Edited version of your private ruling

Authorisation Number: 1012463680046

Ruling

Subject: Work related expenses - meals and accommodation

Question

Are you entitled to a deduction for accommodation and meals expenses incurred while working away from home?

Answer

No

This ruling applies for the following period

Year ended 30 June 2012

The scheme commences on

1 July 2011

Relevant facts and circumstances

You are a mine employee.

The company you work for has a health, safety and environment standards manual containing a fatigue management policy.

Under the policy you are prevented from commuting to and from the mine site and your usual place of residence before and after your rostered shifts. The fatigue policy allows you in any 24 hours a maximum shift time of 14 hours that includes travel to and from the mine site. A risk assessment must be undertaken before work hours can be extended past 14 hours.

You work a seven day rotating roster cycle with a normal shift of over 12 hours.

The travel time between your usual place of residence and your work is approximately X hours.

When travelling between home and your place of residence in between shifts you would be breaching your employer's fatigue policy as the total shift hours would exceed the allowable shift time of 14 hours unless a risk assessment allowed you to work in excess of 14 hours..

To comply with your employer's working conditions you have rented a property close to your work and have incurred rental and food costs whilst living away from your usual place of residence for work.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 8-1.

Reasons for decision

Section 8-1 of the Income Tax Assessment Act 1997 (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.

As a general rule, expenditure on accommodation while working away from home is not allowed as a deduction. These costs are essentially 'living expenses' of a private or domestic nature. The fact that income cannot be earned unless these expenses are incurred is not determinative of deductibility. The expenses are a prerequisite to the earning of assessable income rather than being incurred in the course of gaining that income.

This principle was derived by the High Court in Lunney & Hayley v. Federal Commissioner of Taxation (1958) 100 CLR 478; (1958) 7 AITR 166; 77 ATC 4076: (Lunney's Case) where it was found that the expenses in travelling from home to work did not have a connection with the activities carried out by the taxpayers to earn their income. It was accepted that although the travel expenses were necessary and a prerequisite to earning income, the travel itself was not an activity that earned the income.

The issue of expenses incurred in relation to accommodation near the workplace while maintaining a family residence in another location was considered in the cases of Federal Commissioner of Taxation v. Toms 89 ATC 4373: (1989) 20 ATR 466 (Toms' Case) and Federal Commissioner of Taxation v. Charlton 84 ATC 4415; (1984) 15 ATR 711 (Charlton's Case).

These cases established that accommodation expenses incurred by an individual who lives away from home to carry out the duties of their employment will not be deductible. Expenses of this nature were found to be private in nature and incurred before or after the activity of earning assessable income.

In Charlton's Case, the taxpayer was a pathologist employed to carry out autopsies for the local coroner in Bendigo. He rented a flat in Bendigo in order to avoid excessive travelling and fatigue, while maintaining a permanent family home in Melbourne, located approximately 150 kilometres away. The taxpayer claimed that the rental was incurred in the production of assessable income, but the Court ruled that the expense of accommodation was considered private and domestic in nature and would not be deductible under section 8-1 of the ITAA 1997.

Similarly, the Federal Court in Toms' Case disallowed a forest worker's deduction for the cost of maintaining a caravan and other living expenses. The taxpayer incurred the expenses in providing temporary accommodation at the base camp. These expenses were dictated not by work but by private considerations. Therefore the essential character of the expenditure was considered to be of a private or domestic nature.

In your case, you have incurred accommodation and other expenses to work away from home due to the distance of your employment from where you normally reside. The expenses you incurred are a prerequisite to the earning of your assessable income. They were incurred in order to enable you to earn income but were not incurred in the course of actually gaining or producing that income. The fact that your employer has a fatigue policy does not change the private character of the expenses.

The accommodation and meal expenses are considered to be of a private or domestic nature. Therefore, you are not entitled to a deduction for the accommodation or meal expenses under section 8-1 of the ITAA 1997.