Private ruling: Lump sum compensation payments made in relation to the Return to Work Act 2014 (South Australia)
Date of advice: 5 July 2019
Published: September 2019
Ruling period: Year ended 30 June 2019
Date scheme commenced: 1 July 2018

Ruling: Q1: Will the amount or any portion thereof to be paid pursuant to section 33 of the Return to Work Act 2014 (South Australia) RWA be included in your assessable income? | A1: No | Q2: Will the amount or any portion thereof to be paid for vocational retaining purposes, be included in my assessable income? | A2: No | Q3: Will the amount or any portion thereof to be paid pursuant to sections 56 and 58 of the RWA be included in my assessable income?

Relevant facts and circumstances: · You were employed. · You sustained injuries due to incidents that occurred in the workplace during your employment. · You made a claim for compensation pursuant to the RWA which was accepted. · In accordance with Part 2 Division 5 of the RWA you have been assessed as having whole person impairment (WPI) above 5%. · As the injury resulted in you having a degree of permanent physical impairment, you were entitled to two lump sum payments pursuant to sections 56 and 58 of the RWA. · Section 56 of the RWA provides an entitlement to a lump sum payment for loss of future earning capacity for a worker (other than a seriously injured worker) who has been assessed as suffering a degree of WPI (between 5% and 29%) as a result of their work injury, subject to certain exceptions. · The lump sum is determined according to a formula set out in subsection 56(4) of the RWA . The calculation takes into account the prescribed sum that applies to the injured worker's degree of WPI, their age and the proportion of full-time work performed at the time of the injury. · Section 58 of the RWA provides an entitlement to a lump sum payment for non-economic loss for a worker who has been assessed as suffering 5% or more WPI as a result of their work injury, subject to certain exceptions · Subsection 58(4) of the RWA states that the lump sum will be an amount that represents a portion of the prescribed sum calculated in accordance with the regulations. · Non-economic loss is defined in the RWA as: · pain and suffering · loss of amenities of life · loss of expectation of life · disfigurement · any other loss or detriment of non-economic nature · You were offered a lump sum payment in settlement of your entitlement pursuant to sections 33 of the RWA. · You were offered a lump sum payment for vocational retraining purposes pursuant to the RWA. · You were offered a lump sum payment in settlement of your entitlement pursuant to sections 56 of the RWA. · You were offered a lump sum payment in settlement of your entitlement pursuant to sections 56 of the RWA. · As part of the agreement you resigned. · You accepted the offer.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 6-5 | Income Tax Assessment Act 1997 section 6-10 | Income Tax Assessment Act 1997 Section 15-30 | Income Tax Assessment Act 1997 section 104-25 | Income Tax Assessment Act 1997 subparagraph 118-37(1)(a)(i)

Reasons for decision: Summary: The amount or any portion thereof paid pursuant to section 33 of the RWA should not be included in your assessable income. The amount or any portion thereof paid for vocational retaining purposes should not be included in your assessable income. The amount or any portion thereof paid pursuant to sections 56 and 58 of the RWA should not be included in your assessable income. | Detailed Reasoning - Ordinary Income: Section 6-5 and section 6-10 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of an Australian resident includes ordinary and statutory income (for example, capital gains) derived directly and indirectly from all sources, whether in or out of Australia during the income year. The ITAA 1997 does not provide specific guidance on the meaning of ordinary income. However, a substantial body of case law exists which identifies its likely characteristics. Amounts that are periodic, regular or recurrent and relied upon by the recipient for their regular expenditure are likely to be ordinary income, as are amounts that are the product of any employment of, or services rendered by, the recipient. Further, amounts which compensate for lost income or serve as a substitute for other income are themselves income according to ordinary concepts. | Detailed Reasoning - Statutory Income (for example, Capital Gains): The receipt of a lump sum compensation amount may give rise to a capital gain (statutory income) under Capital Gains Tax (CGT) event C2 (section 104-25 of the ITAA 1997) which relates to cancellation, surrender or similar endings. A capital gain or loss made upon the ending of a CGT asset acquired on or after 20 September 1985 is disregarded under subparagraph 118-37(1)(a)(i) of the ITAA 1997, if the CGT event is in relation to compensation or damages received for any wrong or injury you suffer in your occupation. | Detailed Reasoning - Question 1: Lump Sum Payment made pursuant to Section 33 of the RWA: The amount or any portion thereof paid pursuant to section 33 of the RWA is for compensation of medical expenses. The amount is not ordinary income but capital and is disregarded under subparagraph 118-37(1)(a)(i) of the ITAA 1997. Additionally, as the criteria in subsection 82-135(i) of the ITAA 1997 is satisfied the payment is excluded from being an Eligible Termination Payment. The other applicable sections, section 15-30 of the ITAA 1997 and the capital gains tax provisions of the ITAA 1997, also will not operate to make the payment assessable. Therefore the payment you receive will not be included in your assessable income. | Detailed Reasoning - Question 2: Lump Sum Payment made for vocational retraining purposes: The amount or any portion thereof paid for vocational retaining purposesis not a compensation payment and has not been paid for loss of earnings nor will it recur in the future. The payment is a contribution towards a private expense and therefore should not be included in your assessable income. | Detailed Reasoning - Question 3: Lump Sum Payments made pursuant to sections 56 and 58 of the RWA: The amount or any portion thereof paid pursuant to sections 56 and 58 of the RWA are a result of being assessed as suffering a degree of permanent impairment (being whole person impairment) from a physical injury sustained at work. Paragraph 21 of Taxation Determination TD 2016/18 Income tax: is a redemption payment received by a worker under the Return to Work Act 2014 (SA) assessable income of the worker, provides guidance on payments made under section 56 of the RWA and explains that lump sum payments made under section 56 do not have the character of ordinary income as they are based on a sum prescribed by statute which bears no relationship to the employee's current or former earnings. Section 58 of the RWA SA entitles a worker to compensation for non-economic loss by way of a lump sum. The amount received is calculated as a proportion of the prescribed sum for the degree of WPI caused by the work injury. It is a one-off lump sum payment baring none of the characteristics of ordinary income as it lacks any element of periodicity, recurrence or regularity, and nor is it paid to compensate for loss of income. Therefore, both lump sum payments are capital in nature and will not be assessable as ordinary income. In your case, the lump sum payments have been received as compensation for a 'wrong or injury you have suffered in your occupation', being the loss of body functionality in respect of your workplace injury. Therefore, any capital gain or capital loss arising from the CGT event will be disregarded under subparagraph 118-37(1)(a)(i) of the ITAA 1997 and the payments will not be assessable as statutory income. As the lump sum payments pursuant to sections 56 and 58 of the RWA are not assessable as either ordinary or statutory income, you are not required to include the amounts in your assessable income.