Case R95

Judges:
KP Brady Ch
JE Stewart M
DJ Trowse M

Court:
No. 2 Board of Review

Judgment date: 20 September 1984.

---

K.P. Brady (Chairman), J.E. Stewart and D.J. Trowse (Members)

The question for decision in this case is whether an amount of $80 claimed in respect of the purchase of gluten-free bread mix and cornflour is a medical expense within the meaning of that term in sec. 159P of the Income Tax Assessment Act 1936 so as to qualify as a rebatable amount for the purposes of sec. 159N of that Act.

2. Upon the Commissioner's disallowance of the taxpayer's claim and the disallowance of the taxpayer's objection against that action, the matter has come before this Board for review. At the hearing, the taxpayer represented himself and gave evidence under oath. The Commissioner was represented by one of his officers.

3. From the evidence it emerged that both the taxpayer and a dependent son, now aged about 17 years, have suffered for many years (if not since birth) from a medical condition known as coeliac disease. It appears that the diagnosis of the complaint was made in 1969 following biopsy tests which involved the whole family.

4. We were told that coeliac disease affects the internal lining of the small bowel, known as mucosa, and leads to near total loss from that lining of the finger-like processes which are known as villi. The loss of villi affects the absorption into the body of essential nutrients and causes a consequent deficiency in various vitamins, protein, folic acid, iron and calcium. It has been established, in consequence of medical research, that the disease is caused by a sensitivity of the internal mucosa to gluten, which is the protein part of wheat, rye, barley and oats. Corn, on the other hand, contains virtually no gluten.

5. Coeliac sufferers remain sensitive to gluten throughout their lives and, in that sense, are never cured. However, the evidence (including the contents of a publication entitled ``What you need to know about coeliac disease'' which was tendered in evidence) indicates that a rigid gluten-free diet enables the villi to grow again and the consequential proper and necessary absorption of nutrients to take place. Strict adherence to the use of gluten-free foods enables coeliacs to live perfectly normal lives.

6. Since 1969, both the taxpayer and his son, in consequence of advice given to them at about that time by hospital authorities and also by legally qualified medical practitioners, have abstained from using products or prepared foodstuffs which contain gluten. It is understood that since then, because of their consumption of gluten-free foods only, they have not been troubled by coeliac disease although, it seems, both continue to be under medical supervision to ensure that their medical condition remains stable. It appears that their diet includes bread, scones and pastries which are made with a special gluten-free bread mix, and casseroles, sponge cakes, etc. which rely for the thickening process upon the use of gluten-free cornflour.

7. A medical prescription is not required, nor was one given, for the purchase of the gluten-free bread mix and cornflour which products are obtainable under different trade names in a wide range of retail and similar outlets. In the year of income ended 30 June 1979, i.e. in the year in issue, the taxpayer purchased his supplies of those products in bulk from several such outlets and expended an amount of $130 for them. However, for tax purposes, he claimed only an amount of $80, being the amount of $130 less (as per a note accompanying his return of income) the ``estimated cost of equivalent amount of ordinary bread and flour''. It appears that, for the purposes of the estimate, the taxpayer sought to calculate the extra cost of the products and food prepared with gluten-free ingredients by taking into account the cost of standard bread and other food which might be consumed without regard to a gluten content.

8. Having regard to the circumstances of the case and the grounds of objection, the taxpayer's claim falls for consideration under sec. 159N and 159P which, so far as relevant, read:

``159N(1) In this section, `rebatable amount' means an amount that, under any of the sections 159P to 159X (inclusive), is to be treated as a rebatable amount for the purposes of this section.

...''

``159P(1) An amount paid by the taxpayer in the year of income as medical expenses in respect of himself, or in respect of a dependant who is a resident,... shall, for the purposes of section 159N, be treated as a rebatable amount in respect of that year of income.

...

---

ATC 635

(4) In this section -

...

• `medical expenses' means payments -
  • ...
  • (d) for therapeutic treatment administered by direction of a legally qualified medical practitioner;

...''

