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Edited version of your written advice
Authorisation Number: 1013003415100
Date of advice: 27 April 2016
Ruling
Subject: Assessability of your lump sum payment
Question
Is your lump sum payment assessable as ordinary income or as a capital gain?
Answer
No.
This ruling applies for the following period
Year ending 30 June 2016
The scheme commenced on
1 July 2015
Relevant facts
You were involved in a accident.
At the time of the accident you were receiving your income from a WorkCover claim.
You have received a lump sum as compensation payment for injuries sustained from this accident. The sum includes interest, outstanding special damages, Medicare Australia payment and your legal costs.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 6-5
Income Tax Assessment Act 1997 Section 6-10
Income Tax Assessment Act 1997 Paragraph 118-37(1)(b)
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 a taxpayer includes ordinary and statutory income derived directly and 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
• have an element of periodicity, recurrence or regularity.
The lump sum payment you accepted is not income from rendering personal services, income from property or income from carrying on a business.
The payment is also not earned, expected, relied upon and is a one off payment and thus it does not have an element of recurrence or regularity.
Your settlement is a result of you making a claim for Compulsory Third Party insurance (CTP) following a motor vehicle accident (MVA).
It is not a lump sum payment which substitutes for an income stream but rather for entering into a settlement agreement with the insurer under the policy. The lump sum payment is a capital receipt and is not ordinary income. Therefore the amount is not assessable under section 6-5 of the ITAA 1997.
Capital gains tax
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.
Receipt of a lump sum payment may give rise to a capital gain (statutory income). However paragraph 118-37(1)(b) of the ITAA 1997 disregards payment or receipts for capital gains purposes where the amount relates to compensation or damages a person receives for any personal wrong, injury or illness. The lump sum you received is considered to be exempt from CGT under paragraph 118-37(1)(b).
Conclusion
As the amount is not ordinary or statutory income it is not assessable income. Therefore no part of the settlement amount is required to be included in your income tax return.