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Should the undivided amount of capital expenditure the taxpayer incurred on legal fees to resolve and defend several discrete legal matters be dissected as between each legal matter for the purpose of considering deductibility of the expenditure under section 40-880 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Yes. The undivided amount of capital expenditure the taxpayer incurred on legal fees should be dissected as between each discrete legal matter for the purpose of considering deductibility of the expenditure under section 40-880 of the ITAA 1997 because only part of the undivided expenditure is attributable to each distinct and severable matter.

The taxpayer, a company, incurred capital expenditure on legal fees to resolve and defend several matters brought against it and its two director/shareholders.

One of the directors/shareholders of the taxpayer (shareholder X) previously carried on a business in partnership (the partnership business) with two other parties. The other director/shareholder (shareholder Y) was an employee of the partnership business. Shareholder X was alleged to have breached the partnership agreement by leaving the partnership business without giving adequate notice. In addition, prior to the termination of the partnership, shareholder X and shareholder Y were alleged to have established a company which carried on a business in direct competition with the partnership business.

The other two partners of the former partnership took legal action against the taxpayer and its directors/shareholders on several matters.

Generally the legal fees incurred by the taxpayer related to: • defending the establishment and carrying on of its business in competition with the partnership business (expenditure in relation to the taxpayer's business for the purposes of paragraph 40-880(2)(a) of the ITAA 1997), and • establishing the termination date of the former partnership so as to determine the extent of any breach of contract and fiduciary duty by shareholder A (expenditure in relation to the business that used to be carried on by the partnership for the purposes of paragraph 40-880(2)(b) of the ITAA 1997).

While all of the legal services and advice were provided by the same supplier, the legal fees were invoiced to the taxpayer as an undivided amount even though they related to resolving and defending the two distinct legal matters above.

All legislative references are to the ITAA 1997 unless otherwise stated.

Subject to the limitations and exceptions contained in subsection 40-880(3) to subsection 40-880(9), subsection 40-880(2) provides that you can deduct, in equal proportions over a period of five income years starting in the year in which you incur it, capital expenditure you incur: (a) in relation to your business, or (b) in relation to a business that used to be carried on, or (c) in relation to a business proposed to be carried on, or (d) to liquidate or deregister a company of which you were a member, to wind up a partnership of which you were a partner or to wind up a trust of which you were a beneficiary, that carried on a business.

In the present case, the legal fees were invoiced as an undivided amount but were incurred on resolving and defending various legal matters relating to both the business the taxpayer carries on and the former partnership business. Separate legal advice and services were provided in respect of each distinct and severable legal matter.

An issue arises in these particular circumstances around whether such expenditure should be dissected between each of the businesses to which the expenditure relates for the purpose of considering the deductibility of the expenditure under section 40-880.

As the legal matters are distinct and severable from each other, as was the advice and services provided in respect of them, it is appropriate to dissect the undivided amount, and that amount is capable of dissection, into amounts expended in respect of each legal matter. Therefore, the expenditure should be dissected between each of the businesses to which the expenditure relates.

As the expenditure in this case can be dissected, the limitations and exclusions contained in subsection 40-880(3) to subsection 40-880(9) are to be applied to each amount separately.

Therefore, as the capital expenditure incurred in defending the establishment and carrying on of the taxpayer's business in competition with the partnership business is expenditure in relation to the taxpayer's business for the purposes of paragraph 40-880(2)(a), that expenditure will be subject to the limitation in subsection 40-880(3). As the capital expenditure incurred to establish the termination date of the former partnership is expenditure in relation to a business that used to be carried on by another entity (being the partnership business) for the purposes of paragraph 40-880(2)(b), that expenditure will be subject to the limitation in subsection 40-880(4). Both amounts will be subject to the limitations and exceptions in subsection 40-880(5) to subsection 40-880(9).