9. The question for our consideration, therefore, is whether the amount in issue, which is associated with the purchase of gluten-free bread mix and cornflour, can properly be described as a payment for therapeutic treatment administered by direction of a legally qualified medical practitioner.

10. The terms therapy and therapeutic are not defined in the Assessment Act and it becomes necessary, therefore, to have regard to their ordinary dictionary meanings for the purposes of determining the sense in which the word ``therapeutic'' is used in sec. 159P. The Shorter Oxford English Dictionary provides the following meanings:

``Therapeutic: 1: that branch of medicine which is concerned with the remedial treatment of disease, the art of healing.

Therapy: the medical treatment of disease; curative medical treatment.''

11. Similarly, the word ``treatment'' is not defined in the Act and it becomes necessary to have regard also to its ordinary dictionary meaning. Various meanings attributed to the word in the Shorter Oxford English Dictionary include:

``1. conduct, behaviour, action or behaviour towards a person, etc.; usage

...

3. management in the application of remedies; medical or surgical application or service

4. subjection to the action of a chemical agent.''

12. ``Treatment'', in its various meanings, is a word of general import which would appear to take its operative meaning for present purposes from the particular context in which it appears. In sec. 159P(4)(d), therefore, it would appear to take its meaning from the antecedent word ``therapeutic'' which according to its dictionary meaning is concerned with the remedial treatment of disease or curative medical treatment. Therefore, the term ``therapeutic treatment'' in the context in which it appears in subsec. (4)(d), which for its operation is dependent upon action taken by a legally qualified medical practitioner, would appear to be concerned with, and to depend upon, the exercise of professional skill which, in the instant case, is to remedy the disease or disability of coeliac, or to lessen its ill-effects or the pain and suffering which it occasions.

13. We consider that support for this conclusion is to be found in the ordinary dictionary meanings of the words ``administered by direction'', which in the subsection link the part to be played by the medical practitioner in relation to the treatment to be undertaken. For convenience, we paraphrase these meanings which have been obtained from the Shorter Oxford English Dictionary. In short, they indicate, in our opinion, that therapeutic treatment, to fall within the meaning of the term as used in subsec. (4)(d), must be ``managed'', ``carried on'', or ``applied'', ``according to'', or ``in conformity with'', the ``guidance'' and/or ``instructions'' of a medical practitioner. However, it will be observed that the administering of the treatment (as distinct from the ``direction'' function) may be undertaken by an institution, e.g. a hospital, or by a person who need not be a medical practitioner.

14. However, we are not satisfied that the use of the special foodstuffs in the instant case constitutes ``therapeutic treatment'' for the purposes of sec. 159P(4)(d). Quite apart from the ordinary dictionary meaning of that term which, in our opinion, leads to that finding, similar conclusions also seem to emerge from a consideration of the more technical meanings of the words which the medical profession appears to attribute to them. In this respect, it is of interest to observe that in Blakiston's Gould Medical Dictionary (4th ed.) the following explanations are given:

``therapeutic: 1. curative 2. pertaining to therapy or therapeutics.

therapeutics: the branch of medical science dealing with the treatment of disease.

therapy: the means employed in effecting the cure or management of disease or of diseased patients.

---

ATC 636

treatment: 1. application of therapeutic measures, therapy 2. application of a chemical agent or a physical process to a substance or object to render it fit for use or disposal.''

In Butterworth's Medical Dictionary, the following explanations appear:

``therapeutic: concerned with therapeutics; curative.

therapeutics: that branch of medicine which is concerned with the treatment of disease, palliative or curative; in common usage this refers mainly to the use of drugs, physiotherapy, etc. [However, under this heading, explanations are given for many kinds of therapeutics including what is referred to as alimentary therapeutics which is said to be treatment by dietary means.]

therapy: treatment. [A long list of different kinds of treatment is included under this heading; most, if not all of them, refer to the use of drugs, a chemical agent or a physical process and do not include a reference to dietary control.]

treatment: the course of action adopted to deal with illness, and the control of the patient. [A long list of different kinds of treatment is included under this heading including dietetic treatment which is said to be effected by the regulation of the diet.]''

