ATO Interpretative Decision
ATO ID 2003/1087 (Withdrawn)
Deductibility of fine imposed by employer
FOI status: may be released
Status of this decision: Decision withdrawn 17 November 2017.
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This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Is a taxpayer, a professional sportsperson, entitled to a deduction under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) for a fine imposed by their employer?
No. The taxpayer, a professional sportsperson, is not entitled to a deduction under section 8-1 of the ITAA 1997 for a fine imposed by their employer because there is not a sufficient nexus between the outgoing and the earning of the assessable income.
The taxpayer is a professional sportsperson who was involved in an on-field breach of the sport's code of conduct. As a result, a fine was imposed by the disciplinary body on the employer, and the employer passed the fine onto the taxpayer. The taxpayer's employment contract requires them to obey all instructions of their employer. The breach was committed at the instructions of the employer.
The type of breach committed by the taxpayer can be distinguished from other on field incidents on the basis that:
- the breach was of a professional sports code of conduct, not an Australian or foreign law
- the breach occurred as a result of complying with an employment contract term under staff instruction and
- the offence was not of a type that required adjudication by a sports tribunal.
Reasons for Decision
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 except where the outgoings are of a capital, private or domestic nature, or relate to the earning of exempt income.
However, under section 26-5 of the ITAA 1997, a deduction will not be allowed for an amount payable by way of penalty under an Australian or foreign law. In this case, the fine was not payable under an Australian or foreign law and therefore section 26-5 of the ITAA 1997 has no application.
Therefore, fines and penalties imposed by professional and sporting bodies may be deductible (depending on the facts) under section 8-1 of the ITAA 1997, if the requisite connection with income exists.
Whether an expense has the requisite connection with gaining or producing assessable income has been well established through case law. Some of these principles are discussed below.
The question to be asked is whether the occasion of the outgoing operates to give it the essential character of a working expense, ie whether the occasion of the outgoing is to be found in the income earning activity itself ( Fletcher v. Federal Commissioner of Taxation (1991) 173 CLR 1;  HCA 42; 91 ATC 4950; (1991) 22 ATR 613).
The taxpayer must show a real connection between the expenditure and their activities as an employee in order for the expenditure to be deductible ( Federal Commissioner of Taxation v. Smith (1981) 147 CLR 578;  HCA 10; 81 ATC 4114; (1981) 11 ATR 538).
Incidental and relevant
For an outgoing to be deductible from a taxpayer's assessable income, the expenditure must have been incidental and relevant to the gaining or producing of the taxpayer's assessable income ( Ronpibon Tin NL v. Federal Commissioner of Taxation (1949) 78 CLR 47;  HCA 15; (1949) 8 ATD 431; (1949) 4 AITR 326).
In Commissioner of Taxation v. Cooper (1991) 29 FCR 177;  FCA 164; 91 ATC 4396; (1991) 21 ATR 1616, Hill J said at FCR 198:
It will often, therefore, be necessary to analyse with some care what the operations or activities are that are regularly carried on by the taxpayer for the production of income, and to determine whether the outgoings (or where relevant the losses ) are incidental and relevant to those operations or activities. [Emphasis added]
Hill J further considered whether the requirement by the employer to incur certain expenditure, would make the expenditure 'incidental and relevant' at FCR 200:
Assuming that that letter was a direction lawfully given under Mr Cooper's contract, it does not follow that the expenditure must be deductible. An employer may require an employee to travel to and from work by a particular mode of transport, but the fact that the employee is required, as a term of his employment, to incur a particular expenditure does not convert expenditure that is not incurred in the course of the income producing operations into a deductible outgoing. If it did, then, no doubt, employers would be besieged by employees with requests that the employer should require the particular expenditure to be incurred.
Whilst in this case, the penalty has arisen as a result of action in the course of on-field activity, the expenditure is not made for the purpose of earning assessable income. The fine arose as a result of something that the taxpayer did, but the expense was not a normal part of the taxpayer's earning activity. Nor was it designed to earn the taxpayer assessable income. There was merely a temporal coincidence between the outgoing and the income earning activity.
Accordingly, the expense does not have the requisite connection with gaining or producing assessable income and is not deductible under section 8-1 of the ITAA 1997.
|Date of Amendment
|7 March 2016
||Reasons for Decision
||Updated case law references to include medium neutral citations.
Updated for clarity.
||Added medium neutral citations.
Date of decision: 20 November 2003
|Year of income:||Year ended 30 June 2002|
Income Tax Assessment Act 1997
Federal Commissioner of Taxation v. Cooper
(1991) 29 FCR 177
 FCA 164
91 ATC 4396
(1991) 21 ATR 1616
Fletcher v. Federal Commissioner of Taxation
(1991) 173 CLR 1
 HCA 42
91 ATC 4950
(1991) 22 ATR 613
Federal Commissioner of Taxation v. Smith
(1981) 147 CLR 578
 HCA 10
81 ATC 4114
(1981) 11 ATR 538
Ronpibon Tin NL v. Federal Commissioner of Taxation
(1949) 78 CLR 47
 HCA 15
(1949) 8 ATD 431
(1949) 4 AITR 236
ATO Interpretative Decisions overturned by this decision
ATO ID 2003/321
Siebel/TDMS reference number: 3635523; 1-7K32QFE
Business line: Individuals
Date of publication: 5 December 2003