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Ruling

Subject: Compensation payment

Question 1

Are you assessable on the compensation payment you received?

Answer

No.

Question 2

Will any capital gains arising from the compensation payment be disregarded?

Answer

Yes.

This ruling applies for the following period

Year ended 30 June 2011

The scheme commenced on

1 July 2010

Relevant facts

You lodged a complaint with the relevant authority alleging that you had been subjected to victimisation and unlawful discrimination in the course of your employment.

You requested that the complaint be referred to the relevant Tribunal.

You agreed to settle the complaint in order to avoid the cost of litigation.

Under the agreement, you were paid an amount.

Relevant legislative provisions

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

Income Tax Assessment Act 1997 Paragraph 118-37(1)(b)

Reasons for decision

Subsection 6-5(2) of the Income Tax Assessment Act 1997 (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.  

In your case, the payment you have received was not from rendering personal services, income from property or income from carrying on a business. Although the payment may have been expected and relied upon, it was not earned and was received in a lump sum. Therefore, the payment you received is not assessable as ordinary income.

Capital gains tax (CGT)

Amounts received in respect of personal injury which are not direct compensation for loss of income will usually be capital in nature and are potentially taxable as statutory income under the CGT provisions of the ITAA 1997.

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.

However, paragraph 118-37(1)(b) of the ITAA 1997 disregards a capital gain made from a CGT event where the amount relates to compensation or damages received for any 'wrong, injury or illness you suffer personally'. Therefore, any capital gain that may arise from the receipt of the lump sum payment for victimisation and unlawful discrimination will be disregarded.