ATO Interpretative Decision

ATO ID 2002/1068

Income Tax

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Issue

Is the taxpayer, employed as a driver, entitled to a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for contributions paid into a traffic fund?

Decision

No. The taxpayer, employed as a driver, is not entitled to a deduction under section 8-1 of the ITAA 1997 for contributions paid into a traffic fund.

Facts

The taxpayer is employed as driver.

The taxpayer contributes to a traffic fund by way of a weekly levy.

The fund provides the following benefits for members:

•

payment of fines for traffic offences incurred whilst performing their duties as an employee driver; and

•

payments for legal representation in the event a member disputes a driving charge or a fine.

Reasons for Decision

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.

In determining whether a deduction for the traffic fund levy 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 levy follows the advantage that is sought to be gained by incurring the expense. If the advantage to be gained is of a capital or private nature, then the expenses incurred in gaining the advantage will also be of a capital or private nature.

The payment of the levy is in the nature of an indemnity whereby the fund agrees to indemnify the taxpayer upon the occurrence of a future potential economic loss. The payment does not relate to a specific economic loss, rather a loss that may be incurred due to the imposition of any traffic fine or related legal expense. While the costs involved in obtaining some specific legal services may have a connection with earning the taxpayer's assessable income, the payment of the levy has no such connection. The taxpayer has not incurred this expense in earning their assessable income, rather the expense is in the nature of a capital expense incurred in order to secure a potential future benefit unrelated to the taxpayer's day to day activities.

Furthermore, penalties or fines imposed for breaches of the law committed whilst exercising a trade or undertaking employment are not deductible. The nature of the penalty or fine severs it from constituting an income-producing expense (Madad v. Federal Commissioner of Taxation 84 ATC 4739; 15 ATR 1118).

The principle objective of the fund is to indemnify members against future economic loss arising out of breaches of the traffic code. Thus the levy paid by the taxpayer to the traffic fund is considered to be too remote from the earning of the taxpayer's assessable income. The traffic fund levy cannot be described as an expense incurred by the taxpayer in earning their assessable income. Accordingly, the taxpayer is not entitled to a deduction for the amount of the levy under section 8-1 of the ITAA 1997.

Year of income:  Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1997
   section 8-1

Case References:
Hallstroms Pty Ltd v. Federal Commissioner of Taxation
   (1946) 72 CLR 634
   (1946) 3 AITR 436
   (1946) 8 ATD 190

Keywords
Associations & membership expenses
Deductions & expenses
Fines expenses
Legal action
Legal expenses
Trade union & employee associations
Work related expenses

Siebel/TDMS Reference Number:  CW3166965

Business Line:  Small Business/Individual Taxpayers

Date of publication:  28 November 2002

ISSN: 1445-2782