However, the section does not expressly deal with Non-Death Benefits (such as Total and Permanent Disablement and Trauma Benefits) payable under Life Insurance Policies.

The ATO has expressed the view that the section is restricted to Death Benefits (subject to the comments about Terminal Illness Benefits mentioned below).

Application of Section 118-37

Superficially, this means that the only section that expressly creates an exemption with respect to Insurance Proceeds does not apply to Non-Death Benefits.

However, the ATO has agreed to apply section 118-37 to Non-Death Benefits.

Section 118-37(1)(b) grants an exemption to a taxpayer ("you") with respect to:

"compensation or damages you receive for any wrong, injury or illness you or your 'relative' suffers personally".

Section 118-37 does not expressly refer to the proceeds of Insurance Policies.

As a result, unlike section 118-300, it does not define the exemption in terms of the legal or beneficial ownership of the Policy.

Instead, section 118-37 defines the exemption in terms of:

the purpose of the payment (compensation or damages for any wrong, injury or illness); and
the relationship between the taxpayer and the person who suffered the wrong, illness or injury (either the taxpayer personally or a "relative" of the taxpayer).

Unfortunately, section 118-37(1)(b) grants a much less generous exemption than section 118-300.

This is a product of the drafting of the section and the subject matter it was intended to deal with.

However, in effect, the need for the taxpayer and the person who suffered the wrong, illness or injury to be the same person or relatives excludes the types of policy ownership that would normally be described as "Cross-Ownership".

Diagram

Click here to see a diagram that illustrates the operation of section 118-37.

Summary of ATO's Current View

The current view of the ATO is that Non-Death Benefits (such as Total and Permanent Disablement and Trauma) will only be exempt from CGT under Section 118-37, if the Owner of the Policy is:

The Life Insured (or a "relative" such as a spouse) (“Self-Ownership”); or
The Trustee of an Insurance Trust under which the Life Insured (or a "relative" such as a spouse) is “absolutely entitled” against the Trustee under Section 106-50 (“Trust Ownership”); or
a Super Fund of which the Life Insured is a Member ("Super Fund Ownership").

Direct or Indirect Self-Ownership

The Non-Death exemption is limited to direct or indirect Self-Ownership and is therefore much narrower than the Death exemption.

Discretionary Trust Ownership

The ATO does not currently accept that the Exemption under section 118-37 applies to Discretionary Trusts.

However, please see the arguments with respect to Discretionary Trust Ownership below (which are partly based on an extrapolation of the ATO's views with respect to Super Fund Ownership).

Super Fund Ownership

Please see the analysis of Super Fund Ownership below and the current uncertainty within the ATO with respect to this method of Ownership.

Terminal Illness Benefits

Please see the analysis of Terminal Illness Benefits below, which discusses the ATO view that a Terminal Illness Benefit will be treated as a Death Benefit, even though it will be paid before the death of the Life Insured.

Overview of Exemption

Subject to the following analysis of Trust and Super Fund Ownership, the exemption effectively requires the Recipient or Policy Owner to be the Life Insured or a "relative".

Who Isn't Entitled to the Exemption?

This means that the following parties would not be entitled to an exemption:

in the case of Buy/Sell Insurance, the Purchasers (Cross-Ownership);
in the case of Key Person or Debt Reduction Cover, the Business (Cross-Ownership); and
in the case of Debt Reduction Cover, the Bank or Creditor (Bank Ownership).

Alternative Solutions

The unavailability of the exemption for Cross-Ownership of Buy/Sell Insurance is one of the reasons that this type of Cover is now owned by:

the Life Insured (Self-Ownership); or
A Trustee for the Life Insured (Trust Ownership).

Self-Ownership can solve the CGT issue in the context of Buy/Sell Cover, because ultimately the Sale Price will normally be payable to the Life Insured (or their Estate) or a Related Party.

However, it is not an appropriate solution in the case of Key Person or Debt Reduction Cover, where ultimately the Insurance Proceeds must be paid to the Business or a Third Party (such as a Bank or Creditor).

