The AAT has confirmed that accounting and legal expenses of over id=”mce_marker”00,000 incurred in connection with a former company director obtaining an annulment of his bankruptcy (which followed his failure to comply with a DPN) were not deductible under either s 8-1 or s 25-5 of the ITAA 1997. This was because the AAT found that the expenses were not “incurred” by the director, but were incurred by his brother with no legal obligation to repay him. In particular, the AAT found that the existence of an “agency relationship” between the brothers was irrelevant to the question whether the director had “incurred” the expenses given there was no evidence that he was legally obligated to repay his brother and all that existed was, in effect, a “gentleman’s agreement” to do so at some time in the future.
In any event, the AAT found that the director would not have satisfied the requirements for deductibility under either s 8-1 or 25-5. This was essentially because the AAT found there was an insufficient nexus between the expenses and his income earning activities as a company director as the expenses were incurred in seeking annulment of his bankruptcy (and in challenging proof of debts by a liquidator) and that in these circumstances, the “occasion” of the expenses and their “essential character” could not be said to be related to his income earning activities nor to his compliance with the directors’ penalty notices.
And [if the AAT were wrong about those income earning nexus conclusions, it would have similarly held] that the expenses would have been non-deductible as expenses of a “capital” or “private” nature incurred to remove the stigma of being bankrupt and to restore his personal good name, reputation and financial position.
(AAT Case [2013] AATA 281, Re Healy and FCT, AAT, Ref Nos 2012/3882-83, Walsh SM, 7 May 2013.)
[LTN 88, 10/5/13]