Case H3

Judges:
FE Dubout Ch
N Dempsey M

Court:
No. 3 Board of Review

Judgment date: 13 February 1976.

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F.E. Dubout (Chairman); N. Dempsey (Member): This taxpayer, an employee of one of the trading banks, in the year ended 30th June, 1974, in accordance with the relevant award, was paid a living-away-from-home allowance, the total received being $239.

2. In her return for the relevant year, a deduction was claimed of $135 as ``Living-away-from-home allowance deduction''. The deduction claimed was not allowed and the matter is now before the Board.

3. An agreed statement of facts indicates that her family home is situated in a central western country town, some considerable distance from Brisbane. Unable to obtain employment in this town, she came to Brisbane late in January, 1973, and initially obtained work with a firm of solicitors. On the 19th March, 1973, she obtained work with the Bank and she is still employed there.

4. She was born on the 18th July, 1955 and in terms of the Banks' award, she was paid the allowance. If the mere fact of being paid a living-away-from-home allowance was the decisive point, she would succeed in her claim. However, to do so, the allowance must come within the definition contained in sec. 51A(3). This definition is as follows -

``51A(3) For the purposes of this section -

• `living-away-from-home allowance' means so much of any allowance or benefit paid or granted in money or otherwise as the Commissioner is satisfied is in the nature of compensation to the employee for the additional expenses (not being expenses which are allowable as a deduction under section 51) incurred by him or which would be incurred by him if the allowance or benefit were not received, through having to live away from his usual place of abode in order to perform his duties as an employee.''

5. It is thus clear from the definition that to qualify for a deduction, the Commissioner (or a Board reviewing his decision) must be satisfied that the recipient of the allowance has sustained additional expense through having to live away from the usual place of abode in order to fulfil the employment.

6. As was stated earlier, taxpayer, prior to coming to Brisbane, resided with her parents in

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the country town. The bedroom in her parents' home that she occupied before coming to Brisbane is still retained for her use when she returns home on holidays or for other reasons. Clothing owned by her is still housed in this room. She did not pay anything to her parents in relation to her occupancy and retention of this room, but she made odd gifts to the parents and at times, bought different things for the home.

7. In a case reported as
2 T.B.R.D. Case B47, p. 204, Mr. Nimmo, then a member of the Board, set out what he considered was the meaning and intention of the definition of ``living-away-from-home allowance'' and his views on the matter have been accepted by the Boards in subsequent cases. We do not propose to repeat what was said by Mr. Nimmo in that case. We think that the present case must be decided by determining where for the purposes of the definition was the place of the taxpayer's ``usual place of abode''.

8. A case to which the Board was referred and which we are unable to differentiate from this case is
10 T.B.R.D. Case K64, p. 330;
9 C.T.B.R. (N.S.) Case 9, p. 83. This case also concerned an unmarried junior bank clerk who previously resided in a country town some 500 miles distant from Sydney and who took employment in Sydney.

9. The head note of this case in 9 C.T.B.R. (N.S.) Case 9, p. 83 reads as follows -

``Allowable deductions - Living-away-from-home allowance - Unmarried junior bank clerk - Appointment to branch in capital city 500 miles from home town - Occasional visits to parental home - Whether living away from his usual place of abode - Income Tax Assessment Act 1936-1958, sec. 51A.

In January, 1957, taxpayer, who had up to that time been living with his parents in a country town some 500 miles from Sydney, commenced employment at a Sydney branch of a bank. On coming to Sydney he boarded with a relative until August, 1957 and then transferred to new lodgings where he shared a room with another bank officer. He brought most of his clothing to Sydney, but some of his personal belongings remained at his parents' home. During the year ended 30th June, 1958 he visited his parents' home for holiday weekends on three occasions and also spent his annual three weeks holiday there. During that year, the bank paid him £91 as an allowance for his having to live away from home. Taxpayer claimed that the amount of £91 qualified as a `living-away-from-home allowance' for the purposes of sec. 51A.

Held, disallowing taxpayer's claim: on the evidence, taxpayer's usual place of abode during the relevant year was in Sydney and, accordingly, sec. 51A had no application.''

10. At p. 332 (T.B.R.D.), p. 84 (C.T.B.R.) of the report, the Chairman, Mr. Burke, in para. 6 said -

``When the taxpayer, a single man, accepted permanent employment in the Sydney metropolitan area without any real prospect of returning to live in his home town in the near future, he is effect abandoned his parents' residence if not entirely as a place of abode at least as a `usual place of abode'. From that time onwards in point of fact he resided in Sydney, making only spasmodic trips to visit his parents. These visits home, whilst no doubt preserving the link between the taxpayer and his family, were not of sufficient frequency or duration, in my opinion, themselves to constitute the family home the `usual place of abode' of the taxpayer and, so far as I can see, there is, on the facts of this case, little else on which reliance could be placed to support a finding that the taxpayer's place of abode was other than in Sydney.''

The other members of the Board agreed with the remarks of the Chairman.

11. The facts of this reference appear to us to be no different from the facts of 10 T.B.R.D. Case K64 supra, and in our opinion, when this taxpayer left her family home and took employment in Brisbane, then for the purpose of sec. 51A, Brisbane became her ``usual place of abode.'' The fact that the employer might, for the purposes of the award, regard her parental home as her usual place of abode, does not assist and it is interesting to note that the allowance provided in the award ceases after the age of 20 years.

12. For the reasons given and adopting the meaning of ``usual place of abode'', that was adopted by Board of Review No. 1 in Case K64 supra, we uphold the decision of the Commissioner and confirm the assessment.

Claim disallowed