CheckLists.Tax (beta)
M5. Receipt of compensation
INCOME TAX
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Trading: revenue receipt of the trade
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- What is the compensation 'for'?
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​General position
- When compensation is received, there are two key questions from a trading perspective:
(1) Is it a receipt of the trade;
(2) If it is, is it a capital or revenue receipt.
- Generally (but perhaps not always) whether compensation is a receipt of the trade depends on what it is 'for'.
- If it was "for" a loss consisting of a failure to receive a sum that would have been a trading receipt, it is a trading receipt.
- Similarly, if it is for a loss consisting of a trading expense that would not have been incurred, it is a trading receipt.
- On the other hand, if it is 'for' an injury or wrong suffered by the person in their personal capacity it is not a trading receipt (e.g. personal injury).
Identifying what compensation is 'for'
- This depends on the nature of the cause of action/what is actionable.
- How the compensation is calculated/measured does not necessarily tell you what the compensation is 'for'.
- "But there is no relation between the measure that is used for the purpose of calculating a particular result and the quality of the figure that is arrived at by means of the application of that test." (Glenboig Union Fireclay at 464)
- Is the cause of action providing compensation directly for the loss in question or is that loss part of measuring the compensation for another more immediate consequence?
- For instance, if a third party's negligence causes physical damage to a capital asset used in T's trade, CoA in Attwooll said that the negligence cause of action provides compensation, directly, for:
(1) The physical damage to the asset - which is measured as the cost of repair.
(2) Preventing use of the asset for a period of time - which is measured as the loss of trading receipts.
- CoA said that prevention of use of an asset caused by negligence would give rise to compensation even in the absence of physical damage, so the compensation was 'for' the prevention of use and the consequent loss of trading receipts (rather than only 'for' the physical damage, measured in two ways).
- "I think that this analysis starts too late. It assumes that the cause of action was based on the physical harm done to the jetty and on nothing else. But I do not think this is so. The cause of action was based upon the loss sustained by the Respondent trader by the negligent navigation of the tanker, and the loss sustained because the jetty could not be used for 380 days would have been recoverable even if there had been no physical harm to the jetty, as, for example, if the tanker had sunk alongside the jetty, so preventing its use. I do not see how the identity of what the £21,000 was paid for can be affected by whether or not the loss of use was accompanied by physical damage." (Attwooll at 516)
- In contrast, where the negligence causes personal injury, compensation may be paid in respect of pain and suffering alongside financial loss, such as loss of profit, but the compensation is 'for' the personal injury.
- The law provides compensation for negligently caused personal injuries.
- Financial loss, if any, is part of the measure of that compensation, but not (normally) recoverable independent of the personal injury.
- "It is accepted, for example, that damages for personal injury are compensation for the personal injury, though partly calculated by reference to the income which the injured person would have earned (see British Transport Commission v Gourley [1956] AC 185). In Lewis v Daily Telegraph Ltd [1964] AC 234 it was decided that damages awarded to a company for libel are compensation for damage to its reputation, even though calculated in part by reference to the loss of profits which the libel has caused. In both cases, therefore, the damages were not taxable because they were not compensation for a revenue receipt. What both cases show is that the answer to the question of what the damages were for also provides the answer to the question of whether they arose out of the trade." (Deeny v. Gooda Walker Ltd at 309, Lord Hoffmann)
- Some of the statements in Attwooll, however, would seem to be inconsistent with this: if a sum 'represents' profit which would otherwise have been earned, it is a revenue trading receipt.​
- Or they ask whether one loss is 'divisible' from another.
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Caution re the 'for' approach as a complete test.
- A majority of HoL in Deeny Gooda refused to endorse Lord Hoffmann's view that the answer to the 'for' question would always determine whether a sum was a trading receipt (albeit it may be that it normally would):
- "Where compensation is received by a trader, two questions arise, viz, first, was the receipt of the compensation a receipt of the recipient's business and, second, was such receipt of an income or capital nature? I have no doubt that the test propounded by Diplock LJ correctly determines the answer to the second of those questions, ie whether such compensation falls to be treated as income or capital of the taxpayer's trade. As to the first of those questions, in the ordinary run of cases the receipt of a sum by a trader as compensation for the failure to receive what would have been a receipt of his trade will normally demonstrate that the compensation is itself a receipt of that business. But there may be unusual cases where the test propounded by Diplock LJ might not be appropriate to the correct determination of the question whether the compensation is a receipt of the taxpayer's business." (Lord Browne Wilkinson)
- The example given was Higgs v. Olivier - sum received by actor to compensate for not carrying on part of his trade for a limited period was not a receipt of the trade.
