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01 Jun 09 Legal expenses - Day

The ATO has released a Decision Impact Statement on the decision of the High Court in this case. On 12 November 2008 the High Court dismissed the Commissioner's appeal from the decision of the Full Federal Court (Spender and Edmonds JJ, Dowsett J dissenting), which allowed the taxpayer's appeal against the decision of Emmett J, who had held that legal expenses incurred by the taxpayer (a Customs officer) in defending 2 of 3 sets of disciplinary charges were not deductible.

The ATO considers that the decision does not lay down any rule for the deduction of legal expenses by an employee beyond the requirement that the occasion for the expenses must be found in what is productive of the assessable income of the employee, which will turn on consideration of the scope of the taxpayer's employment: Decision Impact Statement S315/2008 (29 May 2009).

For a copy of the Decision Impact Statement, go here.

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