Private ruling: Commutation of income protection insurance policy
Date of advice: 23 June 2015
Published: June 2015
Ruling period: Year ended 30 June 2016 | Year ended 30 June 2017
Date scheme commenced: 1 July 2015

Ruling: Q1: Is a lump sum paid as a full commutation of your income protection insurance policy assessable income? | A1: Yes

Relevant facts and circumstances: You were injured in a sporting accident. As a result, you are currently receiving regular payments from an income protection policy. These amounts are considered assessable income as they are replacing your lost wages. Your insurer has offered to pay you a lump sum amount in final settlement of your claim.

Relevant legislative provisions: Income Tax Assessment Act 1997 Section 6-5 | Income Tax Assessment Act 1997 subsection 6-5(2) | Income Tax Assessment Act 1997 section 104-25 | Income Tax Assessment Act 1997 section 118-37 | Income Tax Assessment Act 1997 section 118-20 | Income Tax Assessment Act 1997 Division 54 | Explanatory Memorandum to the Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002

Reasons for decision: Summary: The lump sum payment you received is assessable as ordinary income or statutory income. Furthermore, the ending of your right to take legal action triggered CGT event C2. However the capital gain will be reduced by the amount of the income assessed to you as ordinary income. The capital gain cannot be otherwise disregarded. *All legislative references contained are to the Income Tax Assessment Act 1997. | Detailed Reasoning - Introduction: Generally, an amount received in relation to an insurance policy for income protection would be assessable either as: • ordinary income under section 6-5 (whether received as regular payments or a lump sum) • statutory income under section 15-30 (where a lump sum insurance payment is paid in lieu of regular, otherwise assessable payments and it is not itself ordinary income) • a capital gain as CGT event C2 will also happen, but any resulting capital gain is disregarded to the extent that it is assessed under another provision (section 118-20). | Detailed Reasoning - Ordinary income: Periodic income protection payments Subsection 6-5(2) provides that the assessable income of an Australian resident includes income according to ordinary concepts (ordinary income) derived directly or indirectly from all sources, whether in or out of Australia, during the income year. Based on case law, it can be said that ordinary income generally includes receipts that are earned, expected, relied upon, and have an element of periodicity, recurrence or regularity. Payments of salary and wages are income according to ordinary concepts and are included in your assessable income. An amount paid to compensate for loss generally acquires the character of that for which it is substituted ( 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 according to ordinary concepts ( FC of T v. Inkster 89 ATC 5142; (1989) 20 ATR 1516 and Tinkler v. FC of T 79 ATC 4641; (1979) 10 ATR 411). Therefore periodic payments received during a period of total or partial disability under an income protection policy are included in your assessable income on the same principle as salary and wages. Lump sum payments Whether the redemption or conversion of an entitlement to periodic payments to a lump sum affects assessability as ordinary income was considered in Coward v. FC of T 99 ATC 2166; (1999) 41 ATR 1138. In that case Mathews J found that payments made to replace income take on the character of the payment they replace and that the method of payment does not alter the character of the payment. Mathews J held that as the weekly compensation payments made to the appellant until he turned 65 were paid for loss of earnings and thus constituted income, a lump sum representing a redemption of those future weekly payments was also income. This view was subsequently confirmed in Sommer v FC of T 2002 ATC 4815; 51 ATR 102 ( Sommer's case ). The case involved a medical practitioner who had taken out an income protection policy. Following the rejection of the taxpayer's claim for income replacement payments of $4,000 per month, the matter was settled out of court with the taxpayer receiving a lump sum. The taxpayer argued that the amount was a payment of capital as it was paid in the consideration of the cancellation of the policy, and the surrender of his rights under it or that the payment was capital as it was an undissected aggregation of both income and capital. In dismissing the taxpayer's appeal it was held that the payment was in settlement of income claims of the taxpayer in circumstances where the purpose of the insurance policy was to fill the place of a revenue receipt. As a result, the payment was clearly on a revenue account. The fact that the payment was received in one lump sum did not change its revenue character. | Detailed Reasoning - Statutory income: Section 15-30 operates to include in a taxpayer's assessable income any amount received by way of insurance or indemnity for the loss of an amount if the lost amount would have been included in the taxpayer's assessable income but was not assessable under section 6-5. | Detailed Reasoning - Capital gains: While a payment may be properly characterised as ordinary income, a capital gain may still be made and in answering whether a payment is included in your assessable income, it is appropriate to examine these provisions also. However, it should be immediately noted the anti-overlap provisions contained in section 118-20 operate generally to reduce any capital gain by the amount of that income which has been otherwise assessed to you as ordinary income under section 6-5 or statutory income under section 15-30. Part 3-1 contains the capital gains and capital loss provisions commonly referred to as CGT (capital gains tax). You make a capital gain or capital loss if a CGT event happens in respect of a CGT asset. Section 104-25 provides that CGT event C2 happens on the ending of the right to seek compensation, that is, the right to take legal action. The lump sum amount you receive will be capital proceeds for this CGT event and a capital gain will usually arise. The net capital gain you make is then included in your assessable income under section 102-5 (after being reduced by the aforementioned overlap provisions as required). CGT Exemption Paragraph 118-37(1) (b) allows a capital gain to be disregarded if it is compensation or damages you receive for any wrong, injury or illness you suffer personally. This provision would have clear and direct application in relation to an insurance policy against a specific injury or illness. For example, trauma insurance that pays a lump sum if the person loses a limb or suffers a heart attack. Such a payment would be disregarded for CGT purposes under 118-37(1)(b). However, the application of 118-37(1)(b) in relation to other types of personal insurance and in circumstances involving the buying out of the policy or the settling of disputes in relation to a policy may be more problematic. In the case of Purvis v. FC of T [2013] AATA 58, the Administrative Appeal Tribunal considered the tax consequences