ATO Interpretative Decision
ATO ID 2002/666
Income TaxLegal Expenses - taking defamation action
FOI status: may be released
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Status of this decision: Decision Current
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Is the taxpayer entitled to a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for legal expenses incurred in taking defamation action?
No. The taxpayer is not entitled to a deduction under section 8-1 of the ITAA 1997 for legal expenses incurred in taking defamation action.
The taxpayer is an employee.
A letter was published allegedly containing defamatory comments about the taxpayer's abilities and experience.
The taxpayer took defamation action against the author of the letter. The claims listed in the action were damages, aggravated damages, costs and interest. The basis of the taxpayer's action was that they had been held up to public ridicule and contempt and had suffered damage to their credit and reputation and continued to suffer damage to their credit and reputation. There was no indication that the taxpayer's employment was at risk.
The defamation action was eventually settled and the taxpayer received a letter retracting the comments.
In the course of the defamation action the taxpayer incurred legal expenses.
Reasons for Decision
Section 8-1 of the ITAA 1997 allows a deduction for all losses and outgoings to the extent to which they are incurred in gaining or producing assessable income except where the outgoings are of a capital, private or domestic nature, or relate to the earning of exempt income.
In determining whether a deduction for legal expenses is allowed under section 8-1 of the ITAA 1997, the nature of the expenditure must be considered (Hallstroms Pty Ltd v. Federal Commissioner of Taxation (1946) 72 CLR 634;  HCA 34; (1946) 3 AITR 436; (1946) 8 ATD 190). The nature or character of the legal expenses follows the advantage that is sought to be gained by incurring the expenses. If the advantage to be gained is of a capital nature, then the expenses incurred in gaining the advantage will also be of a capital nature.
The courts, on a number of occasions, have determined legal expenses to be an allowable deduction if the expenses arise out of the day to day activities of the taxpayer's business. The action out of which the legal expense arises has to have more than a peripheral connection to the taxpayer's business or income earning activities. The expense may arise out of litigation concerning the taxpayer's professional conduct.
In FC of T v. Rowe (1995) 60 FCR 99; (1995) 31 ATR 392; 95 ATC 4691, the court accepted that legal expenses incurred in defending the manner in which a taxpayer performed his employment duties were allowable. No significance was placed by the court on the taxpayer's status as an employee.
However, there must be an evident connection between the expenditure in instituting the proceedings and the taxpayer's earning activities. Legal expenses are also capital or private in nature where the legal action taken is to protect the taxpayer's personal good name and reputation (Case U102 87 ATC 621; AAT Case 72 (1987) 18 ATR 3515).
The taxpayer's legal expenses were not sufficiently connected with the income earning activities of the taxpayer and were essentially private or capital in nature and character. The need for them arose out of the taxpayer's reaction to what they saw as damage to their credit and reputation.
The taxpayer's legal expenses incurred in taking defamation action are therefore not deductible under section 8-1 of the ITAA 1997 as they are considered to be insufficiently connected with the taxpayer's income earning activities and are private or capital in nature.
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Year of income: Year ended 30 June 2001
Income Tax Assessment Act 1997
AAT Case 72
(1987) 18 ATR 3515
87 ATC 621 FC of T v. Rowe
(1995) 60 FCR 99
(1995) 31 ATR 392
95 ATC 4691 Hallstroms Pty Ltd v. Federal Commissioner of Taxation
(1946) 72 CLR 634
 HCA 34
(1946) 3 AITR 436
(1946) 8 ATD 190
Deductions & expenses