Legal Expenses - preparing a loan agreement

Is the taxpayer entitled to a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for legal expenses incurred in drawing up a loan agreement?

No. The taxpayer is not entitled to a deduction under section 8-1 of the ITAA 1997 for legal expenses incurred in drawing up a loan agreement.

The taxpayer made a loan to a company at commercial interest rates.

The loan is secured by a mortgage over commercial premises.

The taxpayer engaged a solicitor to draw up a loan agreement that would protect their interests.

The taxpayer incurred legal expenses in relation to this matter.

Section 8-1 of the 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.

The courts have considered the meaning of 'incurred in gaining or producing assessable income'. In Ronpibon Tin NL & Tong Kah Compound NL v. Federal Commissioner of Taxation (1949) 78 CLR 47; (1949) 4 AITR 236; (1949) 8 ATD 431 the High Court stated that: 'For expenditure to form an allowable deduction as an outgoing incurred in gaining or producing the assessable income it must be incidental and relevant to that end. The words "incurred in gaining or producing the assessable income" mean in the course of producing such income.'

The expenditure must therefore be related to the production of assessable income and not be incurred at a point too soon to be deductible (FC of T v. Maddalena (1971) 2 ATR 541; 71 ATC 4161).

The legal expenses incurred by the taxpayer to draw up the loan agreement were not incurred in the course of gaining or producing the assessable income from the investment. The expenditure occurred at a point too soon to be part of the income producing process. It is expenditure that is associated with putting the income earning investment in place. Accordingly, the legal expenses incurred by the taxpayer are not deductible under section 8-1 of the ITAA 1997.