Issue
Can a general insurance company claim a deduction under section 321-25 of Schedule 2J to the Income Tax Assessment Act 1936 (ITAA 1936) for the consideration paid to another general insurance company because of a portfolio transfer in respect of reinsurance recoveries payable under a reinsurance contract which is subsequently cancelled?
Decision
Yes. A general insurance company can claim a deduction under section 321-25 of the ITAA 1936 for the consideration paid to another general insurance company because of a portfolio transfer in respect of reinsurance recoveries payable under a reinsurance contract which is subsequently cancelled.
Facts
The taxpayer is a general insurance company for the purposes of section 995-1 of the Income Tax Assessment Act 1997 (ITA !((&) and the Insurance Act 1973.
The taxpayer has a reinsurance contract with another general insurance company (the reinsured). The purpose of the reinsurance contract is to reduce the reinsured's exposure to claims and to be indemnified against some part of the claims.
The taxpayer entered into a portfolio transfer arrangement whereby it assumed the insurance liabilities of the reinsured. As a result, the reinsurance contract between the taxpayer and the reinsured was cancelled.
The taxpayer, on cancellation of the reinsurance contract, is required to settle its obligations to the reinsured and pay out moneys owing under the reinsurance contract. Normally these moneys, commonly referred to in the industry as reinsurance recoveries, are not payable until the reinsured's obligation against which it seeks to be indemnified is quantified.
Reasons for Decision
Under section 321-25 of the ITAA 1936, 'a general insurance company can deduct amounts paid during the year of income in respect of claims under general insurance policies.'
The word 'claim', when used in an insurance policy has different meanings depending on the context ( Drayton and Ors v. Martin and Ors (1996) 9 ANZ Insurance Cases 61,322 at 76,590). Generally, the word is defined, amongst other things, as, 'submit a request for payment under an insurance policy' ( The Australian Oxford Dictionary , 1999, Oxford University Press, Melbourne).
Therefore, a 'claim' entails a policyholder's legal right to be indemnified or compensated by the general insurance company in accordance with the terms of the insurance policy. The cost of meeting the claims is reported by the general insurance company as outstanding claims liability and is measured as the present value of the expected future payments.
The condition for deductibility under section 321-25 of the ITAA 1936 is whether the amount paid is 'in respect of claims under general insurance policies'.
The words 'in respect of' which precede 'claims under general insurance policies' were interpreted by the High Court in Technical Products Pty Ltd v. State Government Insurance (Q) (1989) 167 CLR 45 in the following passage: The words "in respect of" have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear...That nexus will not, however, exist unless there be some discernible and rational link...
Therefore, an amount is paid 'in respect of claims' under general insurance policies, where, in the context in which section 321-25 of the ITAA 1936 appears, there is a sufficient nexus or material connection, and a discernible and rational link, between the amount and claims under general insurance policies.
When the reinsurance contract is cancelled, the recoveries receivable for the period up to and including the cancellation date are paid to the reinsured. The amount is paid to indemnify the reinsured for the risks that the taxpayer accepted under the insurance contracts. The payment therefore is directly related to claims under general insurance policies and satisfies the test under section 321-25 of the ITAA 1936.
Accordingly, the amount paid by the taxpayer to the reinsured is deductible under section 321-25 of the ITAA 1936.
From 1 July 2010, the Tax Laws Amendment (Transfer of Provisions) Act 2010 repealed Schedule 2J of the ITAA 1936 and rewrote those provisions into Division 321 of the ITAA 1997. The wording was slightly altered to adhere to the drafting approach taken in the ITAA 1997, but as outlined in the explanatory memorandum, there has been no change in meaning of the rewritten provisions.
Therefore, from 1 July 2010, all references to Section 321-25 of the ITAA 1936 should be read as referring to section 321-25 of the ITAA 1997.