INCOME TAX ASSESSMENT ACT 1936 (ARCHIVE)
This section does not apply to the 1997-98 year of income or a later year of income.
Note:
Division 34 (Non-compulsory uniforms) of the Income Tax Assessment Act 1997 deals with the deductibility of expenditure incurred on non-compulsory uniforms.
View history note
Hide history noteA deduction is not allowable under this Act to an employee for a non-compulsory uniform/wardrobe expense incurred on or after 1 September 1993.
[ CCH Note: S 5 of No 227 of 1992, as amended by No 82 of 1994, s 125, effective 24 December 1992, provides for the following transitional provision:
``Transitional - `no deduction' rule does not apply if expense incurred before 1 July 1995 and clothing designs approved by Commissioner
5
The rule in subsection 51AL(1) of the Principal Act as amended by this Act does not apply if:
(a) the expense is incurred before 1 July 1995; and
(b) before that day and whether before or after the expense is incurred, the Commissioner, on application by the employer of an employee, gives the employer a written statement to the effect that the Commissioner is of the opinion that the designs of the set of one or more items of clothing to which the expense relates were a `corporate uniform' or a `corporate wardrobe' within the meaning of Taxation Ruling IT 2641; and
(c) if the application for the statement is made after 31 August 1993 - sets of one or more items of clothing having those designs were available for purchase by employees of the employer on or before 31 August 1993.'']
The rule in subsection (1) does not apply if:
(a) at the time the expense was incurred by the employee, the designs of the set of one or more items of clothing to which the expense relates were entered on the Register of Approved Occupational Clothing kept under subsection (5); and
(b) the applicant for the entry of the designs was the employer of the employee. 51AL(3) Meaning of ``non-compulsory uniform/wardrobe expense''.
For the purposes of this section, a non-compulsory uniform/wardrobe expense is expenditure to the extent to which it is incurred in connection with a non-compulsory uniform/wardrobe and includes, but is not limited to, expenditure incurred:
(a) in acquiring an item of clothing included in a non-compulsory uniform/wardrobe; or
(b) in repairing, cleaning or maintaining an item of clothing included in a non-compulsory uniform/wardrobe; or
(c) in upgrading or improving an item of clothing included in a non-compulsory uniform/wardrobe; or
(d) in connection with borrowing money for the purposes of acquiring an item of clothing included in a non-compulsory uniform/wardrobe. 51AL(4) Meaning of ``non-compulsory uniform/wardrobe''.
For the purposes of the application of this section to an employee, a non-compulsory uniform/wardrobe is a set of one or more items of clothing (other than occupation specific clothing or protective clothing), where:
(a) the items of clothing, when considered as a set, distinctively identify the wearer as a person associated, directly or indirectly, with:
(i) the employer of the employee; or
(ii) a group consisting of:
(A) the employer of the employee; and
(B) one or more associates of the employer (within the meaning of section 26AAB ); and
(b) either:
(i) the employer of the employee does not have an express policy to the effect that, except in special circumstances:
(A) the employee is not allowed to substitute an item of clothing not included in the set for an item of clothing included in the set when the employee is performing duties of his or her employment; and
(B) all of the other employees of the employer belonging to the same class as the employee (other than employees engaged for temporary or relief purposes) are not allowed to substitute an item of clothing not included in the set for an item of clothing included in the set when they are performing duties of their employment; or
(ii) the employer has such a policy but does not consistently enforce it.
The Industry Secretary must keep a register, to be known as the Register of Approved Occupational Clothing, listing such designs as are required to be on the register because of this section.
The Industry Secretary must cause the Register of Approved Occupational Clothing to be made available for inspection at any reasonable time by any person on request.
The Treasurer must, as soon as practicable after the commencement of this section, formulate written guidelines ( ``approved occupational clothing guidelines'' ) setting out criteria that must be met by designs of sets of one or more items of clothing if the designs are to be entered on the Register of Approved Occupational Clothing.
51AL(8) Guidelines to be published etc.The Treasurer must cause the approved occupational clothing guidelines to be:
(a) published in the Gazette ; and
(b) made available, without charge, to any interested person. 51AL(9) Matters to be taken into account in making guidelines.
In making approved occupational clothing guidelines about the entry of the designs of particular kinds of sets of one or more items of clothing, the matters to which the Treasurer is to have regard include, but are not limited to:
(a) the extent to which the designs of the items of clothing, when considered as a set, distinctively identify the wearer as a person associated, directly or indirectly, with:
(i) the applicant for the entry of the designs; or
(ii) a group consisting of:
(A) the applicant for the entry of the designs; and
(B) one or more associates of the applicant for the entry of the designs (within the meaning of section 26AAB ); and
(b) the nature of the business or activities carried on by the applicant for the entry of the designs. 51AL(10) Guidelines to be disallowable.
An instrument formulating approved occupational clothing guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
51AL(11) Applications for entry on the Register of Approved Occupational Clothing.An employer may apply to the Industry Secretary for the designs of a set of one or more items of clothing (other than protective clothing) to be entered on the Register of Approved Occupational Clothing.
