Case U219

Members:
RK Todd DP

Tribunal:
Administrative Appeals Tribunal

Decision date: 27 November 1987.

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R.K. Todd (Deputy President)

The question before the Tribunal in this reference was whether the applicant, a plain-clothes member of the Australian Federal Police, could claim as a deduction under sec. 51(1) of the Income Tax Assessment Act 1936 ("the ITAA") the cost associated with wearing a suit at work.

2. Evidence, both oral and documentary, was put before the Tribunal that, although the applicant was provided with uniforms, he was required specifically not to wear uniform but rather to wear a suit and tie while on duty. An allowance of $769 was paid to the applicant due to the requirement that he wear plain clothes.

3. The applicant also gave evidence, which I accept, that he did not normally wear clothes of the type required and that he had to purchase $800.25 worth of clothing in order to be able to comply with the direction to wear plain clothes. He also described how he wore different clothes when travelling to and from work as he rode a motor cycle and his work clothes were unsuitable for riding the motor cycle.

4. The claim was argued on three alternative bases. First, that the applicant had to expend the amounts in question in order to comply with a direction given to him in the course of employment, and that but for this direction he would not have purchased clothes of this kind. Secondly that, due to duties involving the maintenance of a facsimile machine, his clothing was subject to unusual wear and tear. The third, and principal, submission was that as he was provided with free uniforms which he could, but for the direction, wear to work he would normally have spent nothing on clothing for work and, therefore, there was no private component in the expenditure in question.

5. There have been many cases, before this Tribunal and the Boards of Review, argued on the first of these bases, the most recent being Case U95,
87 ATC 575. In that matter the Tribunal set out and applied the considerations to be taken into account in the following passage at p. 580:

"There is no one test which will satisfy all facts, but clearly on the decided cases, relevant considerations include:

• (1) Express or implied requirements of the employer or business concerning clothing;
• (2) The extent to which the clothing is distinctive or unique to the nature of the employment or business having regard to particular, special or accepted work clothing requirements, including its availability to be worn by members of the general public;
• (3) The extent to which the clothing is used solely for work;
• (4) The extent to which the clothing is unsuitable for any activity other than work;

and no doubt other factors may become relevant depending on particular facts or circumstances of a given case.

...

There was no stipulation as to the style, length or material of the clothing. The common factor was merely the black and white colour combination which is not in itself a distinctive colour association.

...

The employer requirements did not, therefore, come within the description of `uniform' as used in common parlance as discussed in Case R55,
84 ATC 411 (supra) instead being clothing united only in regard to colour.

There is nothing distinctive or unique about the combination of clothing which would identify the wearer as a John Martin's shop assistant or even a shop assistant from another department store. The colour combination of the clothing would be included in the range of acceptable street dress unassociated with business or employment, as well as a combination of colours sometimes worn by female drink or food waiting staff. Further the clothing could be purchased and worn by members of the general public unassociated with the taxpayer's employment.

Whilst the taxpayer only wore the clothing at work or whilst travelling to and from work, there was no impediment placed on her by her employer to restrict the wearing of the clothing outside her work hours. The clothing was not unsuitable for any use other than employment; to restrict its use was a choice made by the taxpayer.

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ATC 1223

For these reasons, therefore, we consider that the essential character of the expenditure of the taxpayer on clothing does not satisfy the requirement of subsec. 51(1)..."

6. Applying these tests to the clothing of the applicant in the immediate case, it is clear that the applicant's employer required that he wear clothing of a particular standard and that the applicant would not usually wear that style of clothing outside work. That clothing, however, is identical to that worn by many if not most professional and business men and is suitable for use outside his employment. The claim before the Tribunal is consequently unable to succeed on the first basis submitted.

7. For a submission based on "abnormal wear and tear" to be sustained there needs to be, as a general rule, considerable evidence of the additional expenses incurred. This was not present in this case. Although evidence was given that it was part of the applicant's duties to maintain a facsimile machine and that on one occasion, not necessarily during the year in dispute, he had spilt chemicals on a suit, I am unable to find that abnormal wear and tear was suffered. For a case to be made out on these grounds I believe that an applicant has to show one of two things: either that, due to specific events, expenditure was incurred during the year of income on replacing clothing damaged at work, or that due to the nature of the trade, such as being a mechanic, clothes worn at work required cleaning and/or replacement additional to that which would be normal. In either case the expenditure would, I believe, need to be itemised or detailed in some way.

8. The final and major submission put by the applicant's representative was that as the applicant was provided with a uniform he would, in the normal course of events, have spent nothing on work clothing. The expenditure involved in purchasing the suits was incurred solely because he was directed not to wear his uniform but rather to wear a suit to work. Therefore, it was submitted, the expenditure was not only incurred in producing the assessable income, but also contained no private component.

9. This submission fails on a fundamental point. From the time when the applicant was required not to wear his uniform, the free provision of such uniform became irrelevant. He became placed in the same position as a taxpayer who leaves a job in which a uniform is supplied and moves to a position where he is required to wear a suit. The matter must therefore be decided without reference to the uniform.

10. Having found that the provision of the uniform is irrelevant, the question then falls to be decided according to the normal tests as set out above. As the clothing in question is of the type worn by many professional and business men, and the evidence was unable to prove abnormal wear and tear during the year in dispute, the claim must be disallowed.

11. For the reasons given above the Tribunal affirms the objection decision under review.