Clover Law originally developed Trust Ownership, in order to achieve one method of Ownership that obtained a CGT exemption with respect to all Benefits and resulted in the Insurance Proceeds being paid to the appropriate Recipient.

Click the following links to read about the tax implications of section 118-37 for:

Buy/Sell Cover; and
Debt Reduction Cover.

More Detailed Interpretation and Analysis of Section 118-37

Section 118-37 does not expressly refer to the proceeds of Insurance Policies.

As a result, unlike section 118-300, it does not define the exemption in terms of the legal or beneficial ownership of the Policy.

Injury or Illness of Taxpayer or a Relative

Instead, section 118-37 grants an exemption to a taxpayer ("you") with respect to:

"compensation or damages you receive for any wrong, injury or illness you or your 'relative' suffers personally".

The underlying purpose of this section was to exempt compensation or damages payments in the case of motor vehicle accidents and workers compensation cases.

It also embraced general insurance policies such as sickness and accident policies.

If you were injured and received a compensation or damages payment, then it would be exempt in your hands.

If your spouse was injured and you received a compensation or damages payment after their death, then the payment would be exempt in your hands.

If a relative was injured and you received a compensation or damages payment, then it would also be exempt in your hands.

The last situation might occur if spouses took out sickness and accident policies on each other.

Extension of Section 118-37 to Non-Death Benefits under Insurance Policies

In the absence of any section expressly dealing with Non-Death Benefits under Life Insurance Policies, the ATO has agreed to extend the application of section 118-37 to TPD and Trauma Benefits under Life Insurance Policies.

This means that, in order to understand the operation of the section, it is necessary to determine how the concepts of "Injury" and "Injured Persons" apply to Insurance Policies.

Origin of Differential Tax Treatment of Death and Non-Death Benefits

There is no logical public policy reason to treat the two types of Benefit differently.

While it was always intended that section 118-37 (and its predecessor, section 160ZB) apply to sickness and accident policies (which are general insurance policies), it is questionable whether it was intended to embrace Life Insurance Policies that provided Non-Death Benefits.

The predecessors of section 118-300 were sections 160ZZH and 160ZZI.

It is arguable that these provisions were intended to create a complete code for the tax treatment of Life Insurance Policies, regardless of whether the Benefit was a Death Benefit or a Non-Death Benefit.

Thus, it was not necessary to rely on the exemption under section 160ZB or section 118-37.

However, when the Legislation was redrafted in 1997 as part of the Simplified Drafting process, the drafting was "tidied up" and this argument can't really be sustained with respect to the current Legislation.

Nevertheless, it highlights that the differential treatment of Death and Non-Death Benefits is more a result of poor legislative drafting than a public policy argument that the Benefits should be taxed differently for substantive reasons.

Proposed Amendments

It is submitted that, ultimately, the industry should lobby to have section 118-300 amended to apply to all Death and Non-Death Benefits.

This would allow "original beneficial ownership" of the Policy to determine the exemption and, as a result, provide a generous exemption that no longer depended on the method of Policy Ownership.

This solution would also remove the uncertainty with respect to the tax treatment of Non-Death Benefits under Policies held by Super Funds (see below).

Alternative Methods of Policy Ownership

The following analysis examines the application of section 118-37 to Policies owned by the following persons or entities:

Life Insured (Direct Self-Ownership)
Trustee for the Life Insured (Indirect Self-Ownership);
Discretionary or Family Trusts (Discretionary Trust Ownership);
Superannuation Funds (Super Fund Ownership); and
Other parties (Cross-Ownership) .

Ownership of Policy by Life Insured (Direct Self-Ownership)

"Injured Person"

Because of the way the exemption has been drafted, the injury or illness must effectively be suffered by:

the person who receives (or is deemed to have received) the payment (i.e., "the taxpayer"); or
a "relative" of the taxpayer.

The exemption is defined in terms of the person who suffers the injury or illness.

In other words, it focuses on the "Injured Person".

Taxpayer Must Be Injured Person or Their Relative

It follows that the taxpayer who is entitled to the exemption must be either:

the Injured Person; or
a "relative" of the Injured Person.

