1051237471183 | Legal database

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Edited version of your written advice

Authorisation Number: 1051237471183

Date of advice: 19 June 2017

Ruling

Subject: Travel and accommodation

Question:

Are you entitled to a deduction for any living and travel expenses while working temporarily away from home?

Answer:

This ruling applies for the following period

Year ended 30 June 2017

The scheme commenced on

1 July 2016

Relevant facts

You worked for an employer who required you to be on call from the workplace for the whole weekend once every three months.

During those weekends you had to be less than a 30 minute drive away from the workplace.

Your permanent place of residence at that time was considerably more than 30 minutes away, in good traffic conditions, which did not meet your employer’s requirements.

In order to meet your work requirements, on those weekends you stayed in a hotel or similar accommodation closer to work.

You paid for your meals, travel and accommodation for those weekends, and you were not paid any living away from home allowance.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 8-1

Reasons for decision

Section 8-1 of the Income Tax Assessment Act 1997 allows a deduction for all outgoings to the extent to which they are incurred in gaining or producing assessable income, or are necessarily incurred in carrying on a business for that purpose. However, a deduction is not allowable for outgoings that are of a capital, private or domestic nature.

Generally, accommodation expenses are private in nature and are not deductible.

However, in Lunney v. FC of T (1958) 100 CLR 478 the Full High Court laid down the principle that for a deduction to be allowable it is not enough for the expenditure to be an essential prerequisite to the derivation of assessable income. In that case it was held that the costs incurred by a taxpayer in travelling to the place where they work are expenses incurred in order to enable them to earn income but are not expenses incurred in the course of earning that income.

The issue of expenses incurred in relation to accommodation near the work place while maintaining a family residence in another location was considered in FC of T v. Toms 89 ATC 4373; (1989) 20 ATR 466 (Toms' Case).

In Toms' Case, the taxpayer was a forest worker who during the working week lived in a caravan in a bush camp 108 kilometres from his family home in Grafton. He claimed it was too far to travel each day to his work in the forest, so that it was necessary to establish a caravan at the camp. He would return home on weekends. He claimed the costs of maintaining his caravan and other living expenses such as the cost of heating and lighting. The Federal Court considered that the caravan was rendered necessary as much by the taxpayer's choice of the place of his residence in Grafton as by his choice of employment in the forest, and its purpose was to enable him to retain his residence at Grafton although employed in the forest. It was held that the expenses incurred in relation to the temporary accommodation near the workplace while maintaining a family residence in another location were dictated not by his work but by private considerations, and therefore were not deductible.

In your case, you incurred living expenses such as meals, travel and accommodation to enable you to live closer to your work place. Whilst these expenses would not be incurred if you were not required by your employer to live closer to the workplace, the expenses are a prerequisite to the earning of assessable income. They are incurred in order to enable you to earn income but are not incurred in the course of gaining or producing that income.

A deduction is therefore not allowable for your meals, travel and accommodation under section 8-1 of the ITAA 1997.

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