Case P90

KP Brady Ch

LC Voumard M
JE Stewart M

No. 2 Board of Review

Judgment date: 21 October 1982.

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

The taxpayer in this reference is a dancer employed by the X Dance Theatre, a professional dance company. In her return of income for the year ended 30th June, 1979, she claimed the following expenditures as incurred in deriving her salary income:

      Hairdressing and leg waxing        136
      Chiropractor services              156
      Evening dress and shoes for
        official receptions               95
      Car driving lessons                 79
      Car driver's licence                12

The Commissioner allowed 50% only of the hairdressing and leg waxing expenses, and disallowed all other expenditures. The taxpayer objected to that action, and in her notice of objection she varied the amounts of deductions detailed above by claiming $100 only for the hairdressing and leg waxing (of which amount the Commissioner had allowed $68), and $21 only of the total car driving expenses. The Commissioner, however, was not persuaded to allow her objection as varied, and she now brings the matter before us for review.

2. At the hearing, the taxpayer advised her intention not to proceed with her claim for deduction of the car driving outlays. Accordingly, the amounts that were in issue before us comprised:

      Hairdressing and leg waxing
        expenditures                      32
      Cost of chiropractor services      156
      Outlays on evening dress
        and shoes                         95

3. To succeed in her claim, the taxpayer must demonstrate that the above outgoings were incurred in gaining or producing her assessable income and were not of a capital, private or domestic nature. Because at first sight the above items seem to be expenditures which relate to the taxpayer personally, thereby leading to the conclusion that they are also private, and thus precluded from deduction, it is appropriate to examine them in some detail.

4. The expense referred to as hairdressing related to one appointment only for a permanent wave. That was necessary, so the taxpayer contented, for a specific role that she was to portray in a forthcoming production. The taxpayer informed us that the hair style of a dancer is an integral part of the many different roles that she is required to play. In order to more proficiently portray the role designated to her, she considered it necessary to have her normal hair style of long straight hair changed to a base style which would permit of greater flexibility and ease of management.

5. Elaboration on the leg waxing activity can perhaps best be done by quoting from the taxpayer's sworn evidence:

``Q. Why does a female dancer have her legs waxed? - A. As a dancer in (X) Dance Theatre, I am required when performing to present myself for the public's enjoyment and approval. One of the current considerations is that it is customary in this society for women to have hairless legs and underarms, and accordingly, unless required for dramatic effect, we are expected to conform with society's expectations. In addition, for practical reasons of theatre, lighting would catch leg hair, causing limbs to appear larger, negating the message of the movement. With (X) Dance Theatre, we are employed to perform many ballets where the women dance with bare legs; therefore we are required to have hair-free legs for performances throughout the year.''

The taxpayer added that she would not have had her legs waxed were she not appearing professionally on stage.

6. In regard to the chiropractor services, the taxpayer informed us that they embraced preventive and remedial massage from the following practitioners:

                                            Gross     Reimbursement      Net
                                            amount    from Medibank     claim
A, an orthopaedic therapist and chiropractor   $            $              $
   in Melbourne - 7 visits                     74           -             74
B, an osteopath chiropractor in
   Sydney - 2 visits                           30           -             30
C, a chiropractor in Adelaide
   - 16 visits                                132           80            52
                                             ----          ---          ----
                                             $236          $80          $156
                                             ----          ---          ----

The taxpayer contended that she would not have obtained the massage treatment had she not been a professional dancer. Because of the specialised nature of the treatment she received, it is appropriate to provide details from the taxpayer's own evidence:

``A dancer's body is his or her tool of trade. All tools must be maintained in full working order to earn income. For instance, when a tradesman's power tool becomes faulty, the machine is oiled, parts repaired or replaced. So too with the dancer's body, it must be maintained. When a muscle gets over-strained in the pursuit of excellence in rehearsal and performance at the direction of the employer, it has the potential of becoming a bad injury. It must be looked after and mended before it gets to the stage when it tears and renders the body useless... The methods of treatment are remedial massage, a specialist treatment of the soft tissues. There is no resemblance to an ordinary massage... Without this basic maintenance treatment my career as a dancer would be subject to repeated injuries, and the shortening of my career.''