Application of Exemption to Insurance Policies

It is now necessary to apply these concepts to Insurance Policies.

In the case of an Insurance Policy, the recipient of the Insurance Proceeds will normally be the Policy Owner.

Subject to the following analysis of Trust and Super Fund Ownership, this means that the Recipient or Policy Owner must be:

the "Injured Person"; or
a "relative" of the Injured Person.

In the context of Insurance, the Injured Person would be the "Life Insured" for the purposes of the Policy.

As a result, although section 118-37 does not refer to Insurance Policies or Lives Insured, the identity of the Life Insured becomes relevant to the application of the exemption.

In other words, subject to the following analysis of Trust and Super Fund Ownership, the Recipient or Policy Owner must be:

the Life Insured; or
a "relative" of the Life Insured.

Who Isn't Entitled to the Exemption?

The requirement that the Recipient or Policy Owner be the Life Insured or a "relative" means that the following parties would not receive an exemption:

in the case of Buy/Sell Insurance, the Purchasers (Cross-Ownership);
in the case of Key Person or Debt Reduction Cover, the Business (Cross-Ownership); and
in the case of Debt Reduction Cover, the Bank or Creditor (Bank Ownership)

Ownership of Policy by Trustee for the Life Insured (Indirect Self-Ownership)

In CGT Determination No. 14 (TD 14), the ATO indicated that "this treatment will also apply to payments made to a trustee for a taxpayer who has been injured".

This means that the exemption is also available if the Policy Owner is a Trustee for the Life Insured.

Normal Tax Treatment of Trusts

Normally, the Income Tax Assessment Act does not tax Income in the hands of the Trustee of a Trust if there is a Beneficiary who is "presently entitled" to the Income.

Section 97(1) of the Income Tax Assessment Act 1936 states that:

"Where a beneficiary of a trust estate who is not under any legal disability is presently entitled to a share of the income of the trust estate:

(a) the assessable income of the beneficiary shall include:

(i) so much of that share of the net income of the trust estate as is attributable to a period when the beneficiary was a resident; ... and

(b) the exempt income of the beneficiary shall include:

(i) so much of the individual interest of the beneficiary in the exempt income of the trust estate as is attributable to a period when the beneficiary was a resident."

Section 97(1)(a) looks through the Trust and taxes the income in the hands of the Beneficary who is presently entitled to it.

The Beneficiary is the taxpayer who receives the assessable income of the Trust.

Therefore, for the purposes of section 118-37, the Beneficiaryis the taxpayer who receives the compensation or damages.

As a result, it is the relationship between the Beneficiary and the person who suffered the wrong, illness or injury that determines the entitlement to the exemption.

If the Beneficiary is the Life Insured or a relative of the Life Insured, then they will be entitled to the exemption.

Section 97(1)(b) also extends any exemption that applies to the Trustee to a "presently entitled" Beneficiary.

TD14 effectively adopts the normal approach to the taxation of Trust Income.

Clover Law Business Insurance Trust Agreement

The Clover Law Business Insurance Trust Agreement utilises a Fixed Trust.

The Life Insured is normally the Beneficial Owner of the Policy under the Agreement.

TD14 effectively sets out the basis upon which the Trustee and the Beneficiary under a Business Insurance Trust Agreement obtain an exemption for a Non-Death Benefit.

Ownership of Policy by Trustee of Discretionary Trust

TD14 does not expressly state that the Trust must be a Fixed Trust (as opposed to a Discretionary Trust).

Thus, there is currently some uncertainty as to whether the Trustee of a Discretionary Trust or a Beneficiary under a Discretionary Trust will be entitled to the exemption under section 118-37.

TD14 imports the tax treatment of Trusts pursuant to section 97 of the Income Tax Assessment Act 1936.

The operation of section 97 does not depend on whether the Trust is a Fixed Trust or a Discretionary Trust.

What matters is that the Beneficiary is "Presently Entitled" to the distribution or payment.

