Private ruling: Work related expenses
Date of advice: 2 May 2018
Published: July 2018
Ruling period: Year ending 30 June 20XX
Date scheme commenced: 1 July 20YY

Ruling: Q1: Are you entitled to a deduction for legal expenses incurred to resolve a workplace bullying issue? | A1: Yes.

Relevant facts and circumstances: You believe that you were subjected to bullying at your workplace. Your solicitor lodged a complaint with your employer seeking an end to the alleged bullying. After investigation your employer advised that the allegations were judged to be “unsubstantiated”. Your solicitor then lodged a second complaint which your employer refused to acknowledge. This second complaint sought to escalate the initial complaint and to request a proper investigation of the alleged bullying. Your solicitor then lodged a complaint with a workplace tribunal. This complaint sought to re-open the initial complaint as well as acknowledgement of your second complaint. It also sought to allow you to return to work in a safe environment. A hearing of the tribunal was held on Summer 20XX in which the Commissioner directed you to re-lodge the initial complaint. You did so but this complaint has not been acknowledged as yet. You sought legal advice and representation to assist you with the issue. You incurred legal expenses in preparing, lodging and servicing these various complaints. The issue remains unresolved.

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 exempt income. In determining whether a deduction for legal expenses would be 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 allege that you were subject to bullying in the workplace. You incurred legal expenses in respect of 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 are an allowable deduction under section 8-1 of the ITAA 1997.