Case K2

Members: HP Stevens Ch

RE O'Neill M
CF Fairleigh QC

Tribunal:
No. 1 Board of Review

Decision date: 21 December 1977.

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R.E. O'Neill (Member): The Board has for review the Commissioner's decision disallowing a claim by the taxpayer, a solicitor (employee), for a deduction of $110 being the cost of a two piece suit which he bought during the year ended 30 June 1974.

2. His employment involved him in much litigation work requiring his attending at a variety of judicial proceedings where the presiding authority invariably insisted on solicitors in court wearing ``formal clothing''. The suit in question was darkish blue with thin vertical stripes. It did not, and was not intended by the taxpayer to, mark him out as a solicitor and, as the taxpayer readily agreed, it passed unnoticed in the streets and on public transport. But in light of current customs and usages his wearing it on social occasions would have marked him out from others of his age group.

3. I accept the foregoing evidence as I also do his evidence that he bought the suit for no purpose other than to wear it in the course of carrying out the duties of his employment and that in fact he never did wear it other than for work even though, as he said, he did wear it when going from his home to work and when returning home from work.

4. That the need for the taxpayer to wear such a suit was occasioned by judicial attitudes to the dress of solicitors attending in court is not of great consequence in deciding whether its cost was ``incurred in gaining or producing the assessable income'' within the meaning of those words as judicially explained in numerous cases. Indeed his case would be no stronger even if it were established that it was an express term of his employment that he should wear just such a suit as is in question. Thus in
13 T.B.R.D. Case N60 it was an express condition that the employee should provide at his own cost, and wear on the job, a ``uniform'' consisting of long sleeved white shirt, yellow tie, dark grey trousers and black shoes. Nevertheless the Board decided unanimously that no part of the employee's expenditure on such items of clothing was deductible. The view taken was that the expenditure was wholly of a private nature.

5. So here it seems to me that although the wearing of such a suit as is in question was related to the circumstances of his employment, the taxpayer's expenditure in buying it was wholly of a private nature. It was the cost of providing himself with clothing of a character worn by men generally in our social system even if it be accepted that the customs and usages of today do not dictate the wearing of the same style of clothing outside business or professional hours. I would therefore uphold the Commissioner's decision on the objection.