15. Notwithstanding the various shades of meaning which might be attributed to the words ``therapeutic treatment'', and the references to ``alimentary therapeutics'' and ``dietetic treatment'', it seems to us to be an inescapable conclusion that, as used in subsec. 159P(4), the term necessitates the exercise of professional skill in the medical field in some positive way, which, in our opinion, would normally involve the person undertaking the act of administering the treatment, in using chemical agents or drugs or in the use of a physical or mental process of one kind or other, which is directed towards the cure or management of disease or of diseased patients. In the circumstances of the instant case, there is no evidence that action of that kind was taken in relation to the taxpayer or his son or in relation to the products purchased by the taxpayer for use in the gluten-free food consumed by him and his son.

16. No evidence was given by the taxpayer's family physician or by any other person qualified to give an expert opinion in respect of the matters raised. However, from the evidence adduced it emerged that since about 1969 when the coeliac disease was first diagnosed, the taxpayer and his son have abstained from eating food which has been prepared from products containing gluten. If, therefore (contrary to the view which we hold), it might be said that abstinence from particular foodstuffs constitutes a form of treatment which falls within the meaning of the terms ``alimentary'' and ``dietetic'' (referred to earlier), we would be of the opinion that abstinence in itself from particular foodstuffs (which we understand was the only action taken in the relevant period in the management of the disease suffered by the taxpayer and his son), could not, and did not, give rise to the expenses which form the basis of the taxpayer's claim. The evidence does not suggest that the substitute gluten-free food referred to earlier was a requirement in the management of the disease. It does not suggest either, that the substitute food should take the form in which it was in fact consumed.

17. It was stated in evidence that the products purchased were not prescribed. However, even if they were, there would still be difficulties in our opinion, in accepting that a prescription specifying simply that gluten-free products should be used would, without more, cause those products properly to be regarded as part of the relevant treatment which is necessary before sec. 159P(4)(d) might apply. Having regard to the meanings considered earlier, which we consider should be attributed to the words ``administered by direction'', it seems to us that the ``direction of a legally qualified medical practitioner'' required for the operation of the subsection, must extend beyond the limited kind of prescription envisaged to include such matters as the nature (and perhaps, even, the brand name) of the gluten-free products to be used, the quantities and the frequency and manner in which they should be consumed, albeit in the form of prepared foodstuffs. No such evidence was given, and it would appear to be unlikely that any such evidence could be made available.

18. Finally, we would add that, in arriving at our conclusions, we find some consolation in the knowledge that Board of Review No. 3 (as then constituted) in Case No. S8
(1966) 17 T.B.R.D. 31, and Board of Review No. 2 (as then constituted) in Case No. T67
(1968) 18 T.B.R.D. 346,

---

ATC 637

arrived at similar conclusions in relation to the meaning of the term ``therapeutic treatment'' which appeared in substantially the same provisions of former sec. 82F. In the former case, it was held that the prescribing of goat's milk could not be regarded as ``therapeutic treatment''. In the latter case, it was held that expenditure on goat's milk and gluten-free bread did not, for similar reasons, qualify as a deduction. It is noteworthy in the latter case that the medical evidence limited the therapeutic treatment to the elimination of foodstuffs containing the poisoning material (allergen), which in itself did not give rise to the expenses in issue. However, we would also draw attention to what appear to be the differing views of Dr. P. Gerber and Dr. G.W. Beck in Case Q21,
83 ATC 77 that touch upon the meaning of therapeutic, although, in the final analysis, the decision in that case turned upon the question of whether the expenses in issue were incurred in respect of an ``illness'' for the purposes of sec. 159P(4)(a). In that case it was held by majority (Dr. Beck dissenting) that payments to a chemist for a milk substitute for a child who was allergic to natural milk products were rebatable under sec. 159P(4)(a).

19. For the above reasons, we would uphold the Commissioner's decision on the objection and confirm the assessment in issue.

Claim disallowed