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Are legal fees incurred in defending a sexual harassment charge deductible under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997)?

No, legal fees incurred in defending a sexual harassment charge are not deductible under section 8-1 of the ITAA 1997 as they are expenses of a capital or private nature.

The taxpayer is an employee. The duties of the taxpayer do not include advising other employees on the performance of their work.

Another employee lodged a complaint of sexual harassment and victimisation against the taxpayer with the relevant Government Authority.

The taxpayer denied the allegations and in defending the charge engaged a solicitor for which they paid certain costs.

The matter proceeded to the relevant Government Authority where it was resolved through a conciliation agreement.

Section 8-1 of the ITAA 1997 states that a you can deduct from your assessable income any loss or outgoing to the extent that it is incurred in gaining or producing your assessable income and excludes losses or outgoings 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 the taxpayer's assessable income, Ronpibon Tin NL v. FC of T (1949) 78 CLR 47; 8 ATD 431; 4 AITR 236.

Also, 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) 3 AITR 436; 8 ATD 190), as the nature or character of the legal expenses follows the nature of the associated payment.

Thus, legal expenses must arise from a taxpayer's day to day performance by which he or she derives their assessable income ( The Herald and Weekly Times Ltd v. FC of T (1932-33) 48 CLR 113; (1932) 39 ALR 46; 2 ATD 169; Inglis v. FCT 87 ATC 2037; Case V116 88 ATC 737; AAT Case 4502 (1988) 19 ATR 3703).

Furthermore, the legal expenses must have arisen from the duties that the taxpayer performs to derive his or her assessable income ( FC of T v. Rowe (1995) (1995) 131 ALR 622; 95 ATC 4691; 31 ATR 392).

The legal expenses incurred by the taxpayer defending the sexual harassment and victimisation claim made by another employee did not arise from the performance of the taxpayer's duties from which they derived assessable income. This decision is supported in Case U102 , 87 ATC 621; AAT Case 5376 (1989) 20 ATR 4001; Case W94 89 ATR 792; AAT Case 5376 (1989) 20 ATR 4001.

Thus, the expense incurred by the taxpayer is of a capital or private nature and is not an allowable deduction.