ATO Interpretative Decision

ATO ID 2001/667

Income Tax

Legal Expenses - to recoup full entitlement to a superannuation lump sum payment
FOI status: may be released
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Status of this decision: Decision Current
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.


Is the taxpayer entitled to a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for legal expenses incurred in recouping their full entitlement to a lump sum superannuation payment?


No, the taxpayer is not entitled to a deduction under section 8-1 of the ITAA 1997 for legal expenses incurred in recouping their full entitlement to a lump sum superannuation payment.


The taxpayer received a partial lump sum payment from their employer's superannuation fund.

The taxpayer took legal action, and incurred legal expenses, in order to receive their full entitlement to their full lump sum superannuation payment.

The superannuation payment received by the taxpayer was for the loss of their future earning capacity calculated until their retirement age.

The taxpayer received the balance of their lump sum superannuation entitlement in the current income year. The lump sum payment received qualified as a superannuation benefit.

The taxpayer included the taxable component of the superannuation benefit in their assessable income.

Reasons for Decision

Section 8-1 of the 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.

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] HCA 34. The nature or character of the legal expenses follows the advantage which 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.

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

The lump sum superannuation benefit, being a payment for the loss of the taxpayer's earning capacity, is a capital receipt.

The taxpayer incurred the legal expenses in order to obtain the superannuation benefit. Although the taxable component of the superannuation benefit is included in the taxpayer's assessable income, the superannuation benefit retains its character as a capital receipt.

As the legal expenses were incurred in gaining a capital sum they will also be of a capital nature and are therefore not deductible under section 8-1 of the ITAA 1997.

Amendment History

Date of amendment Part Comment
30 May 2014 Facts Updated legislative terms
Reasons for Decision Updated legislative terms and case reference
Legislative References Updated legislative references
Case References Add medium neutral case reference

Date of decision:  11 September 2001

Legislative References:
Income Tax Assessment Act 1997
   section 8-1
   section 307-8
   subsection 301-20(1)
   subsection 301-35(1)
   subsection 301-95(1)
   subsection 301-105(1)
   subsection 301-115(1)

Case References:
Hallstroms Pty Ltd v. Federal Commissioner of Taxation
   (1946) 72 CLR 634
   [1946] HCA 34

Related ATO Interpretative Decisions
ATO ID 2001/622

Legal expenses
Employer sponsored superannuation funds
Lump sum superannuation benefits

Business Line:  Small Business/Individual Taxpayers

Date of publication:  30 November 2001

ISSN: 1445-2782

  Date: Version:
  11 September 2001 Original statement
You are here 30 May 2014 Updated statement