Therefore, as long as the Insurance Proceeds are distributed to a taxpayer who satisfies the requirements of section 118-37, it is arguable that the exemption should extend to the Beneficiary.

If the Trustee of a Discretionary Trust received the Insurance Proceeds and distributed them to the Injured Person or Life Insured (or a "relative"), it is therefore arguable that:

the exemption would extend to the Beneficiary; and
the payment would be exempt on normal income tax principles pursuant to section 97 of the Income Tax Assessment Act 1936.

The ATO has not expressly considered this issue in any precedential documentation.

Thus, there remains some doubt about whether these arguments would be accepted by the ATO.

Clover Law Business Insurance Trust Agreement

The Clover Law Business Insurance Trust Agreement utilises a Fixed Trust and is not dependent on the arguments with respect to Discretionary Trusts.

Ownership of Policy by Trustee of Super Fund

Section 18-300 expressly provides that a Super Fund will obtain a CGT exemption.

However, because section 118-37 was not drafted in the context of Insurance Policies, it did not envisage the possibility that the owner of a Policy might be a Super Fund.

Therefore, theoretically at least, there is some doubt as to whether a Super Fund would receive a CGT exemption for a TPD Benefit.

In 2005, the ATO issued a draft Paper in which it stated the following views:

"[The] Tax Office will apply TD 14, to treat payments under a policy of insurance to trustees as exempt provided that the requirements of section 118-37 are satisfied in respect of the beneficiary (that is, any benefits paid under the policy are intended to be provided to the beneficiary as compensation for any injury or illness the beneficiary or their relative suffers personally).
"Any capital gain or loss made by the fund trustee as a result of receiving an insurance payment because of illness or injury suffered by a member will be disregarded under section 118-37.
"These exemptions apply regardless of whether the member is entitled to immediate payment of the insurance amount.
"That is, regardless of whether the member has met one of the conditions of release in Schedule 1 to the Superannuation Industry (Supervision) Regulations 1994 and regardless of whether the member has satisfied the conditions for payment set out in the trust deed and rules governing the particular fund. "

While this draft Paper has no formal status, it is likely that it represents the current views of the ATO and that, if required, these views will ultimately be reflected in legislation.

N.B. As at 28 August, 2009, there still seems to be some doubt within the ATO as to whether these views are correct.

As a result, the ATO has had discussions with Treasury about the need to amend the Tax Laws.

Application of TD14 to Super Funds

The extension of the exemption to Super Funds is based on TD 14.

TD14 is also the basis of the exemption for a Benefit payable under a Policy owned by a Trust for the Life Insured held on the terms of a Business Insurance Trust.

The exemption for the Business Insurance Trust Agreement depends on the identity of the Beneficial Owner of the Policy.

However, it results in an exemption for both the Trust and the Beneficiary.

In the case of a Super Fund, the ATO does not appear to require the Life Insured to be the "Beneficial Owner" of the Policy or an "Absolutely Entitled Beneficiary" within the meaning of section 106-50.

It seems to be sufficient that the Life Insured is a Member of the Fund.

The ATO is effectively granting the exemption to the Trustee of the Super Fund on the basis of the identity of the Member.

Tax Treatment of Subsequent Distribution to Member

The ATO does not appear to be saying that the subsequent payment of the Benefit to the Member by the Trustee obtains the exemption.

The payment of the Benefit to the Member would presumably be taxed (or exempt) according to the normal rules that apply to Super Funds.

In other words, by the time the Benefit is paid to the Member, it has effectively lost the character of Insurance Proceeds and is paid as a normal Superannuation Benefit.

As a result, the Benefit is taxed (or exempted) in the hands of the Member as a Superannuation Benefit, not as an Insurance Benefit.

Conditions of Release

The ATO's views don't require the Benefit to be paid out to the Member as soon as the Insurance Proceeds are paid to the Super Fund.

Therefore, they effectively recognise that the TPD Benefit might be trapped in the Fund and not available to the Member, pending the satisfaction of a Condition of Release.

This will be relevant if the TPD Benefit is an "Own Occupation TPD" Benefit.