of a Qantas pilot receiving a lump sum insurance payment for the loss of licence. Although the loss of licence came about as a result of illness or injury, the Tribunal found that the payment did not relate directly to compensation or damages within 118-37(1)(b). The amount was calculated without regard to the nature of the personal injury suffered, save that the personal injury had to result in the loss of licence. Underlying asset and Taxation Ruling TR95/35 Where compensation is intended to remedy damage to an asset, taxing of that compensation may prevent the remedy occurring. For example, if you incur $1,000 damage to your car and receive $1,000 in compensation, paying tax on that amount would frustrate the purpose of the compensation. For this reason, it is sometimes necessary to identify the damaged underlying asset that the compensation was intended to remedy, and to consider the capital gains tax consequences of the compensation in relation to that asset. Taxing the compensation for the giving up of an income stream does not create this issue, as the income stream would have itself been taxable. Taxation Ruling TR 95/35 deals with the issue of compensation and outlines when it may be relevant to consider the compensation in the context of an underlying asset. Primarily the settlement of a dispute involving an income protection policy would amount to the disposal of a right to seek compensation. However, underlying this is the forfeiture of your rights under the contract - predominately, this would involve the right to receive an income stream but there may be subsidiary benefits at issue. If the compensation is received in relation to multiple heads of claim, TR 95/35 allows a reasonable apportionment of that payment. For example, if a payment is intended to replace both an income stream and other potential benefit entitlements, the payment may be apportioned between the two heads of claim on a reasonable basis. | Detailed Reasoning - Application to your circumstances: Ordinary income In your case, you hold an income protection policy primarily designed to protect and provide income in the event of illness or disability. Your situation is similar to Sommer's case in that you will receive an amount in settlement of income claims against your income protection insurance policy. In Sommer's case it was determined that the payment was revenue despite being paid in a lump sum. Therefore, the lump sum payment you received is assessable as ordinary income under section 6-5. Statutory income Should the Commissioner have erred in characterising the lump sum payment as ordinary income, the payment would be included in your assessable income under section 15-30 as statutory income. Noting that the periodic receipt of income protection payments is considered ordinary income, the payment is an indemnification of the loss that income; and as such, is included in your assessable income. Capital gains In this case, your insurer has offered full and final settlement of any claims under your policy with a lump sum payment. Acceptance of the lump sum is considered to be a payment for the ending of your rights under the insurance policy. This gives rise to CGT event C2. Therefore the lump sum payment is assessable as a capital gain. In relation to whether the settlement payment would be disregarded under paragraph 118-37(1)(b), it is considered that the payment relates primarily, if not solely, to compensate for the loss of your right to an income stream under the policy. The payment is not considered to be solely a payment of compensation for the illness/injury that entitled you to make a claim under the policy. Consequently, it is considered that the capital gain cannot be disregarded under the above provision. Further as it has been also determined above that the payment received by you is assessable as ordinary income or statutory income, the anti-overlap provisions in section 118-20 will operate to reduce the capital gain arising as a result of CGT event C2 by the amount of the income assessed to you under either sections 6-5 or 15-30. The combined effect of sections 6-5, 15-30 and 118-20 is that the receipt will be assessed as ordinary income and the capital gain as a result of the CGT event will be reduced to nil. Should we have erred in characterising the lump sum payment as ordinary or statutory income, the payment would nonetheless be assessable as a capital gain under section 102-5 and the exemption under paragraph 118-37(1)(b) would not apply. Structured Settlement Structured settlements have been introduced as an alternative to lump sum payments for personal injury by providing regular income to an injured person. Division 54 of the ITAA 1997 was enacted to provide that income from structured settlement annuities is exempt from tax subject to the satisfaction of a number of conditions. The following is a summary of those conditions taken from the Explanatory Memorandum to the Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002 : Settlement Conditions A structured settlement is the settlement of a claim that meets the following five conditions. Condition 1 The claim must be for compensation or damages for personal injury suffered by a person and the claim must be made by the injured person or by his or her legal personal representative [Subparagraphs 54-10 (1)(a)(i) & (ii), ITAA 1997]. Condition 2 The claim must be based on the commission of a wrong, or on a right created by statute [Paragraph 54-10(1)(b)]. Condition 3 The claim cannot be an action against the injured persons employer, or an associate of the employer, or a claim made under workers compensation law or a claim that could instead be made under workers compensation law [Subparagraphs 54-10(1)(c)(i) & (ii)]. Condition 4 The settlement must be in a written agreement between the parties to the claim. This requirement applies whether or not the agreement is approved by an order of a court or is embodied in a consent order made by a court [Paragraph 54-10(1)(d)]. Condition 5 The terms of the settlement must provide for some or all of a lump sum award of compensation or damages to be used by the defendant or the defendants insurer to be paid to, or for the benefit of, the injured person (or to a trustee) in the form of: an annuity or group of annuities purchased from a life insurance company or State insurers; or an annuity or group of annuities combined with one or more deferred lump sums purchased from a life insurance company or State insurer [Subparagraphs 54-10(1)(e)(i) & (ii)]. In your case, your lump sum settlement does not satisfy conditions 1, 2, 4 or 5. It is not paid as the result of a claim for compensation or damages as the result of personal injury, incurred from the commission of a wrong, rather it is a claim on an income protection insurance policy due to a personal injury sustained during a sporting activity. There is no written structured settlement between you and your insurer to correct a wrong or pay damages, and there is no agreement for the lump sum to be used to purchase an annuity. Your lump sum therefore will not satisfy the conditions to be considered exempt from tax as a structured settlement.