INCOME TAX INSURANCE PERSONAL SICKNESS AND ACCIDENT INSURANCE TAKEN OUT BY EMPLOYEE WITH EMPLOYER PAYING THE PREMIUMS ON EMPLOYEE S BEHALF

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1 QUESTION WE VE BEEN ASKED QB 15/09 INCOME TAX INSURANCE PERSONAL SICKNESS AND ACCIDENT INSURANCE TAKEN OUT BY EMPLOYEE WITH EMPLOYER PAYING THE PREMIUMS ON EMPLOYEE S BEHALF All legislative references are t the Incme Tax Act 2007 unless therwise stated. This Questin We ve Been Asked is abut ss CA 1, CA 2(2), CE 1(1), CE 5, CE 11, CW 34, CX 4, DA 1, DA 2, RD 2, RD 3, RD 5(2) and the definitin f salary r wages in s YA This Questin We ve Been Asked (QWBA) cnsiders the incme tax treatment f persnal sickness r accident insurance plicies. Sme persnal sickness r accident insurance plicies include elements f incme prtectin insurance. There are specific prvisins in the Act that apply nly t incme prtectin insurance, s incme prtectin insurance may have a different tax treatment t ther persnal sickness r accident insurance. 2. This QWBA des nt cnsider the treatment f payments t r frm sickness, accident, r death benefits funds. 3. This QWBA als des nt cnsider the treatment f weekly cmpensatin purchased under s 223 f the Accident Cmpensatin Act Questin 4. What is the incme tax treatment f a persnal sickness r accident insurance plicy that is: Answer taken ut by an emplyee (the emplyee is the plicy hlder), and the premiums are paid by the emplyer n the emplyee s behalf? 5. The emplyer will generally be entitled t a deductin fr the premiums paid. 6. The amunt f the premiums paid fr incme prtectin insurance will nt be subject t PAYE. The amunt f premiums paid fr ther persnal sickness r accident insurance plicies will be treated as salary r wages and, therefre, subject t PAYE. Fringe Benefit Tax will nt apply because the plicy belngs t the emplyee. 7. Amunts paid ut (r that an emplyee is therwise entitled t) under incme prtectin insurance plicies will be incme under s CE 11. Amunts paid ut (r that an emplyee is therwise entitled t) under ther persnal sickness r accident plicies will be incme nly if they are incme under rdinary cncepts (s CA 1(2)). Amunts that are nt incme under rdinary cncepts will nt be subject t tax. 8. Amunts that are incme under s CE 11 r s CA 1(2) will be exempt incme if they are payments: made t a persn because they (r anther persn) are incapacitated fr wrk; and either paid by a friendly sciety (s CW 34(2)(a)); r nt calculated accrding t a lss f earnings (s CW 34(2)(c)). 9. If the payment des nt meet these criteria, it will be assessable incme. 1