Implications of ATO's Views on Tax Treatment of Super Fund Ownership

If the ATO's analysis is correct, then it might have implications for how TD14 is applied to other Trusts.

The question is what level of beneficial ownership does the Life Insured need to have in order to obtain an exemption under section 118-37?

Does it need to be "absolutely entitled" to the Policy as against the Trustee under section 106-50?

Is it sufficient that it be a beneficial owner under a Fixed Trust?

Is it sufficient that the Beneficiary simply have become "presently entitled" to the Insurance Proceeds at the time of distribution (e.g., under a Discretionary Trust)?

Absolute Entitlement Trusts

An Absolute Entitlement Trust represents the highest level of Beneficial Ownership and would be sufficient to obtain an exemption.

However, it can be inferred from the ATO's views that the Life Insured does not need to be "Absolutely Entitled" to the TPD Benefit under section 106-50 for a Trust to obtain a CGT exemption under section 118-37.

Fixed Trusts

It can be inferred that the exemption will be available if the Trust is a Fixed Trust for the benefit of the Life Insured.

Discretionary Trusts

In the absence of the above arguments about section 97 in relation to Discretionary Trusts, it could be argued that the Trust must be a Fixed Trust for the benefit of the Life Insured.

The question is what can be inferred from the views of the ATO about Super Funds in particular?

The problem is that the basis of the ATO's views is not explained.

It is not clear whether the ATO considers that a Super Fund is entitled to the exemption, because it believes that the Fund is fundamentally a Fixed Trust for the Life Insured or Member.

Its reasoning seems to depend on the identity of the Member rather than the beneficial ownership of the Policy.

As long as the Member has been injured, it will give the Fund an exemption.

It therefore seems that the ATO is not relying on beneficial ownership of the Policy by the Life Insured or Member in the case of a Super Fund.

Beneficial Ownership of Insurance Proceeds Before Condition of Release Satisfied

This is consistent with the nature of the Trust Assets, pending payment of a Benefit to a Member.

Pending the satisfaction of a Condition of Release, the Insurance Proceeds will form part of the Trust Assets.

If the Member retires, then the Trust Assets can be paid to the Member personally.

However, if the Member dies before a Condition of Release is satisfied, then the Super Fund Trustee will hold the Trust Assets (including the Insurance Proceeds ) on behalf of the Life Insured's Estate and any Beneficiaries nominated by the Member.

The Insurance Proceeds do not "vest" in the Member while they are alive and then "divest" if they died before satisfying a Condition of Release.

The Insurance Proceeds do not vest at all, at least until the Member satisfies a Condition of Release.

As a result, until a Condition of Release is satisfied, the Member would not be "Presently Entitled" to the Non-Death Benefit under section 97(1) or "Absolutely Entitled" to the Benefit within the meaning of section 106-50.

Therefore, it appears that the ATO's views are not based on any underlying form of beneficial ownership of the Policy by the Life Insured or Member.

The ATO therefore seems to be analysing the situation on the basis that the Super Fund is a Discretionary Trust.

Only the Super Fund has a beneficial interest in the Policy.

The Member is not a beneficial owner of the Policy at all.

Kafataris v The Deputy Commissioner of Taxation

In Kafataris v The Deputy Commissioner of Taxation [2008] FCA 1454, the Federal Court treated a Super Fund as analogous to a Discretionary Trust.

In that case, the Court stated that the Member "was not entitled to the half interest once it was subjected to the Trust. Her only entitlement was to require the Trustees to pay her money once the conditions of her entitlement were satisfied".

In addition, the Court did not treat the Member as the sole Beneficiary for the purposes of section 106-50, because there were other Dependants and Relatives who had an expectancy and were entitled to compel the due administration of the Trust by the Trustee.

In a sense, they were "Discretionary Beneficiaries" who could receive a Benefit, depending on the circumstances.

Thus, a Super Fund appears to be a Discretionary Trust that varies in nature, depending on the situation that gives rise to the payment by the Fund.

No Beneficial Ownership of Policy by Member or Life Insured

This means that, pending payment of a Benefit by the Trustee, no Beneficiary (including the Member, a Dependant or other Relative) would be the beneficial owner of a Policy held by the Super Fund (or the Insurance Proceeds).

