Case P49

KP Brady Ch

LC Voumard M
JE Stewart M

No. 2 Board of Review

Judgment date: 17 June 1982.

K.P. Brady (Chairman); L.C. Voumard and J.E. Stewart (Members)

The taxpayer in this reference was, from 17th June, 1978 to 3rd November, 1978, employed as a plant operator by the Main Roads Department of a State. His residence was at C, and the bases from which he worked were all some 200 kilometres distant. He worked a five-day week, and it was his custom to spend weekends at home, travelling by motorcycle from the camp in which he happened to be based on Fridays, and returning from his home direct to the base to which he had been assigned in the early hours of Monday morning. In respect of the year ended 30th June, 1979, he incurred, and claimed as a deduction under sec. 51(1) of the Income Tax Assessment Act, travelling expenses of (an estimated) $180 in making these trips over a period of 18 weeks. The Commissioner disallowed the claim on the ground, repeated before us, that the expenditure was not incurred in gaining or producing the taxpayer's assessable income and that, in any event, it was of a private or domestic nature.

2. On one view of it, the taxpayer's claim related to no more than expenses of travelling between his place of abode and his place of work, which claim would be bound to fail, in accordance with the authority of
Lunney and Hayley v. F.C. of T. (1958) 100 C.L.R. 478. But a difficulty arose in relation to an allowance received from the Main Roads Department; was it no more than a ``camping'' allowance (or a living-away-from-home allowance) or was it, in whole or in part, a travelling allowance? The difficulty stemmed from cl. 24 of the relevant award which read:

``24. Camping Allowance.

(1) Workers who are required to camp or to live at the site of any work either by direction of the employer, or because no reasonable transport facilities are available to enable them to proceed to and from their homes each day, shall be paid a camping allowance of $18.20 for every complete week they are available for work. Such weekly allowance is to cover any fares incurred at the weekend by men travelling away from camp to their homes and return but a worker who is absent from duty without the employer's

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approval on the working day immediately prior to or succeeding a weekend shall be paid as provided in the following sentence: If required to be in camp for less than a complete week, they shall be paid $2.00 per day, including any Saturday or Sunday if in camp and available for work on the working days immediately preceding and succeeding such Saturday and Sunday.

(2) Provided, however, when an employer, at his own cost, provides the worker with a proper mess room and cooks the worker's food free of charge, the allowance provided in subclause (1) hereof shall be reduced to $9.10 per week, or $1.30 per day, as the case may be...''

3. In his return of income the taxpayer showed the amount of this allowance ($204) as assessable income and, treating it as a living-away-from-home allowance, deducted from it the amount of $168 in accordance with sec. 51A of the Income Tax Assessment Act. But before us he raised the question whether it should not be treated as a travelling allowance against which, so he submitted, the $180 in issue could be deducted presumably under sec. 51(1). Three things must be said here. In the first place, it would not be permissible to make two deductions from the $204, one under sec. 51A of $168, and a second under sec. 51(1) of $180. This follows from sec. 82(1), which provides:

``Where in respect of any amount, a deduction would but for this section be allowable under more than one provision of this Act, and whether it would be so allowable from the assessable income of the same or different years, the deduction shall be allowable only under that provision which in the opinion of the Commissioner is most appropriate.''

Secondly, although there may be some ambiguity in cl. 24(1) of the award, we think that, at any rate for income tax purposes, the treatment of the $204 as a living-away-from-home allowance so that the taxpayer should be able to gain the benefit of the sec. 51A deduction was not unreasonable. The Commissioner did not dispute this. And finally, whether a travelling allowance is received or not, a taxpayer is not entitled to deduct travelling expenses unless he can demonstrate that the expenses fall within sec. 51(1), being incurred in gaining his assessable income and not being expenses of a private nature. We find that the expenses in issue were not so incurred. In the case cited in para. 2 of these reasons, the High Court held that expenses of travelling between a taxpayer's place of residence and his place of work are not deductible. This decision has been followed and applied in many subsequent cases, and we regard ourselves as bound to follow it once again in this case. The fact that the taxpayer made the trip from home to work and back again but once a week, and that each trip involved a very lengthy journey, does not provide any basis for distinguishing this case from the many others where a similar deduction has been disallowed. Nor does the fact that on one occasion, while travelling to his home, he called in, at the employer's request, at the main base, for on that occasion he travelled by Main Roads bus, and did not ride his motorcycle nor, apparently, incur any expense.

4. The result is that the Commissioner's decision on the objection must be upheld, and the assessment before us confirmed.

Claim disallowed

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