Case L25

Judges:
HP Stevens Ch
CF Fairleigh QC
JR Harrowell M

Court:
No. 1 Board of Review

Judgment date: 18 April 1979.

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H.P. Stevens (Chairman); C.F. Fairleigh Q.C. and J.R. Harrowell (Members): The question for decision in this reference is whether or not a deduction is allowable in terms of sec. 51(1) in respect of the cost of travelling to and accommodation at a place where the taxpayer worked - such place being different from that where her husband and children resided.

2. When the taxpayer finished her academic studies in State A, the only university at which she could obtain a position in her chosen field was in another State, B. She accepted this position, commuting weekly between A and B by air and boarding for the time away. In her evidence the taxpayer said:

``... I had two teenage children living at home and my husband was working (in A)... and the job that I was offered was only in the first instance for three years so it would have been silly for him to give up a permanent job to move to (B) which meant that he had to stay in (A) and so I started travelling up and down. I only had to be away for about two nights a week because I managed to arrange my teaching time in three days a week which meant I worked at home for two days.''

3. In support of her claim the taxpayer said that, although she did ``not know the legal position very well, it seemed to me then and now to be a very difficult position if, after working for all those years to be qualified as a... and to be fortunate enough to obtain a position as a..., that I was not able to do that work and it seemed to me therefore necessary to spend the money in travelling to the place where I could do the work that I am qualified for and that is the only place at that time or since.''

4. On the other hand it was argued for the Commissioner that no deduction was allowable since:

• (a) the amounts ``are not incurred in gaining or producing assessable income, but rather were a prerequisite to that activity'', and
• (b) the expenditures were inherently ``of a private or domestic nature''.

In support reference was made to
Lunney and Hayley v. F.C. of T. (1958) 100 C.L.R. 478;
F.C. of T. v. Faichney 72 ATC 4245; and to the decision in Case K29,
78 ATC 281. In discussion subsequent to the address on behalf of the Commissioner the cases of
Lodge v. F.C. of T. 72 ATC 4174 and
F.C. of T. v. Maddalena 71 ATC 4161 were also adverted to.

5. It is understandable that, after listening to a purview of the above decisions, the taxpayer should comment:

``I do not know what can be done about it, perhaps the law will not allow it, but it does not seem reasonable, whatever the law is, to have to pay to lose a large part of one's income in travel.''

6. This Board is bound by the principles inherent in the above decisions and therefore must hold that the expenditure here at issue does not meet the requirements of sec. 51(1).

7. The Commissioner's decision on the objection is to be upheld and the amended assessment for the year ended 30 June 1976 is to be confirmed.

Claim disallowed