Case P128

Members: HP Stevens Ch

JR Harrowell M
BR Pape M

Tribunal:
No. 1 Board of Review

Decision date: 17 December 1982.

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J.R. Harrowell (Member)

The taxpayer in his return of income for the year ended 30 June 1981 claimed a rebate in terms of sec. 159J in respect of his mother-in-law who was not residing in Australia.

2. The Commissioner disallowed the rebate in a notice of assessment issued on 7 October 1981. The matter is now before the Board.

3. Up to the date of her death on 12 April 1981 his mother-in-law resided in India. She had never visited Australia. The taxpayer in evidence said that as she had no one to maintain her the task fell to him.

4. Some time in July/August 1979 the taxpayer applied to the Department of Immigration to allow her to immigrate to Australia. Around October 1980 she was required to submit to a medical examination by a doctor in India nominated through the office of the Australian High Commission in Calcutta. After that examination she applied for an Indian passport but she died suddenly before one was issued.

5. Section 159J as it applied in that year required the mother-in-law to be a resident as defined by sec. 6 of the Act.

6. The taxpayer based his case on two points:

• • he had successfully claimed a rebate for his mother-in-law in his 1980 return of income; and
• • the following note appeared on the back of the 1981 return form:

• ``A rebate may be allowable when a dependant is temporarily overseas or in the case of a dependant wife only, is awaiting early migration to Australia.''

7. It was explained to the taxpayer that the reference would be determined by sec. 159J and not by what the Commissioner may have done for the previous year or by the note which the taxpayer had apparently misread.

8. On the facts the taxpayer's mother-in-law was not a resident at any time during the relevant year and so the matter falls outside the terms of sec. 159J.

9. I uphold the decision of the Commissioner on the objection and I would confirm the taxpayer's assessment for the year ended 30 June 1981.

Claim disallowed