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Edited version of your written advice
Authorisation Number: 1012948556354
Date of advice: 29 January 2016
Ruling
Subject: Legal expenses
Question
Are you entitled to a deduction for legal expenses incurred to try to resolve a workplace bullying issue?
Answer:
Yes.
This ruling applies for the following period:
Year ended 30 June 2016
The scheme commenced on:
1 July 2015
Relevant facts
You were subjected to bullying at your workplace.
You sought legal advice and representation to assist you with the issue.
You incurred legal fees.
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, the nature of the expenditure must be considered. 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.
Legal expenses are generally deductible if they 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).
When the principal reason for incurring the legal expenses is defending the actions of the taxpayer in carrying out their employment duties through which they gain or produce assessable income, such expenses are characterised as being of a revenue nature and are deductible (Inglis v. FC of T 87 ATC 2037; and Case V116 88 ATC 737; AAT Case 4502 (1988) 19 ATR 3703).
Similarly, in FC of T v. Rowe (1995) 60 FCR 99; (1995) 31 ATR 392; 95 ATC 4691, the court accepted that legal expenses incurred in defending the manner in which a taxpayer performed his employment duties were allowable.
In your case, you were subject to bullying in the workplace. You incurred legal expenses in respect of an action to cease the bullying and to successfully undertake your employment duties.
While you were not directly defending the way in which you perform your duties, you were seeking to restore the conditions and environment of your workplace. It is accepted that the legal expenses are incidental and relevant to earning your assessable income. Therefore, the legal expenses of are an allowable deduction under section 8-1 of the ITAA 1997.