| Disclaimer This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your written advice
Authorisation Number: 1013116633094
Date of advice: 7 November 2016
Ruling
Subject: Legal expenses
Question
Are you entitled to a deduction for legal expenses?
Answer
Yes
This ruling applies for the following period(s)
Year ended 30 June 2015
Year ended 30 June 2016
Year ending 30 June 2017
The scheme commences on
1 July 2014
Relevant facts and circumstances
You were employed at a firm in a particular field.
During this time a dispute arose in respect of your employment that initially led to you seeking legal advice.
As a result of this legal advice you received you lodged a number of grievances in respect of this dispute.
Due to an unsatisfactory response your grievances were escalated.
You were then suspended from your employment.
Soon after, your employer issued you with a letter regarding the termination of your employment.
In response to this action by your employer and legal advice you received you brought applications in the industrial relations commission to protect your employment.
Due to ill health you decided to settle your claim and resign from your employment. Your employer threatened to pursue you for their legal costs and you decided to walk away from the dispute with no compensation.
You have incurred legal fees in defending yourself against claim made by your employer against you.
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 8-1
Reasons for decision
Section 8-1 of the Income Tax Assessment Act 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.
For legal expenses to constitute an allowable deduction, it must be shown that they were incidental or relevant to the production of your assessable income. Also, in determining whether a deduction for legal expenses is allowable, 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.
In FC of T v. Rowe (1995) 31 ATR 392; 95 ATC 4691, the taxpayer, an employee, was suspended from normal duties and was required to show cause why he should not be dismissed after several complaints were made against him. A statutory inquiry subsequently cleared him of any charges of misconduct or neglect. The court accepted that the legal expenses incurred by the taxpayer in defending the manner in which he performed his duties were allowable. The activities which produced the taxpayer's income were what exposed him to the liability against which he was defending himself. Since the inquiry was concerned with the day to day aspects of the taxpayer's employment, it was concluded that his costs of representation before the inquiry were incurred by him in gaining assessable income.
In your case, it is accepted that you were required to defend the way in which you discharged your employment duties. Consequently you are entitled to a deduction for legal expenses relating to this defence.