ATO ID 2004/912: Portfolio transfer of general insurance liabilities: deduction for consideration paid in respect of indirect settlement costs
Date of decision: 1 November 2004
Year of income: Year ended 31 December 2004
Business line: Public Groups and International

Issue
Can a general insurance company claim a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for the indirect claims settlement component of the consideration given to cede its outstanding claims liabilities under a portfolio transfer?

Decision
Yes. A general insurance company can claim a deduction under section 8-1 of the ITAA 1997 for the indirect claims settlement component of the consideration given to cede its outstanding claims liabilities under a portfolio transfer.

Facts
The taxpayer is a general insurance company for the purposes of section 995-1 of the ITAA 1997 and the Insurance Act 1973 . The taxpayer entered into a portfolio transfer arrangement whereby the whole of its insurance liabilities are to be transferred to another insurance company (the transferee). The taxpayer intends to cease its insurance operation after the portfolio transfer. The portfolio transfer is completed in accordance with the provisions of the Insurance Act. The transferee is also an authorised general insurer under the Insurance Act. Under the portfolio transfer, the taxpayer is required to give consideration to the transferee for assuming the outstanding claims liability under its general insurance policies as calculated for taxation purposes as well as a payment in respect of indirect claims settlement costs. Indirect claims settlement costs are the general expenses of running and administering a general insurance company's claims department.

Reasons for decision
Summary: Section 8-1 of the ITAA 1997 states that a loss or outgoing is deductible provided that it is 'necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income.' A loss or outgoing is not deductible under section 8-1 of the ITAA 1997 if it is denied under paragraph 8-1(2)(a) of the ITAA 1997 because it is a loss or outgoing of a capital nature. The deductibility of the payment for indirect settlement costs can be determined in light of the High Court's decision in G.P. International Pipecoaters Pty Ltd v. Federal Commissioner of Taxation (1990) 170 CLR 124; 90 ATC 4413; (1990) 21 ATR 1 ( Pipecoaters ). In the Pipecoaters decision the court stated: The character of expenditure is ordinarily determined by reference to the nature of the asset acquired or the liability discharged by the making of the expenditure, for the character of the advantage sought by the making of the expenditure is the chief, if not the critical, factor in determining the character of what is paid. The character of a payment will 'take the quality of an outgoing of a capital nature or of an outgoing on account of revenue from the cause or the purpose of incurring the expenditure' (Dixon J in Hallstroms Pty Limited v. Federal Commissioner of Taxation (1946) 72 CLR 634 (1946) 8 ATD 190; (1946) 3 AITR 436). Accordingly, the payment for indirect settlement costs takes on the character from the purpose for which the expenditure was incurred. The purpose of the expenditure is to allow the taxpayer to transfer its insurance related liabilities, which are on revenue account. This indicates that the expenditure is of a revenue nature. The nature of a payment as a one off payment does not prejudice treatment as an outgoing on revenue account under section 8-1 of the ITAA 1997 (McTiernan J in Foley Bros Pty Ltd v. FC of T (1965) 13 ATD 474; (1965) 3 AITR 436). Accordingly, the indirect claims settlement component of the consideration paid by the taxpayer to cede its outstanding claims liabilities under a portfolio transfer is deductible under section 8-1 of the ITAA 1997.

Legislative references: Income Tax Assessment Act 1997 section 8-1 paragraph 8-1(2)(a) section 995-1
Case references: G P International Pipecoaters Pty Ltd v. Federal Commissioner of Taxation (1990) 170 CLR 124 90 ATC 4413 21 ATR 1
Related ATO interpretative decisions: ATO ID 2004/910 | ATO ID 2004/911 | ATO ID 2004/913 | ATO ID 2004/914 | ATO ID 2004/915 | ATO ID 2004/916 | ATO ID 2004/917 | ATO ID 2004/918 | ATO ID 2004/919 | ATO ID 2004/920 | ATO ID 2004/921 | ATO ID 2004/922 | ATO ID 2004/923 | ATO ID 2004/924 | ATO ID 2004/925 | ATO ID 2004/926 | ATO ID 2004/927 | ATO ID 2004/928 | ATO ID 2004/929 | ATO ID 2004/930
Subject references: General insurance General insurance industry