The Member could not even be said to be "presently entitled" to the Insurance Proceeds while they are in the hands of the Trustee.

The Member's interest in the funds really only commences at the time a Condition of Release is satisfied and the Trustee determines to pay the Benefit to the Member.

As a result, it appears that, at least in the case of Super Funds, the ATO does not require a Fixed Trust in order to obtain a CGT exemption under section 118-37.

Implications for Discretionary Trusts

If the ATO's views are correct, then they seem to support the above arguments that the exemption would be available in the case of a Policy owned by a Discretionary Trust if the Insurance Proceeds are distributed to a "presently entitled" Beneficiary.

At least in the case of a Discretionary Trust, the Life Insured will be able to establish "present entitlement" when the Insurance Proceeds are distributed to them after payment of the claim.

This is a higher level of interest in the Policy than a Member has under a Super Fund.

Ownership of Policy by Other Parties ( Cross-Ownership)

Unlike Death Benefits, Section 118-37 means that no exemption will be available if the Policy is owned by:

the Purchasers;
the Business; or
a Bank or Creditor .

Section 118-37 is therefore much more restrictive than section 118-300.

While these methods of ownership might receive an exemption with respect to Death Benefits, they will not receive an exemption with respect to Non-Death Benefits.

This has adverse implications for:

the ownership of Buy/Sell Cover by the other Proprietors (Cross-Ownership); and
the ownership of Key Person or Debt Reduction Cover by the Business or the other Proprietors (Cross-Ownership).

Summary

Under Section 118-37, Non-Death Benefits (such as Total and Permanent Disablement, Trauma and Terminal Illness Benefits) will only be exempt from CGT, if the Owner of the Policy is:

The Life Insured (or a "relative" such as a spouse) (“Self-Ownership”); or
The Trustee of an Insurance Trust under which the Life Insured (or a "relative" such as a spouse) is “absolutely entitled” against the Trustee under Section 106-50 (“Trust Ownership”); or
a Super Fund of which the Life Insured is a Member ("Super Fund Ownership").

The Non-Death exemption is limited to direct or indirect Self-Ownership and is therefore much narrower than the Death exemption.

N.B. Please see the analysis of Terminal Illness Benefits below, which discusses the ATO view that a Terminal Illness Benefit will be treated as a Death Benefit, even though it will be paid before the death of the Life Insured.

Implications for Policies that Bundle Death and Non-Death Benefits

The Cross-Ownership of a Death Benefit will normally be exempt.

However, the Cross-Ownership of a Non-Death Benefit will not be exempt.

Because Non-Death Benefits are usually bundled with a Death Benefit under the one Policy, there is a risk that Cross-Ownership of a Policy will result in a CGT liability.

Ownership by Spouse or Relative of Life Insured

While a "relative" of the Life Insured may receive an exemption under Section 118-37, it is generally recommended that ownership of Policies by spouses or other relatives be avoided in the Business Succession context.

A Non-Death Benefit is usually bundled with a Death Benefit on the same Policy.

It is therefore important that spouse ownership not compromise the commercial and tax strategy with respect to the Death Benefit.

For example, there is a risk that a separation or divorce might lead to the acquisition of the Policy by the Life Insured or the Business for consideration (which would compromise the CGT exemption applicable to the Death Benefit).

Spouse ownership also detracts from the scope to distribute the Death Benefit to a Testamentary Trust established by the Life Insured's Will.

In addition, it is desirable that any personal insurance proceeds be directly available to the Life Insured or injured person upon a Non-Death Event.

Terminal Illness Benefits

Please click here to see the analysis of Terminal Illness Benefits, which discusses the ATO view that a Terminal Illness Benefit will be treated as a Death Benefit, even though it will be paid before the death of the Life Insured.

Adviser Tip

Trust ownership is an indirect form of self-ownership.

The Life Insured is the "beneficial owner" for legal and tax purposes under the roof of the Trust.

See more Adviser Tips

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