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Edited version of your written advice

Authorisation Number: 1051449518297

Date of advice: 15 November 2018

Ruling

Subject: Legal fees

Question

Are the legal expenses you incurred in respect of ‘the Supreme Court Proceeding’ deductible under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes, the legal expenses are deductible under section 8-1. This is because they were incurred in gaining or producing the taxpayer’s assessable income, and are neither capital nor private in nature.

This ruling applies for the following periods:

Year ending 30 June 2015

Year ending 30 June 2016

The scheme commences on:

1 July 2014

Relevant facts and circumstances

The work carried out falls into three broad categories. Legal expenses incurred in the third category relate to the matters described as the Supreme Court Proceeding. On July 20XX certain companies in the group commenced proceedings against you in the Supreme Court.

The legal fees you incurred in FYXX related broadly to consideration of the merits of the plaintiffs’ claim and related matters.

The legal fees you incurred in FYXX also related to certain procedural matters.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 8-1

Reasons for decision

Summary

The legal expenses were incurred for the purpose of defending the manner in which you carried out your role as a director from which you derived assessable income. The expenses were not of a capital or private nature. Therefore the legal expenses that relate to the Supreme Court Proceeding are deductible under section 8-1.

Detailed reasoning

Section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) allows a deduction for a loss or an outgoing to the extent to which it is incurred in gaining or producing assessable income, except where the loss or outgoing is of a capital, private or domestic nature.

Therefore, in determining whether a deduction is allowable under section 8-1, the nature of the expense must be considered.

For legal expenses to constitute an allowable deduction, it must be shown that they are incidental or relevant to the production of the taxpayer's assessable income or business operations, (Ronpibon Tin NL & Tong Kah Compound NL v. Federal Commissioner of Taxation (1949) 78 CLR 47; (1949) 4 AITR 236; (1949) 8 ATD 431).

Further, legal expenses are generally deductible if the expenses arise out of the day to day activities of the taxpayer's business (Herald and Weekly Times Ltd v. Federal Commissioner of Taxation (1932) 48 CLR 113; (1932) 39 ALR 46; (1932) 2 ATD 169), and the legal action has more than a peripheral connection to the taxpayer's income producing activities (Magna Alloys and Research Pty Ltd v. FC of T (1980) 49 FLR 183; (1980) 11 ATR 276; 80 ATC 4542).

In your case, certain companies in the group commenced proceedings against you in the Supreme Court.

You incurred legal expenses in defending yourself against these claims.

The legal expenses relate to your role as a director and we accept that you were remunerated for this role.

In incurring the expenses you were seeking to defend the manner in which you carried out these roles (actual and imputed). As such, it would be reasonable in these circumstances that the legal expenses are fully deductible under section 8-1:

The objective purpose in defending the charges the subject of the Supreme Court Proceeding was to defend the way in which you carried out your role as a director in the group companies. As such, the legal expenses were incurred in gaining or producing your assessable income for the purposes of section 8-1.

The legal expenses are not capital in nature. They arose out of your day to day business activities and conduct as a person operating unregistered managed investment schemes. They do not relate to the acquisition or preservation of any structural asset.

We also consider that the legal expenses are not private in nature. While the Commissioner states in the Decision Impact Statement for FCT v Day [2008] HCA 53 that ‘costs of defending criminal charges will rarely, if ever, be deductible under section 8-1’, we consider that the exception to this general rule is where the charge is brought under a provision of a statute that the taxpayer is subject to only by virtue of their employment or income earning activities. In your case, defending charges brought under the Corporations Act 2001 qualify as being charges arising under legislation specific to your income earning activities as a company director. As such, the expenses cannot be characterised as being of a private nature.


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