Private ruling: Legal fees
Date of advice: 11 October 2017
Published: March 2018
Ruling period: Year ended 30 June 2017
Date scheme commenced: 1 July 2016

Ruling: Q1: Are the legal expenses incurred in pursuit of payment from a superannuation fund an allowable deduction? | A1: No.

Relevant facts and circumstances: You contracted a medical condition, further complications developed, and you have since been deemed unable to return to work due to the condition. You sought legal advice in order to claim Total and Permanent Disablement and income protection income from your superannuation fund. Your claims were successful and resulted in your receipt payments from your superannuation for disability. A portion of the payments from this source were assessable. You have not yet received any income protection funds. You incurred legal fees for representation in your case.

Relevant legislative provisions: Income Tax Assessment Act 1997 Section 8-1

Reasons for decision: Summary: 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 assessable income. In determining whether a deduction for legal expenses is allowed under section 8-1 of the ITAA 1997, the nature of the expenses 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 is of a capital nature, then the expenses incurred in gaining the advantage will also be of a capital nature. 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 incurred legal expenses in order to obtain (TPD) benefits from your superannuation fund. These payments were for the loss of your earning capacity and therefore considered capital receipts. The payments remain capital receipts despite the fact that a portion of the lump sum payments are assessable. As the payments you received as a result of your legal action are capital in nature, the expenses incurred in pursuing your claims are also capital in nature. Consequently, no deduction is allowable under section 8-1 of the ITAA 1997 for the legal expenses you incurred, as expenditure of a capital nature is expressly excluded.