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Edited version of your private ruling
Authorisation Number: 1012483783599
Ruling
Subject: Legal expenses
Question 1
Are you entitled to a deduction for the legal expenses incurred in relation to a redundancy payment?
Answer
No.
This ruling applies for the following periods:
Year ended 30 June 2013
The scheme commences on:
1 July 2012
Relevant facts and circumstances
Your employment contract stated that you would receive a termination/redundancy payment.
You invoked a clause in your employment contract that allowed you to exercise your right to leave the company.
You exercised your right and the company refused to pay you your termination benefits.
You have incurred legal expenses to try and recoup your termination benefits.
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.
In determining whether a deduction for legal expenses is allowed under section 8-1 of the ITAA 1997, the nature of the expenditure must be considered (Hallstroms Pty Ltd v. Federal Commissioner of Taxation (1946) 72 CLR 634; (1946) 3 AITR 436; (1946) 8 ATD 190). The nature or character of the legal expenses follows the advantage that is sought to be gained by incurring the expenses. If the advantage to be gained is of a capital nature, then the expenses incurred in gaining the advantage will also be of a capital nature.
A redundancy payment, being compensation for the loss of the expectation of continuity of service, is a payment that is capital in nature. The payment is made to compensate the taxpayer for the loss of their employment position (Case Y24 91 ATC 268; AAT Case 6942 (1991) 22 ATR 3184).
Redundancy payments are treated as eligible termination payments and subject to special tax treatment that may result in some or all of the amount being included in the taxpayer's assessable income. However the fact that a capital payment is specifically brought to account as assessable income will not change the nature of the payment. An amount that is capital in nature will remain capital notwithstanding that it is specifically included in the assessable income of the taxpayer.
In your case you have incurred legal expenses to take action against your former employer. The redundancy payment that you are seeking is capital in nature and consequently the legal expenses incurred in obtaining the redundancy payment are also capital in nature.
Accordingly, no deduction is allowable under section 8-1 of the ITAA 1997 for the legal expenses that you incur.