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Legislation:
Cases:
Glenboing Union Fireclay Co Ltd v. IRC (1922) 12 TC 427;
Higgs v. Olivier, 33 TC 136;
London & Thames Haven Oil Wharves Ltd v. Attwool (1966) 43 TC 491;
Deeny v. Gooda Walker Ltd [1996] STC 299;
HMRC manuals:
Commentary:
See also:
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- Wrong actionable only upon proof of financial loss/damage
- If the compensation is paid in respect of loss/damage that the cause of action would require compensation to be paid for even if there was no other loss/damage ("actionable damage"), that compensation is paid for that loss/damage.
- If the compensation is paid in respect of loss/damage that is not, per se, actionable, the compensation is for the actionable damage.
- For instance physical damage may lead to economic loss that would not have been actionable by itself.
- "The economic loss suffered in cases of this kind, which cannot be recovered, is usually referred to as "pure economic loss", meaning economic loss that is not consequent on damage to, or loss of, the claimant's property (or on personal injury to the claimant)." (Armstead, §20).
- Although Attwool was decided on the basis that preventing use of the jetty would have been actionable damage per se, that appears questionable as a matter of tort law.
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Legislation:
Cases:
Armstead v. Royal & Sun Alliance Insurance Company Ltd [2024] UKSC 6;
HMRC manuals:
Commentary:
See also:
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- Wrongs actionable without proof of specific injury/loss
- Where a legal wrong is actionable per se, without any proof of any specific injury/loss (unlike negligence), it is considered that the compensation is 'for' the wrong, even though it may be calculated by reference to, inter alia, financial loss.
- For instance discrimination is actionable without proof of any financial loss. Compensation can be awarded for injury to feelings. Compensation for discrimination is, accordingly, for the discrimination, even if it is measured in various ways.
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Legislation:
Cases:
HMRC manuals:
Commentary:
See also:
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- Contractual sums and damages
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- The same question of what the contractual sum is 'for' arises.
- The contract may well be explicit as to what the sum is for, e.g. agreed damages.
- Burmah Steam Ship - agreed contractual compensation where ship repairers exceeded the stipulated time for repair of the ship were a revenue trading receipt.
- Insurance receipts are generally contractual sums in respect of specific losses. See N3. Insurance proceeds.
- E.g. the insurance may be specifically for the loss of profit rather than any damage or destruction of an asset (British Columbia Fir).​
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Legislation:
Cases:
Burmah Steam Ship Company Limited v. CIR (1930) 16 TC 67;
R v. British Columbia Fir and Cedar Lumber Co Ltd [1932] AC 441;
HMRC manuals:
Commentary:
See also:
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- Compensation 'for' a failure to receive a revenue trading receipt or to reimburse a revenue trading expense
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Treat in the same way as the receipt would have been treated
- "Where, pursuant to a legal right, a trader receives from another person compensation for the trader's failure to receive a sum of money which, if it had been received, would have been credited to the amount of profits (if any) arising in any year from the trade carried on by him at the time when the compensation is so received, the compensation is to be treated for income tax purposes in the same way as that sum of money would have been treated if it had been received, instead of the compensation." (Attwooll).
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Principle applies equally to compensation for revenue expense
- "Although Diplock LJ refers to the trader's failure to receive a sum of money which would have been a revenue receipt, his principle must apply equally to compensation for his liability to pay a sum of money which was a revenue expense." (Deeny at 308).
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Legislation:
Cases:
London & Thames Haven Oil Wharves Ltd v. Attwool (1966) 43 TC 491;
Deeny v. Gooda Walker Ltd [1996] STC 299;
HMRC manuals:
Commentary:
See also:
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- T suffers both revenue and capital loss
- In some cases, the same wrong may be reflected in both revenue and capital losses.
- For instance, in Donald Fisher, an estate agent's negligence caused the rent on a lease to be higher than it should have been. This both (i) led to higher revenue expenses in future (the increased rent); and (ii) led to a reduction in the value of a capital asset (the lease).