7. Regarding the evening dress and shoes, the taxpayer stated that they were purchased specifically for diplomatic functions and special receptions at which she was required to be present in the course of her duties. She stated that in the previous 18 months she had been on duty at official receptions at Edinburgh, Amsterdam, Rotterdam and Warsaw, apart from receptions in the larger Australian capital cities. In many cases, the overseas functions were held at the request of the Australian Department of Foreign Affairs. She stated that she had worn the dress and shoes on no other occasion than the official functions.

8. In our view, the expenditures outlaid by the taxpayer in changing her hair style to better play a particular role, and in waxing her legs, were incurred in the course of gaining or producing her income (see
Amalgamated Zinc (de Bavay's) Ltd. v. F.C. of T. (1935) 54 C.L.R. 295 at p. 309, also
Ronpibon Tin N.L. and Tongkah Compound N.L. v. F.C. of T. (1949) 78 C.L.R. 47 at p. 57). In the latter case, it was stated by the Full High Court at p. 56 that:

``For expenditure to form an allowable deduction as an outgoing incurred in gaining or producing the assessable income it must be incidental and relevant to that end.''

We regard the taxpayer's vocation as a professional dancer as being the occasion for the expenditures. The essential character of the expenditures was that they were a part of the activity by which she earned her income and were essential to the performance of that activity (see
Garrett v. F.C. of T. 82 ATC 4060 at p. 4065). We see the outlays as being not greatly different in character from expenditure on make-up (which kind of expenditure the Commissioner in fact allowed, and in our view properly allowed). If make-up of the face is deductible, so too as a matter of logic is styling of the hair; to differentiate between the top of the head and the face of the head is to make a distinction without a difference. And if the putting on of a substance, viz. make-up, is deductible, why should not similarly be deductible the removal (by waxing) of a substance, such as hair. We see all of the above expenditures as being incurred by the taxpayer in the process of carrying out her duties as a dancer, which activity gave rise to her assessable income. Accordingly, they are allowable under sec. 51(1).

9. We also consider that the cost of the massage treatment is deductible under sec.

ATC 434

51(1), for its purpose was to improve her capacity to do the work that she was paid to do. In
Magna Alloys & Research Pty. Ltd. v. F.C. of T., 80 ATC 4542, Brennan J. stated at p. 4547:

``Though purpose is not the test of deductibility nor even a conception relevant to a loss involuntarily incurred, in cases where a connection between an outgoing and the taxpayer's undertaking or business is affected by the voluntary act of the taxpayer, the purpose of incurring that expenditure may constitute an element of its essential character, stamping it as expenditure of a business or income-earning kind.''

The application of that dictum to the present situation is given added weight by the fact that the well-being of the taxpayer's body was basic to her activity as a dancer, so basic that we believe that there was an implied condition of her employment that she maintain a very high level of fitness. We observed that the specialist nature of the treatment that she alleged she received was not contested in cross-examination, nor was her statement that she would not have required the treatment had she not been a professional dancer. In our view, to paraphrase what was said by Kitto J. in
F.C. of T. v. Finn (1961) 106 C.L.R. 60 at p. 69, the expenditure was incidental to the proper execution of her duties. We consider that undergoing the massage treatment was a necessary part of her job.

10. In passing, we would make the comment that authority precludes us from accepting her argument that deduction should be allowed because her body was subject to wear and tear. In
Norman v. Golder (Inspector of Taxes) 1945 1 All E.R. 352 at p. 354, Lord Greene M.R. stated:

``I hope I may be forgiven if I say that so far as the wear and tear argument is concerned, it is quite impossible to say that the taxpayer's own body is a thing which is subject to wear and tear, and that the taxpayer is entitled to deduct medical expenses because they relate to wear and tear. It is wear and tear of plant or machinery. Your own body is not plant.''

Over more recent years the Courts have tended to extend the meaning of ``plant'' (see
I.R. Commrs. v. Scottish and Newcastle Breweries Ltd. (1982) 2 All E.R. 230), but the above passage still reflects the law.

11. Different in character, in our opinion, is the expenditure on the evening dress and shoes. In the taxpayer's evidence they were described as: ``A very simple black dress, 1940 style, nice material, very formal; black simple classic shoes.'' Although we accept the taxpayer's evidence that she wore them only at official receptions, the connection between her appearances at those functions and her income is too tenuous to afford deduction under sec. 51(1); we regard the expenditure as being of a private nature, and therefore precluded from deduction.

12. For the above reasons, we direct that the Commissioner's assessment be amended to allow further deductions of $32 and $156.

Claim allowed in part

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