Case B12

Members:
FE Dubout Ch
G Thompson M
N Dempsey M

Tribunal:
No. 3 Board of Review

Decision date: 12 March 1970.

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F. E. Dubout (Chairman), G. Thompson and N. Dempsey (Members): This taxpayer in his return for the year ended 30 June 1968 claimed deductions of $208, $156 and $156 respectively, a total of $520, for the maintenance of three children, and deductions of $78 and $78 respectively for the maintenance of two other children. The claims of $78 for each of two children represents claims for 50% of the full amount normally allowable, whilst the amounts claimed for the other three children are the full deductions normally allowable for dependent children.

2. The three children referred to are children of the taxpayer's first marriage and his wife having divorced him she was by Order of the Court given custody of the children. In the relevant year, in accordance with the Order of the Court, taxpayer contributed to the maintenance of his divorced wife $5 per week and to the maintenance of the children $5 per week each, making a total payment of $20 per week.

3. The remaining children in respect to whom deductions of 50% of the total were claimed are children of taxpayer's present wife. Their father, from whom she is divorced, contributes $8 per week-$4 for each child-for their maintenance.

4. Taxpayer also claimed in his return a total deduction of $293 as education expenses, which sum included an estimated expenditure of $165 for the three children of his first marriage and a further deduction of $339.17 for medical expenses which included $50 estimated expenses on account of these three children.

5. In assessing the return the Commissioner reduced the amount totalling $520 claimed on account of the three children of the first marriage by one-half, and disallowed in full the amounts of $165 estimated education expenses and $50 estimated medical expenses.

6. Taxpayer requested that the matter be reconsidered and after this request the Commissioner amended the assessment and increased the amount allowed on account of the three children from one-half of $520, viz. $260, to five-eighths of $520, viz. $325.

7. On receipt of the amended assessment taxpayer requested reference to the Board.

8. Section 82B is the section which provides allowances for dependants. Section 82B(4) provides that where two or more persons contribute to the maintenance of a dependant the amount to be allowed shall be the amount as in the opinion of the Commissioner is reasonable in the circumstances.

9. Taxpayer is one of at least two, and quite probably three people, who contribute to the maintenance of the three children of his first marriage, who are in the custody of his ex-wife. His contribution is $5 each per week.

10. He has not demonstrated that the allowance of five-eighths of the total amounts allowable is unreasonable and the action of the Commissioner must, therefore, be confirmed.

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ATC 51

11. Allowances for medical expenses are covered by sec. 82F, whilst allowances for education expenses are covered by sec. 82J. Each of these sections require that the taxpayer must personally pay the amounts claimed.

12. Taxpayer cannot show that in fact he did pay any amounts in the relevant year as medical or education expenses for these children. The decision of the Commissioner to disallow the amounts claimed must, therefore, be upheld also.

13. The amended assessment of 28 March 1969 is, accordingly, confirmed.

Claim disallowed