is a one-off, lump sum amount, being paid for, or in respect of, your personal injury.

The payment is therefore not assessable as ordinary income under section 6-5 of the ITAA 1997.

Questions 4, 5, 6, & 7 - Payments received under the Return to Work Act 2014 (SA)

Section 53 of the RWA

The Commissioner's view on the taxation treatment of an amount received on redemption of a liability to make weekly payments of income maintenance pursuant to Part 4 Division 4 of the RWA is expressed in Taxation Determination TD 2016/18 Income tax: is a redemption payment received by a worker under the Return to Work Act 2014 (SA) assessable income of the worker.

TD 2016/18 states that a redemption payment received by a worker made pursuant to subsection 53(1) of the RWA is not made in consequence of termination of employment merely because the termination occurs at about the same time as the payment and there is no necessary connection between a worker's entitlement to the payment under the RWA and the termination of their employment.

The payment is considered to be ordinary income, included in the worker's assessable income under section 6-5 of the ITAA 1997 in the income year it is received.

Accordingly, you will need to include the portion of the settlement sum that relates to the redemption of your entitlement to future weekly payments in your income tax return as assessable income in the income year of receipt.

Section 54 of the RWA

You will receive a lump sum redemption amount pursuant to section 54 of the RWA and the amount received will be in satisfaction of giving up your rights to future medical and other expenses of the kind referred to in section 33.

Such an amount is payable on the conditions that the worker has received appropriate advice on the consequences of the redemption and the future medical services which are likely to be required.

These are rights of a capital nature and the money you will receive is to compensate you for the relinquishment of these rights will similarly be of a capital nature. Accordingly, the payment is not assessable as ordinary income.

For similar reasons to those with respect to the payment under section 53 of the RWA, the payment under section 54 of the RWA is also not considered to be an ETP.

Sections 56 & 58 of the RWA

Further to your settlement agreement, you will receive lump sum payments pursuant to sections 56 and 58 of the RTW Act as a result of being assessed as suffering a degree of permanent impairment (being whole person impairment) from a physical injury sustained at work.

Paragraph 21 of Taxation Determination TD 2016/18 provides guidance on payments made under section 56 of the RTW Act and explains that lump sum payments made under section 56 do not have the character of ordinary income as they are based on a sum prescribed by statute which bears no relationship to the employee's current or former earnings.

Section 58 of the RTW Act entitles a worker to compensation for non-economic loss by way of a lump sum. The amount received is calculated as a proportion of the prescribed sum for the degree of WPI caused by the work injury. It is a one-off lump sum payment bearing none 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 payments received under sections 56 and 58 of the RWA are capital in nature and will not be assessable as ordinary income.

For similar reasons to those with respect to the payment under section 53 of the RWA, the payments under sections 56 and 58 of the RWA are also not considered to be ETPs.

Capital gains tax (CGT)

As discussed above the proposed general damages payment and the amounts to be paid pursuant to sections 54, 56 and 58 of the RWA will be a capital receipt. 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 Income tax: capital gains: treatment of compensation receipts 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 amounts to be received are not in respect of any underlying asset, they will be treated as capital proceeds from a CGT event (CGT event C2) happening to your right to seek compensation.

You acquired the right to seek compensation when you suffered the injury.

Paragraph 108-5(1)(a) of the ITAA 1997 specifically includes a legal or equitable right within the definition of a CGT asset. A taxpayer's right to seek compensation is an intangible CGT asset.

Section 104-25 of the ITAA 1997 discusses CGT event C2 which refers to cancellation, surrender and similar endings. Paragraph 104-25(1)(d) states, in part, that CGT event C2 happens if your ownership of an intangible CGT asset ends by the asset being surrendered or forfeited.

Subsection 104-25(2) of the ITAA 1997 states that the time of the event is:

(a)  when you enter into the contract which results in the asset ending; or

(b)  if there is no contact when the asset ends.

However, paragraph 118-37(1)(a) 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 or you suffer personally.

Therefore, the amounts will not be included in your assessable income under section 102-5 of the ITAA 1997, as any capital gain will be disregarded under paragraph 118-37(1)(a).

Subsection 6-15(1) of the ITAA 1997 provides that if an amount is not ordinary income or statutory income it is not assessable income.

As the lump sum damages payment and the amounts to be received under sections 54, 56 and 58 of the RWA are not assessable as either ordinary or statutory income, you are not required to include the amounts in your income tax return.

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