Private ruling: Capital Gains Tax and mining compensation
Date of advice: 25 October 2017
Published: March 2018
Ruling period: Year ended 30 June 2018 | Year ending 30 June 2019 | Year ending 30 June 2020 | Year ending 30 June 2021 | Year ending 30 June 2022 | Year ending 30 June 2023 | Year ending 30 June 2024 | Year ending 30 June 2025 | Year ending 30 June 2026 | Year ending 30 June 2027
Date scheme commenced: 1 July 2017

Ruling: Q1: Will the compensation payments paid by the company be assessable as ordinary income under section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997)? | A1: No. | Q2: Will the compensation payments paid by the company be assessable as capital gains under the capital gains tax (CGT) provisions of the ITAA 1997? | A2: No. | Q3: Will the compensation payments paid by the company reduce the cost base of the relevant property for any future capital gain under section 110-40 or section 110-45 of the ITAA 1997? | A3: Yes.

Relevant facts and circumstances: You own land. During the 2017-18 financial year you intend to enter into a conduct and compensation agreement (‘CCA’) with Entity X. Under the CCA, Entity X and related parties will carry out activities on your land and you will be compensated effects of these activities. By signing the CCA, you will acknowledge that the compensation compensates for all of the activities including the loss of use of part of the land, all impacts of noise, light, dust, odour, vibration, vehicular movements and loss of amenity generally. You will receive the following compensation under the CCA: ● an upfront payment for the first year of the CCA ● an annual payment commencing on the first anniversary of the CCA and continuing for the term of the CCA, and ● compensation for legal, valuation and accounting costs reasonably and necessarily incurred by you in respect of the negotiation of the CCA. The CCA is being negotiated in accordance with the relevant legislation. You have no intention to dispose of the land at this time.

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 under the CCA are considered to be compensation for the permanent damage to, or reduction in value of, the property. The total acquisition costs of the property are to be reduced by the value of the compensation received. | Detailed Reasoning - Compensation payments under the CCA: 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 of a capital asset, or forgoing a right to sue, in the process of a petroleum authority undertaking petroleum activities on a taxpayer’s land 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 apply in your situation. The compensation payments will be made in accordance to the legislative provisions of the petroleum legislation. Accordingly, the compensation payments paid under the CCA 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 compensation payments will be made as a result of activities being carried out on your property. These activities will result in the permanent damage to, or permanent reduction in the value of, the property. As you do not intend to dispose of all or part of the affected property, there are no CGT consequences at the time of entering the CCA 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 the property is sold.