- CoA held that the claim was for the extra rent and damages following trial would have been measured by reference to the rent rather than any diminution in value.
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Legislation:
Cases: Donald Fisher (Ealing) Ltd v. Spencer [1989] STC 256 (CoA);
HMRC manuals:
Commentary:
See also:
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Trading: voluntary compensation
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- ​Voluntary increase in price for earlier work/payment for failure to receive profit earning opportunity taxable
- A payment received to recognise that earlier work done had been inadequately remunerated was a trading receipt in McGowan v. Brown.
- There was a custom that an estate agent would receive low remuneration for negotiating the purchase of a site for development on the basis that the same estate agent would get the more lucrative work of selling the developed properties.
- The site-buyer sold it on before developing it and made an ex gratia payment to the estate agent in response to protests from the estate agent.
- Held: taxable. It was paid because the estate agent had been inadequately remunerated for the earlier work and had a moral claim to compensation when not appointed for the more lucrative work.
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Legislation:
Cases: McGowan v. Brown [1977] STC 342, Templeman J;
HMRC manuals:
Commentary:
See also:
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Annual payments
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- Periodical payments of personal injury damages
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- Exclusion from charge in ITTOIA s.731.
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Legislation:
Cases:
HMRC manuals:
Commentary:
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EMPLOYMENT TAX
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- Wrongful termination/repudiation of employment contract
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General earnings
​- Compensation to compromise a claim for wrongful repudiation of employment contract is not earnings from employment as it arises by reason of the disappearance of the employment (Du Cros).
- "The contract of service was at an end. The source of income had disappeared, and the sum paid by way of damages could not be regarded as a sum derived from the employment. It was something which arose outside the employment. It was something to which Mr. Du Cros became entitled by reason of the disappearance of the employment." (Williams's Executors at 38).
- Chibbett v. Robinson - payment to a firm that managed a company upon termination/liquidation out of the company's 'abundant prosperity' was a "testimonial for what they had done in the past in their office which has now terminated".
- "I do not think that is taxable as a profit. It seems to me that a payment to make up for the cessation for the future of annual taxable profits is not itself an annual profit at all I do not know whether it has arisen or been discussed, and perhaps the less I say about it the better, but I should not have thought that either damages for wrongful dismissal or a payment in lieu of notice, at any rate if it was for a longish period - I will not say a payment in lieu of notice, I will say a voluntary payment in respect of breaking an agreement which had some time to run - would be taxable profits. But at any rate it does seem to me that compensation for loss of an employment which need not continue, but which was likely to continue, is not an annual profit within the scope of the Income Tax at all." (at 61).Chibbett v. Robinson (1924) 9 TC 48;
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Section 401
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Legislation:
Cases:
​Chibbett v. Robinson (1924) 9 TC 48;
Du Cros v. Ryall (1935) 19 TC 444;
CIR v. Williams's Executors (1944) 26 TC 23;
HMRC manuals:
Commentary:
See also:
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VAT
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VAT on receipt of compensation
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HMRC take a broad view of when compensation is subject to VAT
"The fundamental test of whether there is the necessary direct link between a supply and the consideration will already have been satisfied as regards a VAT-registered trader’s normal income. Thus, the question will be, why isn’t other income it has received also within the scope of VAT, particularly if it is from the same customer?" ( VATSC05910)
Legislation:
Cases:
HMRC manuals:
Commentary:
See also:
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EXAMPLES
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- Personal injury​
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Trading: for the personal injury, not a trading receipt
- Where a person is entitled to compensation for a personal injury, the compensation is for the personal injury even if it is quantified by reference to a number of factors (pain and suffering, loss of earnings/profit etc.).
- "It is accepted, for example, that damages for personal injury are compensation for the personal injury, though partly calculated by reference to the income which the injured person would have earned (see British Transport Commission v Gourley [1956] AC 185). In Lewis v Daily Telegraph Ltd [1964] AC 234it was decided that damages awarded to a company for libel are compensation for damage to its reputation, even though calculated in part by reference to the loss of profits which the libel has caused. In both cases, therefore, the damages were not taxable because they were not compensation for a revenue receipt. What both cases show is that the answer to the question of what the damages were for also provides the answer to the question of whether they arose out of the trade.” (Deeny v. Gooda Walker Ltd).
