Case A20

Judges:
JL Burke Ch
RC Smith M
RE O'Neill M

Court:
No. 1 Board of Review

Judgment date: 21 March 1969. (Released by the Board 21 April 1969.)

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J. L. Burke (Chairman), R. C. Smith and R. E. O'Neill (Members): During the whole of the year ended 30 June 1966 the taxpayers who with their family lived at Mandagery, 23 miles east of Parkes, rented a flat in Parkes for the purpose of accommodating their three children of school age during each period Monday to Friday of the school term. The rent of ten dollars per week and electricity charges totalling forty dollars are claimed as to one-half each by the husband and wife, Mr. and Mrs. Orange, under sec. 82J of the Income Tax Assessment Act 1936-1966 as being education expenses for the purposes of the section in that they were expenses necessarily incurred by them for or in connection with the full time education of their children.

2. The evidence before the Board establishes that up to January 1964 the taxpayers' children attending school in Parkes were accommodated at a boarding house there but the arrangement lapsed, the establishment having closed down in anticipation of the opening of a school hostel. The taxpayers then had difficulty in having their children boarded under the one roof. Accordingly they rented the flat in question for the purpose of providing shelter for the children during the school week. The children were driven five miles to the station at Mandagery on Monday mornings to get the train to Parkes, stayed at the flat during the week until Friday and came home by train on the Friday evening. Mrs Orange drove to Parkes at midday each Monday and stayed at the flat until midday Friday to look after the children. Their father, a farmer and grazier, made a very occasional visit to the flat when in Parkes on business but did not stay overnight. The flat, a one bedroom, one living room, unit, was not availed of for entertaining and was not used by the family at the weekends or during the school holidays.

3. The daily transport of the children from Mandagery to their school at Parkes would have posed certain problems. There was no train back to Mandagery on Monday evenings and no train in on Tuesday mornings, the school bus pick-up point was twelve miles from the family residence and the road thereto was impassable in wet weather. Boarding the children out was firstly resorted to as mentioned above and after the period under review when the school hostel was opened in January 1967 the taxpayers' children, then at high school, were booked in there and the tenancy of the flat was surrendered.

4. The flat, the rent of which is claimed as a deduction under sec. 82J, was not in any sense a town house. On the facts it is clear that the sole purpose for the taxpayers taking the tenancy thereof was to enable the children to pursue, in the only manner practicable, their full time education. Thus seen the expenditure falls clearly in our view within the scope of sec. 82J and the fact that the children's mother stayed under the same roof four nights a week to care for them during the periods they were going day by day to school and were perforce living away from their true home does not for that reason only convert the expenditure into one which was not necessarily incurred by the taxpayers for or in connection with their children's full-time education.

5. We would allow the taxpayers' claims. Assessments to be amended accordingly.

Claim allowed