Assessability of lump sum payment for permanent injury occurring at work

Is a lump sum payment received by a taxpayer for permanent injury occurring at work, assessable under section 6-5 or section 102-5 of the Income Tax Assessment Act 1997 (ITAA 1997)?

No. A lump sum payment received by the taxpayer for permanent injury occurring at work is not assessable under section 6-5 of the ITAA 1997 as it is not ordinary income. Nor is it assessable under section 102-5 of the ITAA 1997 as subparagraph 118-37(1)(a)(i) of the ITAA 1997 disregards a capital gain made from a capital gains tax (CGT) event where the CGT event relates directly to compensation or damages received for any 'wrong or injury you suffer in your occupation'

The taxpayer has an income protection insurance policy.

The taxpayer was injured at work which resulted in permanent impairment.

The taxpayer received a lump sum payment in respect of permanent impairment from the insurance company.

Subsection 6-5(2) of the 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.

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, and • have an element of periodicity, recurrence or regularity.

The lump sum payment is not earned by the taxpayer as it does not directly relate to services performed. Rather the lump sum payment relates to the loss of physical abilities. The payment is also a one-off payment and thus does not have an element of recurrence or regularity. Although the payment can be said to be expected, and perhaps relied upon, this expectation arises from the investment in insurance, rather than from a relationship with personal services performed. Thus, the lump sum payment is not ordinary income and is therefore not assessable under subsection 6-5(2) of the ITAA 1997.

Section 6-10 of the ITAA 1997 provides that a taxpayer's assessable income includes amounts of statutory income, which are amounts that are not ordinary income but are included in assessable income by another provision.

Amounts received in respect of personal injury which are not direct compensation for loss of income will usually be capital in nature. Any net capital gain arising from the receipt, worked out in accordance with the CGT provisions of the ITAA 1997 is potentially assessable under section 102-5 of the ITAA 1997 as statutory income.

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.

As the amount received by the taxpayer is not in respect of any underlying asset, the whole of the settlement amount is treated as capital proceeds from a CGT event (CGT event C2) happening to the taxpayer's right to seek compensation.

However, subparagraph 118-37(1)(a)(i) of the ITAA 1997 disregards a capital gain made from a CGT event relating directly to compensation or damages received for any 'wrong or injury you suffer in your occupation'. Therefore, any capital gain made from the CGT event happening to the taxpayer's right to seek compensation is disregarded under paragraph 118-37(1)(a) of the ITAA 1997. It is thus not assessable under section 102-5 of the ITAA 1997 as statutory income.

Subsection 6-15(1) of the ITAA 1997 provides that if an amount is not ordinary or statutory income it is not assessable income. Consequently no part of the amount received is included in the taxpayer's assessable income.

Date of Amendment Part Comment 28 August 2015 Title Amend for clarity Decision Update reference to subparagraph 118-37(1)(a)(i) Otherwise amend for clarity Facts Amend for clarity Reasons for Decision Update reference to subparagraph 118-37(1)(a)(i) Otherwise amend for clarity Legislative References Insert reference to section 6-10 Delete reference to section 6-20 Update reference to subparagraph 118-37(1)(a)(i)

Date of Amendment | Part | Comment

28 August 2015 | Title | Amend for clarity

Decision | Update reference to subparagraph 118-37(1)(a)(i) Otherwise amend for clarity

Facts | Amend for clarity

Reasons for Decision | Update reference to subparagraph 118-37(1)(a)(i) Otherwise amend for clarity

Legislative References | Insert reference to section 6-10 Delete reference to section 6-20 Update reference to subparagraph 118-37(1)(a)(i)