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Is the sum paid by the taxpayer in settlement of a sexual harassment and victimisation claim deductible under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997)?

No. The sum paid by the taxpayer in settlement of a sexual harassment and victimisation claim is not deductible under section 8-1 of the ITAA 1997.

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

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

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

The taxpayer agreed to pay a settlement amount for pain, suffering and cost. In exchange all parties agreed to take no further action.

Section 8-1 of the ITAA 1997 allows a deduction for all losses and outgoings to the extent that 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.

For the settlement sum to constitute an allowable deduction, it must be shown that it was incidental or relevant to the production of the taxpayer's assessable income ( Ronpibon Tin NL & Tong Kah Compound NL v. Federal Commissioner of Taxation (1949) 78 CLR 47; (1949) 4 AITR 236; (1949) 8 ATD 431).

In determining whether a deduction for the settlement sum is allowable under section 8-1 of the ITAA 1997, the nature of the expenditure must also be considered ( Hallstroms Pty Ltd v. Federal Commissioner of Taxation (1946) 72 CLR 634; (1946) 3 AITR 436; (1946) 8 ATD 190).

Therefore expenses as a result of legal action are generally deductible if the expenses 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).

Similarly, in the 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. No significance was placed by the court on the taxpayer's status as an employee.

Generally, the treatment of a settlement sum or damages payment will follow the treatment of the other legal costs incurred in relation to a particular matter. Legal expenses incurred by a taxpayer in defending a sexual harassment and victimisation claim made by another employee do not arise as a consequence of the performance of the taxpayer's duties by which they derive their assessable income.

Accordingly, the settlement sum paid by the taxpayer in relation to the sexual harassment and victimisation claim is not an allowable deduction under section 8-1 of the ITAA 1997 as it was not incurred in gaining or producing assessable income.