2 Explanatin 10. Inland Revenue recently undertk a review f all Public Infrmatin Bulletins (see During that review tw items n the incme tax treatment f insurance in an emplyment cntext were identified as being ut f date. The tw items are Staff insurance schemes (Public Infrmatin Bulletin N 70 (December 1972): 11) and Life and accident insurance plicies (Public Infrmatin Bulletin N 106 (July 1980): 2). Thse PIBs cvered a number f different scenaris. We intend t replace the PIBs with a series f QWBAs cvering cmmn scenaris. 11. This QWBA cnsiders the situatin where an emplyee takes ut a persnal sickness r accident insurance plicy and the emplyer pays the premiums. It des nt cver the situatin where an emplyer takes ut a sickness r accident insurance plicy fr the emplyee s benefit (see QB 15/10 fr discussin f that situatin). 12. There are many different types f insurance plicies that culd be sickness r accident insurance (r culd include an element f persnal sickness r accident insurance). These include medical insurance, incme prtectin insurance, accident insurance, and trauma r critical illness plicies. Pay-uts under these insurance plicies can be peridic r lump sum and can be calculated in a variety f ways. 13. Where nly part f a plicy cmes within a particular definitin, it may be necessary t apprtin premiums between different types f insurance. Similarly where a payut under a plicy is made fr mre than ne thing, apprtinment f the receipt may be required. Deductibility f premiums fr emplyer 14. A persn is allwed a deductin fr an amunt f expenditure r lss t the extent that it is incurred by them in the curse f carrying n a business fr the purpse f deriving assessable (and/r excluded) incme (s DA 1). Sectin DA 2 sets ut sme limitatins n deductibility. Fr example, expenditure that is capital in nature, r expenditure incurred in deriving exempt incme, is nt deductible (s DA 2(1) and (3)). 15. In mst cases, salary and wage csts will be deductible because they will satisfy the nexus test in s DA 1 and nne f the general limitatins will apply. The payment f a sickness r accident insurance premium fr an emplyee that is paid in cnnectin with the emplyee s emplyment is a business cst just like salary r wages. Therefre, prvided the csts f an emplyee s salary r wages are deductible, the csts f paying the insurance premiums will be t. Whether amunt f premium paid is taxable in the hands f the emplyee 16. An emplyee s incme includes expenditure n accunt f that emplyee (s CE 1(1)(b)). Expenditure n accunt f an emplyee means a payment made by an emplyer relating t expenditure incurred by an emplyee (r t be incurred by an emplyee) (s CE 5(1)). This is subject t certain exceptins (in s CE 5(3)). 17. The nly ptentially relevant exclusin in this cntext is s CE 5(3)(j). Sectin CE 5(3)(j) applies t premiums fr incme prtectin insurance that an emplyer is liable t make a cntributin twards fr the benefit f an emplyee. Where a persnal sickness r accident plicy is als (r als includes) incme prtectin insurance, s CE 5(3)(j) may be relevant. 18. In the situatin cvered by this QWBA, the emplyee has a legal bligatin t the insurance cmpany t pay the insurance premiums. Therefre, the amunt f the insurance premiums is incurred by the emplyee. The emplyer is paying the premiums t the insurance cmpany. Therefre, the payment f the insurance 2

3 premiums meets the definitin f expenditure n accunt f the emplyee under s CE 5(1). 19. T the extent that the premium paid is: fr incme prtectin insurance ; and the emplyer has a liability t pay (r make a cntributin twards) that premium, then the payment f the premium will nt be expenditure n accunt f the emplyee. Premiums paid fr incme prtectin insurance are nt subject t PAYE (ss CE 5(3)(j)). 20. In all ther cases the payment f the premium will be expenditure n accunt f the emplyee. A payment f expenditure n accunt f an emplyee is part f the emplyee s salary r wages (s RD 5(2)). A payment f salary r wages is a PAYE incme payment (s RD 3). Therefre, the PAYE rules apply and the amunts are subject t PAYE. The amunt f the premiums needs t be grssed up befre PAYE is calculated. That is, the amunt f the premium paid is the amunt net f tax. 21. As the payment f the premium is assessable incme t the emplyee, the FBT rules will nt apply (s CX 4). 22. There are als ther ptential implicatins f having the grss amunts f the premiums included in an emplyee s salary r wages. Fr example, there are varius ther circumstances where bligatins, eligibility, r entitlements may be calculated based n an emplyee s salary r wages (fr example KiwiSaver and Wrking fr Families Tax Credits). Treatment f prceeds t the emplyee 23. Whether a payment made under an insurance plicy is taxable will depend n what it is paid fr. Sme payments will nt be incme (under a specific prvisin r rdinary cncepts) and, therefre, will nt be taxable. Payments that are incme may be either taxable r exempt incme depending n the circumstances. The fllwing discussin is intended t assist with determining hw a payment under an insurance plicy shuld be treated. Is the payment t the emplyee incme? 24. If a persnal sickness r accident insurance plicy is (r includes) incme prtectin insurance, s CE 11 may apply. Payments made under a plicy f incme prtectin insurance where an emplyer is liable t pay r cntribute t the premiums are incme t the emplyee under s CE There are n specific prvisins that apply t make payments under ther persnal sickness r accident insurance plicies incme. Therefre, payments under these insurance plicies will be incme nly if they are incme under rdinary cncepts (s CA 1(2)). 26. Whether a payment under an insurance plicy is incme r nt will depend n the relatinship between the payer and the recipient and the purpse f the payment (Reid v CIR (1985) 7 NZTC 5,176). Where a payment is made t replace incme which the recipient wuld therwise have earned r where the purpse f the payments is t prvide the recipient with amunts t meet their living expenses, the payments are likely t be incme. Payments that are regular r recurring are much mre likely t be incme (Reid). Hwever, a ne-ff payment may still be incme (FCT v Hytec Hiring Pty Ltd 92 ATC 4,694). 27. Therefre, the payments that are mst likely t be incme are payments that are intended t cmpensate an insured persn fr lst incme (whether peridic, r lump 3

