Case Q14

Members: MB Hogan Ch
P Gerber M

GW Beck M

Tribunal:
No. 3 Board of Review

Decision date: 11 March 1983.

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Dr. G.W. Beck (Member)

This taxpayer is a research scientist, married, with an infant son born February 1980. She and her husband work full time at a research station in a capital city. In her 1981 return she claimed the full housekeeper rebate of $800 and the Commissioner rejected both the original claim and her objection.

2. From 1 July 1980 until ``just before Christmas'' a housekeeper was employed daily from 8.30 a.m. to 4.30 p.m. From 1 January 1981 until 30 June 1981 a second housekeeper was employed for the same hours each day. The taxpayer could not remember the precise date that the services of the first housekeeper were terminated, but it seems that a housekeeper was employed for at most 51 weeks of the year and perhaps only 50 weeks. The housekeepers cared for the baby, cleaned, did washing and prepared food. It must, I think, be accepted that they were wholly engaged in keeping house as required by sec. 159L(1).

3. The taxpayer's baby was normal and healthy. During the 1981 tax year the taxpayer was away from home ``on 8 work trips involving overnight stays, for a total of 26 working days'' and travelled away from her office on single days for approximately one day each week, or 46 days for the year. At the hearing she said that on some of these single days she would start early and finish well after normal time. She conceded that the eight work trips involving overnight stays would have required something less than 26 nights away from home. When the taxpayer was absent from home during hours that the housekeeper was not in attendance, her husband looked after the baby.

4. The reason for the Commissioner's rejection of the claimed rebate is to be found in sec. 159L(4) which reads as follows:

``(4) Where a taxpayer is married and the housekeeper is not, during the year of income, engaged in caring for the spouse of the taxpayer, being a spouse in receipt of an invalid pension under the Social Services Act 1947-1975 -

• (a) he is not entitled to a rebate under this section in his assessment in respect of income of the year of income unless the Commissioner is of the opinion that, because of special circumstances, it is just to allow a rebate; and
• (b) the rebate (if any) shall be such amount, not exceeding $830 as, in the opinion of the Commissioner, is reasonable in the circumstances.''

The question is therefore whether there are special circumstances and, if there are, are they such as would render it ``just'' to allow some or all of the housekeeper rebate.

5. In relatively recent times there have been two Board cases determined in favour of taxpayers on these very points - Case J70,
77 ATC 579 (on appeal it was the
Coleman case 78 ATC 4355 ) and Case M83,
80 ATC 613 (on appeal the
Moody case 81 ATC 4199 ). Both appeals were unsuccessful on the ground that no question of law was involved. Case M83 was heard by this Board and it has to be observed that the household problems created by a severely retarded teenage boy made the circumstances in that case very different from those that exist in the present case. I considered the circumstances to be special in Case M83 and I believe I would come to the same conclusion now. However, I have always viewed ``special'' when qualifying ``circumstances'' as meaning ``exceptional in character, quality or degree'' ( Shorter Oxford English Dictionary ) and it is difficult to find reasons to water down that definition. Subsequent to those two cases No. 2 Board heard a claim for housekeeper rebate from a full-time research officer and

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ATC 53

university lecturer who supported her student husband and their two children ( Case P106,
82 ATC 563 ). In a joint decision that Board found against the taxpayer and as they have more or less synthesized my view on the meaning of ``special circumstances'' I can do no better than quote from their decision (pp. 565-566):

``7. While the meaning of the words `special circumstances' might be thought to be wide and flexible and not capable of being exhaustively defined, it seems to us that in the context in which they appear in sec. 159L(4), some limitation to their meaning is necessary for the purpose of ensuring that the word `just' appearing after them in the subsection is capable of being given a meaning that falls within the apparent intention of the legislature to provide some limit to its application. It seems to us that, if this were not so, almost any set of circumstances pertaining to a particular taxpayer (whether arising from some initiative taken by him or not) could well be described as special to that taxpayer and a rebate could thus become available to him accordingly. We do not see the subsection as creating a type of `choice' principle that could enable working husbands and wives with children under the age of 16 years to so arrange their affairs that a rebate would automatically be allowable to one or other of them. It seems to us therefore that the word `special' introduces an initial limitation in the sense that the determining circumstances giving rise to the rebate must bear the dictionary meaning of being exceptional in character and, also, that they must arise from external forces (albeit beyond the control of the taxpayer) as distinct from any voluntary acts that might be undertaken by him.''

6. I have concluded that the facts in this case do not create special circumstances when the words are defined in this way and, in consequence, have no option but to confirm the assessment.

Claim disallowed