Edited version of your written advice

Authorisation Number: 1012742978225

Ruling

Subject: Mining compensation

Question 1

Will the compensation payments be assessable as ordinary income as defined by section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

No

Question 2

Will payments received for water be assessable as ordinary income as defined by S6-5 of the ITAA 1997?

Answer

No

Question 3

Will compensation payments represent capital proceeds of any CGT event in Division 104 of the ITAA 1997?

Answer

No

Question 4

Will payment received for water represent capital proceeds of any CGT event in Division 104 of the ITAA 1997?

Answer

No

Question 5

Will the compensation payment reduce the cost base of the relevant property for any future capital gain under section 110-40 or s110-45 of the ITAA 1997?

Answer

Yes

Question 6

Will the payments for water reduce the cost base of the relevant property for any future capital gain under section 110-40 or s110-45 of the ITAA 1997?

Answer

Yes

Question 7

To the extent that any recoupment of purchase price exceeds the cost base of your property will it be a taxable capital gain?

Answer

No

This ruling applies for the following period(s)

Income year ended 30 June 2014

Income year ended 30 June 2015

Income year ended 30 June 2016

Income year ended 30 June 2017

Income year ended 30 June 2018

The scheme commences on

1 July 2013

Relevant facts and circumstances

You are the landowner of property which you use carry on the business of primary production.

You have entered into a CCA under a statutory authority with a company to compensate you for the construction and use of infrastructure on your property.

The CCA details the agreed authorised activities relevant to the damages caused.

You have also entered into a water purchase agreement with the company.

The CCA along with the relevant section of the statutory authority provides that you have been compensated for the following heads of damage:

• deprivation of possession of its surface;

• diminution of its value;

• severance of any part of the land from other parts of the land;

• any cost, damage or loss arising from the carrying out of the activities.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 110-40

Income Tax Assessment Act 1997 section 110-45

Income Tax Assessment Act 1997 Division 104

Reasons for decision

The statutory authority establishes a statutory scheme to provide compensation to landowners for the impacts of petroleum and gas production activities; and requires the relevant parties to enter into a CCA. The purpose of the scheme is to ensure that landowners are not financially disadvantaged by activities carried out on their property. Landowners are entitled to compensation for any compensatable effects related to the impact of the activities on their business operations and land use.

Payments pursuant to the statutory authority are generally treated as capital in nature where those amounts are compensation payments for compensatable effects. It is considered that characterising the payments as capital in nature is in keeping with the ATO view on the taxation treatment of compensation receipts contained in Taxation Ruling TR 95/35. For the purposes of TR 95/35 it is necessary to identify the underlying asset. TR 95/35 defines an underlying asset:

The underlying asset is 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.

The decisions in Nullaga Pastoral Company Pty Ltd v FC of T 78 ATC 4329; (1978) 8 ATR 757 and Barrett v Federal Commissioner of Taxation [1968] HCA 59; (1968) 118 CLR 666; 15 ATD 149; 10 AITR 685 are relevant to identifying the underlying asset in the current context. In both of those cases the landholders were conducting ongoing successful farming operations. The payments were held to be compensation for damage to property which formed part of the profit-yielding structure of the landholders.

Paragraph 6 of TR 95/35 provides that it is the Commissioner's view that where an amount of compensation is received wholly in respect to permanent damage suffered to a CGT asset of the taxpayer and there is no disposal of the asset, the compensation represents a recoupment of purchase price. The total acquisition costs for the relevant asset should be reduced by the amount of compensation received under section 110-40 or 110-45 of the ITAA 1997. As per the Commissioner view in paragraph 133 the cost base of the asset can only be reduced to nil, and there is no taxation consequence of the excess recoupment.

Having regard to your entire factual circumstance, it is considered that the compensation has been provided for the permanent damage caused by the activities on your property. As the property is not being disposed of, the compensation will reduce the cost base of the property for any future capital gain.

Under the statutory authority the tenement holders are given the power to access water resources on the land for purposes incidental to the activities. It is accepted that the reduction in the volume and quality of water on the land will permanently reduce the value of the land. Consequently it is considered that any payments for water will have sufficient nexuses between the compensatable effects under the statutory authority and will result in a reduction of cost base as per paragraph 6 of TR 95/35.