Commissioner of Taxation v Finn
(1961) 106 CLR 6012 ATD 348
(Judgment by: Kitto J)
Between: Commissioner of Taxation
And: Finn
Judges:
Dixon CJ
Kitto JWindeyer J
Judgment date: 12 October 1961
Judgment by:
Kitto J
I am of the same opinion, and even if the relevance of the expenditure to the respondent's prospects of promotion were to be put on one side I should consider that enough would remain in the facts of the case to entitle him to the deduction he has claimed. His assessable income consisted of or included a salary which was payable from time to time in virtue of his holding the office of a senior design architect in the Public Works Department of Western Australia. It is, I think, a correct application of the terminology of s. 51 to say that he was engaged in "gaining" that salary whenever and so long as he acted in the fulfilment of his office; for the salary payable was his remuneration for everything comprised in or incidental to his service. (at p69)
The respondent incurred the expenditure during a period of leave, and in carrying out activities beyond any which had been or could lawfully have been specifically required of him by the Government. But it was nevertheless in my opinion incidentally to the proper execution of his office and not otherwise that he engaged in those activities. For the office was of a kind which by its nature made incumbent upon the occupant much more than the performance of set duties at set times. Its professional status implied an obligation of progressive acquaintance with a living and developing art. It was therefore, I think, plainly incidental to the office that the respondent should avail himself of such opportunities as might arise to add, in the interests of the State even if also in his own interests, to his knowledge and understanding of architectural achievements and trends overseas, both in design and in construction, and of endeavours made and being made to solve architectural problems such as might from time to time confront his Government. (at p70)
In my judgment the respondent, in making the investigations and studies which he pursued during his period of leave, was acting within the scope of his office, and therefore in the gaining of his salary. I would hold that the expenditure which he incurred in the process was an allowable deduction under s. 51 in the assessment of his income tax. (at p70)