Case F25

Judges:
JL Burke Ch
RE O'Neill M
CF Fairleigh QC

Court:
No. 1 Board of Review

Judgment date: 4 June 1974.

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J.L. Burke (Chairman); R.E. O'Neill and C.F. Fairleigh, Q.C. (Members): The Commissioner has disallowed the claim by the taxpayer for a deduction of $50 under sec. 82F(3)(f) of the Income Tax Assessment Act 1936-1972 for ``the maintenance and purchase of a wig''. It appears that the wig was purchased by the taxpayer during the financial year 1970-1971 at a cost of $200, and the present claim during the year 1971-1972 relates to maintenance or repair of the wig.

2. In a letter attached to her income tax return the taxpayer said that it was necessary for her to wear a wig because of a birthmark. Upon receiving the assessment the taxpayer objected to the disallowance of that deduction and stated that since 1959 similar payments have been allowed as a deduction upon proof in the form of a doctor's certificate; and that the reason for wearing the wig ``is a medical condition of the scalp which will not allow the growth of natural hair on a large area of my scalp, (so that) it is just as necessary for me to wear a wig as it is for other unfortunate people to wear a surgical appliance, as I would not be able to go out and earn my living without wearing it''. Subsequent to the adverse decision on her objection the taxpayer again wrote to the Commissioner and stated that the wig was especially made for her use, and also forwarded to the Commissioner a letter from a general medical practitioner certifying that the taxpayer wears a wig for medical and not cosmetic reasons due to extensive birth disfigurement; she had undergone plastic surgery and as age progresses wigs will be required by her more frequently.

3. In the course of her evidence the taxpayer produced a letter from a medical practitioner who is a Fellow of the Royal College of Surgeons (Eng.) and a Fellow of the Royal Australian College of Surgeons and one paragraph of that letter is as follows -

``I consider that not only is your hair piece necessary as far as cosmetic considerations but due to the fact that you have this flap repair with a skull defect underneath, that it adds considerable protection in the event of any blow to your head which due to the defect in your skull could cause brain damage.''

The letter continues -

``It is my firm opinion that this is an essential surgical appliance as regards protection of your defective skull.''

4. The relevant medical history of the taxpayer as she related it in evidence is summarised thus: She has a birthmark on her head (literally since birth) with no hair from the crown of her head down, as she expressed it. Until she was 14 years of age she always wore a woollen cap when she was outside her home and kept it on whilst in a school classroom. At about the age of 14 years her parents first arranged to have a wig made for her and since then she has always worn a wig. Her appearance suggests that she may now be called middle aged. The birthmark was ``an ulcerated weeping thing'' and for years the general medical practitioner attended to the suppuration from the birthmark and prescribed antibiotic ointment and tablets. Approximately four years ago he referred her to the surgeon for plastic surgery and this was carried out and the open wound effect was cleared up, but of course the condition of baldness remained, and hair will never grow on the front or back of her head.

5. The taxpayer's evidence is that she could not go out and earn her living without wearing the wig as the nervous tension would cause her to be a nervous wreck - she assented to the suggestion that her appearance in public without a wig would subject her to a psychological reaction. Both the general practitioner and the surgeon had told her over a period of years of the need to wear a wig because of her nervous reaction and for her general welfare.

6. The wig is especially designed and made for the taxpayer. It is of human hair with elastic pieces on springs radiating out from around the crown of the wig. The ordinary type of wig available in stores would be unsuitable for the taxpayer.

7. The representative of the Commissioner, quite properly, has withdrawn a prepared submission that the wig was not prescribed by a legally qualified

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ATC 132

medical practitioner. For his general proposition that the deduction is not allowable he relied on a series of earlier decisions of the Boards of Review in what may be called the ``wig'' cases. The essence of the Commissioner's submission is that in the light of the principles emerging from those earlier decisions, even if it is accepted that the wigs had been prescribed by a legally qualified medical practitioner, they still do not constitute medical or surgical appliances as contemplated by the section.

8. So far as earlier decisions of Boards of Review are concerned, it is sufficient to say that there is no reported case in which the evidence is anything like as overwhelming as it is in the instant case. This is so even apart from the statement of the surgeon that the wig is an ``essential surgical appliance''. In the absence of evidence of contrary intention, that is understood to be his professional opinion from a medical viewpoint, and not an attempt by him to indicate the scope of the phrase in sec. 82F(3)(f).

9. The evidence in this case establishes to the hilt that the taxpayer is entitled to the deduction. The phrase in the subsection ``payments in respect of'' is wide enough to cover maintenance or repair as well as original cost, and indeed the Commissioner has not suggested the contrary.

10. The deduction is allowed and the assessment is to be amended accordingly.

Claim allowed