Deductions: legal expenses - defending right to practise

Is the taxpayer, who is carrying on a business of providing professional services, entitled to a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for legal expenses incurred in defending their right to practise in that profession?

No. The taxpayer, who is carrying on a business of providing professional services, is not entitled to a deduction under section 8-1 of the ITAA 1997 for legal expenses incurred in defending their right to practice in that profession.

The taxpayer, a member of a professional association, is carrying on a business of providing professional services.

The taxpayer was convicted of criminal offences. The offences did not arise from the day to day conduct of the taxpayer's business activities.

Following the taxpayer's conviction, disciplinary proceedings were commenced against them by the professional association.

As a result of the disciplinary proceedings the taxpayer was suspended from practising for an indefinite period.

The taxpayer incurred legal expenses and costs in relation to their defence to the disciplinary proceedings.

Section 8-1 of the ITAA 1997 allows a deduction for all losses or outgoings to the extent to which they are incurred in gaining or producing assessable income, or are necessarily incurred in carrying on a business for that purpose. However, where the outgoings are of a capital, private or domestic nature, or relate to the earning of exempt income they will not be deductible (subsection 8-1(2) of the ITAA 1997).

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; (1946) 8 ATD 190). 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.

The courts, on a number of occasions, have determined legal expenses to be an allowable deduction if the expenses arise out of the day to day activities of the taxpayer's business ( Magna Alloys & Research Pty Ltd v. Federal Commissioner of Taxation 80 ATC 4542; (1980) 11 ATR 276). The action out of which the legal expenses arise has to have more than a peripheral connection to the taxpayer's business or income earning activities. The expense may arise out of litigation concerning the taxpayer's professional conduct. ( Putnin v. Federal Commissioner of Taxation (1991) 27 FCR 508; 91 ATC 4097; (1991) 21 ATR 1245 and Elberg v. Federal Commissioner of Taxation (1998) 82 FCR 440; 98 ATC 4454; (1998) 38 ATR 623).

However if the expenses were incurred in protecting the underlying profit yielding structure or assets of the business they are considered to be capital in nature and will not be deductible.

In Case V140 88 ATC 874; AAT Case 4596 (1988) 19 ATR 3859 ( Case V140 ), a solicitor was denied a deduction for legal expenses incurred in defending certain allegations before the Statutory Committee of the Law Society of New South Wales, concerning the solicitor's trust account. The Committee ordered the taxpayer be suspended from practice for a period of twelve months, and to pay the costs of the Law Society. The Administrative Appeals Tribunal (AAT) held that the payments made by the taxpayer were not deductible under subsection 51(1) of the Income Tax Assessment Act 1936 (ITAA 1936) as the payments were characterised as capital expenditure.

Further, in Case X84 90 ATC 609; AAT Case 6528 (1990) 21 ATR 3721 ( Case X84 ), the AAT held that legal expenses incurred by a medical practitioner in defending charges brought against him at a Medical Disciplinary Tribunal inquiry, were not deductible under subsection 51(1) of the ITAA 1936 because the expenditure was incurred to protect a structural asset, that is, their registration as a medical practitioner, and was of a capital nature.

In the circumstances here, the criminal offences did not arise out of the day to day carrying on of the taxpayer's business. The expenses were incurred in defending disciplinary proceedings held to review the taxpayer's right to continue practising in their profession. The taxpayer's right to practise is part of the profit yielding structure of their business, and legal expenses incurred in protecting that structure are of a capital nature.

Therefore, the taxpayer is not entitled to a deduction under section 8-1 of the ITAA 1997 for the costs incurred in defending their right to practice.