Case P103

Judges:
MB Hogan Ch
P Gerber M
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 29 November 1982.

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M.B. Hogan (Chairman)

I am grateful to Dr. Gerber for his detailed exposition of the facts and his separate consideration of each head of claim advanced. I agree with my colleague in the conclusions he has reached in respect of the general claim and the individual heads of claim.

2. For myself I would add only a general observation arising from what the Board was told in relation to the ex-officio appointment of country magistrates by Executive Council to the position of chairman of the local Hospital Board, and, in those towns where such instrumentalities exist, to the position of chairman of the local board of the Sugar Cane Prices Board. It appears clear to me that the performance of duties of the positions of chairman of boards to which the magistrate may be appointed ex-officio by Executive Council are to be seen as ``part and parcel of the employment'' of the taxpayer, vide Helsham J. (as he then was) in
F.C. of T. v. White 75 ATC 4018 at p. 4022 . Thus expenditure arising from the carrying out of these ex-officio duties, ``the objective necessity'' which arises from ``the nature of the office itself'', would to the extent that the expenditure remains unreimbursed by the board or authority, be an allowable deduction, per Smith J. in
Burton v. F.C. of T. 79 ATC 4318 at p. 4323 . The evidence here, such as it is, indicates only in very round terms that the ``necessity'' for the expenditure arose ``from the personal circumstances or personal preferences of the taxpayer'' and that, as Smith J. pointed out (at p. 4323), ``is not enough''. It appears to me that the necessity for the whole of the expenditures in dispute, insofar as they have been particularised, can be seen to arise either from the personal circumstances of the taxpayer's feeling obliged to maintain a higher than average level of social standing because of his position or, in some minor instances, from the taxpayer's own personal preferences.

3. I would confirm the Commissioner's assessment in this reference.