- HMRC agree:
- "Thus, damages received for such personal injuries should not be included in the computation of professional or trading receipts, even sums calculated by reference to the loss of income already sustained, or the loss of future earning power." (BIM40105).
- Not clear how some of the broader statements in Attwooll are consistent with this:
- e.g. "It has been sought to argue that moneys received from insurers are in a different category from moneys recovered from wrongdoers; but, with all possible respect to the argument which has been advanced in that respect, it seems to me to be quite without foundation. In either case the question must be, what does the sum recovered represent, and in either case the answer to that question must be that it represents profit which would otherwise have been earned by the use of the thing concerned" (at 512).​​
Employment
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Legislation:
Cases:
Deeny v. Gooda Walker Ltd [1996] STC 299;
HMRC manuals: BIM40105;
Commentary:
See also:
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- Libel compensation is 'for' damage to reputation not loss of profit
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- In Lewis v Daily Telegraph Ltd [1964] AC 234 it was decided that damages awarded to a company for libel are compensation for damage to its reputation, even though calculated in part by reference to the loss of profits which the libel has caused. In both cases, therefore, the damages were not taxable because they were not compensation for a revenue receipt. What both cases show is that the answer to the question of what the damages were for also provides the answer to the question of whether they arose out of the trade." (Deeny v. Gooda Walker Ltd at 309, Lord Hoffmann)
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Legislation:
Cases:
Deeny v. Gooda Walker Ltd [1996] STC 299;
HMRC manuals:
Commentary:
See also:
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- Damage to an asset
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​Trading
-If the asset was used in the trade, the compensation will be a receipt of the trade.
-If it was a capital asset, compensation for the cost of restoring/fixing the capital asset is a capital receipt.
- "But where there is only a partial injury, as there was in the present case, there are necessarily two elements to be considered if the owner is to be put back, so far as money can do it, in the same position in which he would have been but for the tort feasor's wrongdoing. First, he can recover the whole cost of repair, which is without doubt a capital receipt..." (Attwool at 509).
- In Donald Fisher, CoA held that increased rent payable on an existing lease due to negligence of estate agent led to compensation that was 'for' the increased rent rather than for diminution in the capital value of the lease as a result of the increased rent. ​Damages at trial would have computed based on the increased rent, not diminution in value. ​
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Legislation:
Cases:
London & Thames Haven Oil Wharves Ltd v. Attwool 43 TC 491;
Donald Fisher (Ealing) Ltd v. Spencer [1989] STC 256 (CoA);
HMRC manuals:
Commentary:
See also:
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- Complete loss of a capital asset
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​Trading
- If a capital asset is completely destroyed, compensation for that destruction is a capital receipt, even if calculated in part by reference to the loss of profit.
- "Moreover, it appears to me, with all respect to the view of the learned Judge, that there is all the difference in the world between a total loss and a partial injury. In the case of a total loss what can be recovered from the assumed wrongdoer is the value of that which has been lost. If the thing lost is a ship or a jetty which is ordinarily used for the purpose of earning profits, the fact of its profitability is an element to be considered in assessing its capital value." (Attwool at 509)
- ​But note that, under a contract (e.g. a contract of insurance), the compensation may be 'for' the lost profit rather than the loss of the asset, in which case it is a trading receipt (British Columbia Fir).
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Legislation:
Cases:
R v. British Columbia Fir and Cedar Lumber Co Ltd [1932] AC 441;
London & Thames Haven Oil Wharves Ltd v. Attwool 43 TC 491;
HMRC manuals:
Commentary:
See also:
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- Loss/damage to trading stock
- Insurance proceeds following the destruction of/damage to trading stock is a revenue trading receipt.
- "Not merely are the profits derived from the sale of goods in which a person trades of a revenue character, but insurance monies received in respect of the loss of trade goods are proper receipts to appear in a revenue account. If a company insures its stock of goods against fire and that stock is destroyed by fire, however great and valuable it may be, the receipts must be treated in exactly the same manner as receipts from a sale of the goods would have been 'treated. The trader, it 'is true, as has been said, does not trade in fires but in goods, but if he disposes of the whole of his stock by sale or if the whole of his stock is destroyed by fire and the insurance money is received, there can be no ground for differentiating for tax purposes between the purchase money and the insurance money." (Williams's Executors at 35).
