Edited version of your written advice

Authorisation Number: 1051387014312

Date of advice: 22 June 2018

Ruling

Subject: Assessable income - lump sum payment

Question 1

Is the lump sum settlement payment assessable as ordinary income?

Answer

Yes.

Question 2

Is the lump sum payment received from your income protection policy exempt under section

118-37 of the Income Tax Assessment Act 1997?

Answer

No.

This ruling applies for the following period:

Year ending 30 June 20xx

The scheme commences on:

1 July 20xx

Relevant facts and circumstances

You were deemed unfit for work to due to an injury.

You have an income protection policy. The purpose of the policy is to provide an income if you are unable to work because of sickness or injury.

You made a claim under your income protection policy and began receiving monthly benefit payments.

You decided that you did not want to continue to receive the monthly benefit payments. You approached your insurer and put forward a proposal for a payout as a final settlement of your claim.

On XXXX your insurer confirmed they had finalised your claim and the final payment had been processed.

You received the final lump sum payment from your insurer in the XXXX financial year.

The lump sum payment will finalise your claim for monthly payments.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

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

Income Tax Assessment Act 1997 Section 6-10

Income Tax Assessment Act 1997 Section 118-37(1)

Reasons for decision

Ordinary Income

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.

An amount paid to compensate for loss generally acquires the same nature of what it is substituting (FC of T v. Dixon (1952) 86 CLR 540; (1952) 5 ATR 443; 10 ATD 82). Compensation payments which substitute income have been held by the courts to be income under ordinary concepts (FC of T v. Inkster (1989) 20 ATR 1516; 89 ATC 5142; Tinkler v. FC of T (1979) 10 ATR 411; 79 ATC 4641; Case Y47 (1991) 22 ATR 3422; 91 ATC 433).

Ordinary income has 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 received as a product of any employment, services rendered, or any business;

● are earned;

● are received regularly or periodically;

● are expected; and

● are relied upon.

It is not necessary for all of these characteristics to be present for an amount to be considered ordinary income. A lump sum payment is generally classified as ordinary income if it is simply a lump sum made up of periodic income payments but paid in arrears to cover a certain period.

Income protection policies provide for periodic payments in the event of loss of income caused by the insured becoming disabled through sickness or injury. These payments are assessable as income under section 6-5 of the ITAA 1997, as they are paid to take the place of lost earnings.

This view has been subsequently confirmed in Sommer v. FC of T 2002 ATC 4815; (2002) 51 ATR 102 (Sommer’s case) where a lump sum paid to a doctor in settlement of his claim under an income protection policy was assessable on the basis that it was in substitution for his original claim under the policy for lost income. The taxpayer argued that the amount comprised an undissected aggregation of both income and capital and, therefore should be treated as capital.

The taxpayer’s case was dismissed in the Federal Court and it was held that the commercial reality of the payment was that it was a full and final settlement of all the taxpayer’s income claims. The fact that it was a lump sum did not change its revenue nature.

The Sommer decision was followed in Gorton v. FC of T 2008 ATC 10-018, where a lump sum payment received by a former medical practitioner from his insurer in settlement of his professional income replacement claims was held to be assessable income.

Your situation is similar to the above cases as the lump sum you will receive will be a payout of your remaining benefit and finalisation of your claim.

The commutation of the monthly payments into a lump sum does not change its character of compensation for loss of income. The lump sum is a receipt of income only, that is, there is no capital component in the payment.

Therefore, the lump sum payment you will receive from the insurer is an advance of your future monthly payments and is assessable under section 6-5 of the ITAA 1997 as ordinary income in the year it is received.

The capital gains tax (CGT) provisions do not apply to the lump sum finalisation payment as it is otherwise included in your assessable income, as ordinary income.

CGT Exemption

The amount you received would also be assessable as a capital gain. However, section 118-20 of the ITAA 1997 reduces a capital gain by any amount that is assessable under another provision of the Act.

Your lump sum payment received from the insurer is a final payment representing an advance of your future monthly payments you are entitled to under your income protection policy. As stated above, the payment will be assessable as ordinary income under section 6-5 of the ITAA 1997 and no amount is assessable as a capital gain. Therefore the exemption contained in section 118-37 of the ITAA 1997 cannot apply.