(a) in writing; and
(b) in a form approved in writing by the Industry Secretary; and
(c) accompanied by such information as the Industry Secretary requires.
After considering the application, the Industry Secretary must decide to:
(a) grant the application; or
(b) refuse the application.
If the Industry Secretary has not made a decision under subsection (13) before whichever time ( ``eligible time'' ) is the later of the following times:
(a) the end of the period ( ``original 90-day period'' ) of 90 days after the day on which the application was received by the Industry Secretary;
(b) if the Industry Secretary, by written notice given to the applicant within the original 90-day period, requests the applicant to give further information about the application - the end of the period of 90 days after the Industry Secretary receives the further information;
then, at the eligible time, the Industry Secretary is taken to have made a decision under subsection (13) to refuse the application.
If the Industry Secretary makes a decision under subsection (13) before the eligible time, the Industry Secretary must give written notice of the decision to the applicant.
A notice under subsection (15) relating to a refusal must set out the reasons for the refusal.
51AL(17) When entry takes effect.If the Industry Secretary decides to grant the application, the entry takes effect on:
(a) the day on which the decision is made; or
(b) if the applicant requests - such earlier date as the Industry Secretary specifies.
The Industry Secretary must not grant an application unless the Industry Secretary is satisfied that the designs meet the criteria set out in the approved occupational clothing guidelines.
The Industry Secretary must remove an entry from the Register of Approved Occupational Clothing if requested to do so by the employer who applied for the entry.
The Industry Secretary may correct a clerical error or an obvious mistake in an entry in the Register of Approved Occupational Clothing and, if the Industry Secretary does so, the correction takes effect on the day on which the entry took effect.
Applications may be made to the Tribunal for review of decisions of the Industry Secretary under subsection (13) or (17).
If the Industry Secretary makes a decision under subsection (13) or (17) and gives to a person whose interests are affected by the decision written notice of the decision, that notice must:
(a) in all cases - include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975 , application may be made to the Tribunal, by or on behalf of any person whose interests are affected by the decision, for review of the decision; and
(b) except where subsection 28(4) of that Act applies - include a statement to the effect that a request may be made under section 28 of that Act by or on behalf of such a person for a statement setting out the findings on material questions of fact, referring to the evidence or the material on which those findings were based and giving the reasons for the decision;
but a failure to comply with this subsection does not affect the validity of the decision.
The Industry Secretary may, by writing, delegate any or all of his or her functions and powers under this section to a person in the Industry Department:
(a) who is an SES employee or an acting SES employee; or
(b) whose classification level appears in Group 7 or 8 of Schedule 1 to the Classification Rules under the Public Service Act 1999 ; or
(c) who is acting in a position usually occupied by a person with a classification level of the kind mentioned in paragraph (b).
The Industry Secretary must give the Commissioner information about entries on the Register of Approved Occupational Clothing if requested to do so by the Commissioner.
For the purposes of this section, the definition of salary or wages in section 221A applies as if paragraph (q) of that definition had not been enacted.
51AL(26) Definitions.In this section:
approved occupational clothing guidelines
means guidelines made under subsection (7).
class of employees
means a class of employees based on the level or category of work.
clothing
includes accessories (for example: belts, ties, scarves and hats).
design
, in relation to an item of clothing, includes features of colour, construction, durability, ornamentation, pattern and shape.
disease
includes any mental or physical ailment, disorder, defect or morbid condition whether of sudden onset or gradual development and whether of genetic or other origin.
employee
has the same meaning as in section
221A
.
employer
has the same meaning as in section
221A
.
employment
, in relation to a person, means the holding of any office or appointment, the performance of any functions or duties, the engaging in of any work, or the doing of any acts or things that results in the person being treated as an employee.
Industry Department
means the Department of Industry, Science and Technology.
Industry Secretary
means the Secretary to the Industry Department.
occupation specific clothing
, in relation to an employee, means clothing that, disregarding any feature of the clothing that distinctively identifies the employee as a person associated, directly or indirectly, with:
(a) the employer of the employee; or
(b) a group consisting of:
(i) the employer of the employee; and
(ii) one or more associates of the employer (within the meaning of section 26AAB );
distinctively identifies the employee as a member of a particular profession, trade, vocation, occupation or calling.
protective clothing
means clothing of a kind that is for use wholly or principally:
(a) to protect the wearer or another person from, or from risk of:
(i) death; or
(ii) the contraction, aggravation, acceleration or recurrence of a disease; or
(b) to protect the wearer from, or from risk of:
(i) injury (including the aggravation, acceleration or recurrence of an injury); or
(ii) the loss or destruction of, or damage to:
(A) other clothing worn by the wearer; or
(B) an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the wearer.
Register of Approved Occupational Clothing
means the Register of Approved Occupational Clothing required by subsection (5).
Senior Executive Service office
(Repealed by No 146 of 1999)
(Omitted by No 171 of 1995)
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