Edited version of your written advice

Authorisation Number: 1013030209809

Date of advice: 7 June 2016

Ruling

Subject: Compensation payments

Question 1

Will the compensation payments you receive be assessable as ordinary income under section 6-5 o the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

No.

Question 2

Will the compensation payments you receive be assessable as capital gains under the capital gains tax (CGT) provisions of the ITAA 1997?

Answer

No.

Question 3

Will the compensation payments paid by the company reduce the cost base of your property for any future capital gain under section 110-40 or section 110-45 of the ITAA 1997?

Answer

Yes.

This ruling applies for the following period

Year ending 30 June 2016

The scheme commences on

1 July 2015

Relevant facts and circumstances

You own and live on a property. You do not use the property for business activities.

A Company is undertaking activities on land adjacent to your property.

The Company have provided you with a Participation Agreement ('Agreement') to sign.

If you sign the Agreement, you will receive a one-off sign on bonus and an annual fee for the life of the Agreement.

In exchange, you

• acknowledge and agree that the annual fee is adequate compensation for the impacts of the activities on the adjacent land

• will not require or request the Company to provide any treatment measures or landscaping on your property

• construct additional dwellings or obstruct the adjacent activities

• will not object to any development approval or planning or other application made by the Company.

You have not disposed of the land which is a post-CGT asset.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 6-10

Income Tax Assessment Act 1997 Part 3-1

Income Tax Assessment Act 1997 Subsection 110-55(6)

Reasons for decision

Summary

The compensation payments you will receive are considered to be compensation for the permanent damage to, or reduction in value of, your property. The total acquisition costs of the property are to be reduced by the value of the compensation received.

Detailed reasoning

Treatment of annual fee

Compensation payment as ordinary income

Section 6-5 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.

Compensation paid due to loss and damage or a capital asset, or forgoing a right to sue is an isolated transaction. Whether a profit from an isolated transaction is ordinary assessable income according to ordinary concepts depends on the circumstances of the case. Profit from an isolated transaction is generally ordinary income when both of the following elements are present:

(a) the intention or purpose of the taxpayer in entering into the transaction was to make a profit or gain, and

(b) the profit was made, in the course of carrying on a business or in carrying out a business operation or commercial transaction (paragraph 6 of Taxation Ruling TR 92/3).

Neither of the above elements applies in your situation. The compensation payments will be made to compensate you for impact of the activities taking place on land adjacent to your property.

Accordingly, the compensation payments paid under the Agreement do not give rise to income according to ordinary concepts or to a profit arising from a profit-making undertaking or plan pursuant to section 6-5 of the ITAA 1997.

Compensation payments and the capital gains tax (CGT) provisions

Under section 6-10 of the ITAA 1997 some amounts that are not 'ordinary income' are included in a taxpayer's assessable income due to another provision of the tax law. These amounts are 'statutory income'. Statutory income may arise from CGT events as consequence of an eligible claimant being entitled to receive compensation and the loss and destruction of a CGT asset.

Taxation Ruling TR 95/35 provides the Commissioner's view as to the CGT consequences of receiving a compensation payment. The ruling states that it is necessary to identify the underlying asset to which the payment relates and what has occurred to that 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 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.

If an amount of compensation is received by a taxpayer wholly in respect of the disposal of an underlying post-CGT asset, or part of an underlying post-CGT asset, of the taxpayer the compensation represents consideration received on the disposal of that asset. In these circumstances, the Commissioner considers that the amount is not consideration for the disposal of any other asset, such as the right to seek compensation.

If an amount of compensation is received by a taxpayer wholly in respect of permanent damage suffered to a post-CGT underlying asset of the taxpayer or for a permanent reduction in the value of a post-CGT underlying asset of the taxpayer, and there is no disposal of that underlying asset at the time of the receipt, we consider that the amount represents a recoupment of all or part of the total acquisition costs of the asset.

Accordingly, the total acquisition costs of the post-CGT asset should be reduced by the amount of the compensation. No capital gain or loss arises in respect of that asset until the taxpayer actually disposes of the underlying asset. If the compensation amount exceeds the total unindexed acquisition costs (including a deemed cost base) of the underlying asset, there are no CGT consequences in respect of the excess compensation amount.

In this case you will receive compensation payments as a result of activities on land adjacent to your property. These activities impact on the enjoyment of your property and therefore can be said to have resulted in the permanent damage to, or permanent reduction in the value of, the property.

As you did not dispose of all or part of the affected property there are no CGT consequences at the time of entering the Agreement or receiving the compensation payments.

However, the property's acquisition cost will be reduced by the compensation payments received in relation to that property. That is, the cost base of the property will be reduced by the value of the payments and any gain or loss will crystallise at a later time when each property is sold.

Treatment of Sign on Bonus

Payment as ordinary income

As stated above, a payment will be assessable where it is considered to be ordinary income. 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, expected, relied upon and have an element of periodicity, recurrence or regularity.

In your situation, you have received a one-off sign on bonus for entering into the Agreement. This payment was in addition to the annual fee described in the Agreement.

The payment does not have the characteristics of ordinary income as it has not been earned, could not be said to be relied upon and does not relate to a business activity. Any expectation of receiving the payment would be related to the Agreement negotiation process.

Accordingly, the sign on bonus is not assessable as ordinary income.

Payment in relation to the CGT provisions

The sign on bonus is part of the Agreement and thus is considered to be a compensation payment for agreeing to the Agreement's conditions.

It is considered that the agreement completion compensation has been paid to compensate you for the permanent damage to, or permanent reduction in value of, your property. Accordingly, the amount of the payment reduces the cost base of the property and any gain or loss will crystallise at a later time when the property is sold or disposed of.