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Legislation:
Cases:
CIR v. Williams's Executors (1944) 26 TC 23;
HMRC manuals:
Commentary:
See also:
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- Temporary loss of use of a physical asset
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Trading
- Negligence (tort):
- Attwool (1966) asserts the proposition that loss of use of a physical asset is actionable in its own right in the tort of negligence, even if there is no physical damage.
- On that basis, the compensation is for the loss of use not any physical damage.
- Query whether that is correct - see the law on pure economic loss.
- In particular Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 - power cut by defendant caused loss of electricity which meant that the claimant could claim for the physical damage of a failed melt, but not the loss caused by inability to carry out four further melts in furnaces.
- Note that Spartan Steel post-dates Attwool.
- If that is correct, the compensation is for failure to receive revenue trading receipts and thus a revenue trading receipt.
- Perhaps the result would have been the same even if loss of use was not independently actionable damage, on the basis that it was nevertheless a divisible loss (albeit one that could only be recovered where associated with physical damage).
- Attwooll also says that compensation for loss of use of a vehicle used for commercial purposes was a revenue receipt (at 512).
- Contractual right to damages for temporary loss of use:​
- Burmah Steam Ship - agreed contractual compensation where ship repairers exceeded the stipulated time for repair of the ship were a revenue trading receipt.
- Insurance receipts may be directly in receipt of the loss of use. See N3. Insurance proceeds.
- Some statutory schemes provide compensation for the loss of use of an asset
- Ensign Shipping Co - compensation for detention of two ships by the government during coal strikes was paid in lieu of the profits which the ships would have been earned. Held: revenue trading receipt.
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Legislation:
Cases:
Ensign Shipping Co Ltd v. CIR (1928) 12 TC 1169;
Burmah Steam Ship Company Limited v. CIR (1930) 16 TC 67;
London & Thames Haven Oil Wharves Ltd v. Attwool (1966) 43 TC 491;
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27;
HMRC manuals:
Commentary:
See also:
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- Permanent loss of use of a capital asset
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Trading
- If compensation is payable for the permanent inability to use a capital asset, that is a capital receipt.
- In Glenboig Union Fireclay, a railway company exercised a statutory power to pay compensation to prevent T from exploiting a fireclay bed that lay under a railway line. The compensation was a payment 'for the sterilisation of a capital asset' and a capital receipt.
- "In truth the sum of money is the sum paid to prevent the Fireclay Company obtaining the full benefit of the capital value of that part of the mines which they are prevented from working by the Railway Company. It appears to me to make no difference whether it be regarded as a sale of the asset out and out, or whether it be treated merely as a means of preventing the acquisition of profit that would otherwise be gained. In either case the capital asset of the Company to that extent has been sterilised and destroyed, and it is in respect of that action that the sum of £15,316 was paid. It is unsound to consider the fact that the measure, adopted for the purpose of seeing what the total amount should be, was based on considering what are the profits that would have been earned." (at 463).
- Query whether there is a distinction between a capital asset enjoyed by consuming it (the fireclay) and a capital asset enjoyed by using it - said to be 'very different' in Attwool at 510.
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Legislation:
Cases:
Glenboing Union Fireclay Co Ltd v. IRC (1922) 12 TC 427;
London & Thames Haven Oil Wharves Ltd v. Attwool (1966) 43 TC 491;
HMRC manuals:
Commentary:
See also:
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- Fruitless expenditure maintaining a capital asset that is subsequently sterilised/lost
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Trading
- In Glenboig Union Fireclay, in addition to compensation for the sterilisation of the fireclay bed, T also recovered damages for the cost of keeping the fireclay field open during years in which a dispute over its use was resolved (T succeeded, but the railway company subsequently used a statutory power to prevent the bed being worked upon paying compensation).
- Those damages were also a capital receipt.
- The answer would have been different if the expenditure turned out to be fruitful because the capital asset could subsequently be used: "In the former case, the expenditure would be shown to form a proper trading expenditure, and to be a legitimate deduction from gross profit in estimating the 'profit arising or accruing' from the Company's trade. In the latter case, it would be shown to be money spent without the possibility of return, and would therefore constitute just a loss of so much capital." (Glenboig at 449 - Court of Session, not raised in HoL).
