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Ruling

Subject: Capital gains tax

Questions:

1. Are the proceeds received in compensation for the acquisition of an easement over your land assessable as ordinary income under section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer:

No

2. Are the proceeds received in compensation for the acquisition of an easement over your land assessable under the capital gains tax (CGT) provisions of the ITAA 1997?

Answer:

Yes

3. Will the cost base of the land need to be modified to take into account the acquisition of an easement over your land?

Answer:

Yes

This ruling applies for the following period

Year ending 30 June 2013

The scheme commenced on

1 July 2012

Relevant facts

You own a 50% interest in land you acquired prior to 20 September 1985.

The property is currently used as a commercial property.

A private company has acquired an easement over your land.

The company's project has been approved as an infrastructure facility of significance (IFS) by the state government.

A proponent of an approved IFS must first consult and negotiate with landowners and/or native title holders to acquire the land needed for the facility by agreement on commercial terms.

The state government may, on behalf of the proponent, compulsorily acquire the land needed for a private infrastructure facility, if agreement with the owners of the land and/or native title holders cannot be reached.

Land is compulsorily acquired under the processes set out in the land acquisition legislation of the states.

As an approved IFS, the State Government had the authority to compulsorily acquire the easement, however, the easement was acquired by agreement with the company.

You will receive an amount in compensation for the reduction in value of your land due to the easement.

You will retain ownership of the land and easement.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 104-10

Income Tax Assessment Act 1997 Section 112-30

Income Tax Assessment Act 1997 Subsection 112-30(3)

Reasons for decision

Assessable as ordinary income

Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of a taxpayer includes income according to ordinary concepts (ordinary income).

Ordinary income has generally been held to include three categories, namely, income from rendering personal services, income from property (rent) 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, you have not earned the lump sum payment as it does not directly relate to services performed. It is not income from property (rent) or from carrying on a business as you are not involved in either of these activities. The payment is also a one-off payment and thus does not have an element of recurrence or regularity. In addition, the payment is neither expected nor relied upon.

Compensation receipts which substitute for income have been held by the courts to be income under ordinary concepts. On the other hand, if the compensation is paid for the loss of a capital asset or amount then it will be regarded as a capital receipt and not ordinary income. The compensation payment you have received is not compensation for the loss of income, but compensation for the loss of a capital asset (part of your ownership your rights). Accordingly, the lump sum payment is not considered ordinary income and is therefore not assessable under section 6-5 of the ITAA 1997.

Assessable under capital gains tax provisions

Amounts received which are not direct compensation for loss of income, will usually be capital in nature and are potentially taxable as statutory income under the capital gains tax (CGT) provisions of the ITAA 1997.

Taxation Rulings TR 95/35 and TR 97/3 discuss the capital gains treatment of compensation receipts. Taxation ruling TR 97/3 extends the application of TR 95/35 and should be read in conjunction with that ruling. TR 97/3 specifically deals with compensation received by landowners from public authorities. In your case, the company is not a public authority. However, as the project has been approved as an IFS, the State Government has the power to compulsorily acquire the easement were no agreement can be reached between the parties. Therefore, TR 97/3 will have direct application in this case.

Paragraphs 6 through 10 of TR 97/3 state:

…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).

The acquisition of an easement by a public authority using the compulsory process provided in the relevant statute culminates in a declaration by notice in the Gazette that the easement has been acquired. However, it is possible that a public authority may acquire an easement by agreement with the landowner. Because the grantee of the easement (the public authority) has available, if it chooses to exercise it, the power to compulsorily acquire the easement, the amount received, in our view, takes on the same character as compensation for a compulsorily acquired easement. It is therefore appropriate that Part IIIA apply in the same way, that is, the consideration (compensation) is paid in respect of the part disposal of the land and not in respect of the grant of the easement.

In your case, you will receive compensation from the company, for the reduction in your land value due to the acquisition of an easement over part of your land. The State Government had the authority to compulsorily acquire the easement on behalf of the company if necessary. You still retain ownership of the easement.

As per ruling TR 97/3, the compensation payment is considered to be in respect of the loss of part of your rights of ownership which constitutes the disposal of part of the underlying land.

As such, CGT event A1 (the disposal of a CGT asset) has occurred. Section 104-10 of the ITAA 1997 provides that the time of the A1 event is taken to have occurred when you enter into the contract for the disposal of the easement or, if there is no contract, when the change of ownership occurs.

Accordingly, if the capital proceeds received in compensation exceed the cost base of the asset in question, you would be considered to have made a capital gain, and it will be assessable under the capital gains tax provisions.

Subsection 104-10(5) of the ITAA 1997, however, contains an exception, where any capital gain or capital loss made is disregarded if the asset was acquired before 20 September 1985.

In your case, you acquired the property prior to 20 September 1985; therefore, any capital gain or capital loss you make on the disposal will be disregarded for CGT purposes.