Case B68

Judges: AM Donovan Ch
JD Davies M

GR Thompson M

Court:
No. 2 Board of Review

Judgment date: 7 October 1970.

G. R. Thompson (Member): In his reasons on this reference, my colleague, Mr. Davies, has set out the relevant facts and has discussed the applicability of secs. 51(1) and 73 of the Income Tax Assessment Act in so far as they may be considered to relate to those facts. I am in full agreement with his conclusion that the taxpayer cannot succeed under sec. 73 for the reasons that he has stated. I am also of the opinion that, if the matter falls for consideration under sec. 51(1), on the reasoning set out by my colleague, the taxpayer should succeed to the extent of being allowed a further deduction of $48 in respect of the year of income under review.

2. I share the difficulties experienced by my colleague relative to the terms of the objection lodged by the taxpayer. The objection is a lengthy document in which the grounds upon which the taxpayer relied are set out in a somewhat discursive form and it contains a considerable amount of argumentative material. This type of objection is difficult to construe when one has to consider it in the context of the restrictions imposed by sec. 190 of the Income Tax Assessment Act. The specific paragraphs to which argument was directed do present certain logical difficulties, but I am disposed to take the most generous view of the form of the objection that I can in favour of the taxpayer in coming to my decision, because on the merits, to the extent which I indicate, he should succeed.

3. Considering the objection as a whole and paying particular attention to Ground A, I have come to the decision that the wording -

``The amount of $48.45 disallowed is not an outgoing of a capital private or domestic nature but is a part of a total expense of $90.45 necessarily incurred by me in gaining or producing my assessable income, calculated in accordance with the provisions of, and allowed as a deduction under sec. 73(2) of the Act,''

using as it does verbiage which appears to have been borrowed directly from sec. 51(1), although the section itself is not mentioned, would have been sufficient to have directed the mind of the Commissioner to that section. I am reinforced in this view when I note that in Ground B, which refers to an amount which had ceased to be in contention when the reference came before the Board, but which formed an integral part of the objection when it was first lodged with the Commissioner,


ATC 333

specific reference is made to sec. 51(1) in that particular context.

4. I am fully aware that the view that I have taken is not without difficulties if one construes the grounds strictly paragraph by paragraph, but doing the best I can with what is an ambiguous document, I consider that justice is best served by resolving the ambiguity in favour of the taxpayer. That being so, I have decided that the argument under sec. 51(1) of the Income Tax Assessment Act was open and it follows from what I have said earlier in these reasons that I consider that the taxpayer should succeed to the extent of being allowed a further deduction of $48. I would reduce the assessment before the Board accordingly.

Claims disallowed


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