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Legislation:
Cases:
Glenboing Union Fireclay Co Ltd v. IRC (1922) 12 TC 427;
HMRC manuals:
Commentary:
See also:
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- Late delivery of capital asset under a contract
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Capital receipt
​- Crabb v. Blue Star Line Ltd - T had an insurance policy entitling it to £500 for each day's delay in a shipbuilder delivering the new ships it ordered. It was common for T's shipbuilding contracts to provide for the purchase price to be increased in the event of early delivery and decreased in the event of late delivery, albeit that was not the case here.
- Held: the insurance sums were capital. They were not compensation for loss of profit or quantified by reference to profit. Instead, late delivery meant that the ship-builder's services were less valuable than had been contracted for.
- Equivalent to a reduction in purchase price for late delivery, which would be impossible to regard as a revenue receipt.
- No guarantee the ships would be used in T's business to produce profit (as indicated by fact that insurance not linked to lost profit).
- Burmah Steam Ship distinguished on the basis that (i) sum not calculated by reference to lost profit; and (ii) in that case, unlike the present case, T already owned the asset, whereas this was a contract to acquire an asset.
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Revenue receipt​
- See, for comparison, Burmah Steam Ship - agreed contractual compensation where ship repairers exceeded the stipulated time for repair of the ship were a revenue trading receipt.
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Legislation:
Cases:
Burmah Steam Ship Company Limited v. CIR (1930) 16 TC 67;
Crabb v. Blue Star Line Ltd (1961) 39 TC 482;
HMRC manuals:
Commentary:
See also:
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- Payment upon cancellation or alteration of an ordinary trading contract
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- Short Bros Ltd​ - T agreed to build a ship for a steamship company. Due to a slump in the shipping trade, the steamship company wanted to cancel the contract and T agreed to their cancellation in return for £100,000. T argued it was not a receipt of the trade but a receipt for not trading.
- Held: cancellation of such a contract was in the ordinary course of the trade irrespective of how common it was.
- "It seems to me that the ordinary conduct of the business of a shipbuilding company includes, not only the making of contracts for the building of ships, but the modification or alteration of those contracts."
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Legislation:
Cases:
Short Bros Ltd v. CIR (1927) 12 TC 955;
HMRC manuals:
Commentary:
See also:
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- Negligent performance of service under contract entered into in course of trade leading to revenue expense
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Compensation for negligent performance leading to revenue expense/loss is a revenue receipt
- Donald Fisher: Landlord served a rent review notice of increase on T which T's estate agent negligently failed to serve a counter-notice in response to, leading to rent above the market rent being payable. Lump sum compensation paid by estate agent. Held: compensation was revenue trading receipt.
- "So if one asks oneself: What was the nature of the loss for which the compensation was paid—what was it paid for; what was its purpose?—it seems to me that it was obviously paid for the increased rent which the taxpayer company had to pay as the result of the negligence. That was the basis of the tenant's claim in negligence against Mr Clay, and the payment was made to settle that claim." (at 261).
- "If the case had gone to trial instead of being compromised, I have no doubt that the measure of damages would have been assessed, as a matter of commonsense and convenience, by reference to the extra rent which the taxpayer company had to pay in consequence of the negligence and that there would have been no attempt on either side to quantify the consequences of the negligence in terms of a diminution of the value of the lease." (at 262).
- Deeny: compensation was paid by the managing agents of an insurance syndicate for their failure to exercise reasonable care and skill in conducting the underwriting business, which led to significant revenue expenses. Held: the compensation was a revenue expense.
- "If a trader employs someone to perform services for the purposes of his trade, the money which he realises from the performance of those services is a receipt of the trade. If the employee in breach of his legal duty fails to perform the services, or performs them badly, so that the trader realises less money than he would have done if they had been performed properly, he will be liable in damages and the damages will be a receipt of the trade. In each case the receipt arises out of the trade." (Deeny at 305)
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Legislation:
Cases:
Donald Fisher (Ealing) Ltd v. Spencer [1989] STC 256 (CoA);
Deeny v. Gooda Walker Ltd [1996] STC 299 (HoL);
HMRC manuals:
Commentary:
See also:
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