4 sum) and ther regular r peridic payments intended t help the insured persn meet their living expenses. Other lump sum and reimbursing payments are unlikely t be incme (fr example, a lump sum payment made t cmpensate a persn fr the lss f a limb, r a payment reimbursing medical expenses). 28. Payments that are nt incme (either under s CE 11 r s CA 1(2)) will nt be taxable. If a payment is incme, it is necessary t cnsider whether it is assessable incme r exempt incme. Is the payment exempt incme f the emplyee? 29. The relevant exemptin prvisin is s CW 34. A payment f incme made under a plicy f persnal sickness r accident insurance will be exempt under s CW 34 if: it is made t a persn because they (r anther persn) are incapacitated fr wrk; and either the payment is made by a friendly sciety; r the payment is nt calculated accrding t lss f earnings. 30. If the payment des nt meet these criteria, it will be assessable incme. 31. The fllwing diagram sets ut the prcess fr determining hw an amunt paid ut under a plicy shuld be treated. Each payment needs t be cnsidered separately. As nted abve, where a single payment is made fr mre than ne thing, apprtinment may be required: 4

5 Treatment f payment made t a persn under a plicy f persnal sickness r accident insurance Examples 32. The fllwing examples are included t assist in explaining the applicatin f the law. Example 1 Incme Prtectin Insurance 33. Jan takes ut an incme prtectin insurance plicy fr herself. Jan s emplyment cntract cntains a clause that, if Jan takes ut an incme prtectin insurance plicy, her emplyer will pay the premiums. Jan s plicy prvides that, if Jan is unable t wrk due t sickness r accident, she will be paid 75% f her lst earnings. Jan and her emplyer want t knw the incme tax implicatins f this. 34. Jan s emplyer is allwed a deductin fr the amunts f premium paid t the insurer. There is n PAYE payable n the amunt f premiums as they are excluded frm being expenditure n accunt under s CE 5(3)(j). If Jan becmes unable t wrk and her plicy pays ut, these amunts will be Jan s assessable incme. The payments will nt be exempt under s CW 34 as they will be calculated accrding t the earnings that Jan has lst. 5

6 Example 2 Accident Insurance 35. Dennis takes ut an accident insurance plicy and, as part f his remuneratin package, his emplyer agrees t pay the premiums. Under the plicy Dennis will receive a fixed lump sum payment n the ccurrence f certain specified events if caused by an accident. Dennis accident insurance plicy will als reimburse medical expenses incurred as a result f an accident up t a maximum f $50,000. Dennis emplyer is allwed a deductin fr the premiums and Dennis is subject t PAYE n the amunts f the premiums paid. 36. The fllwing year Dennis has an accident while using his axe at hme and lses a te. His plicy pays ut a fixed amunt f $1,000 fr the lss f his te and als reimburses Dennis $10,000 fr his medical expenses. Dennis wants t knw whether t include these amunts in his incme. 37. The sum fr the lss f his te and the reimbursements f Dennis medical expenses are nt incme. The amunts are nt incme under rdinary cncepts. They are nt peridic r regular payments. Als, they are nt paid t cmpensate Dennis fr lst incme nr are they payments n which Dennis can rely fr his living expenses. References Related rulings/statements Staff insurance schemes Public Infrmatin Bulletin N 70 (December 1972): 11 Life and accident insurance plicies Public Infrmatin Bulletin N 106 (July 1980): 2 Subject references Expenditure n accunt f an emplyee Incme prtectin insurance Persnal sickness r accident insurance Legislative references Incme Tax Act 2007, ss CA 1, CA 2(2), CE 1(1), CE 5, CE 11, CW 34, CX 4, DA 1, DA 2, RD 2, RD 3, RD 5(2) and the definitin f salary r wages in s YA 1 Case references FCT v Hytec Hiring Pty Ltd 92 ATC 4,694 Reid v CIR (1985) 7 NZTC 5,176 6

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