Case S82

Judges: HP Stevens Ch

TJ McCarthy M

PM Roach M

Court:
No. 1 Board of Review

Judgment date: 27 September 1985.

T.J. McCarthy (Member)

I gratefully adopt the findings of fact stated in the reasons of my colleague, Mr Roach. The claims in dispute are motor vehicle expenses ($979) and replacement of watch ($130).

2. In relation to travel between the taxpayer's home and the airport, the taxpayer's representative accepted that the relevant question was whether the taxpayer was travelling on her work. Whilst I accept the taxpayer's evidence, I am satisfied that the answer is negative. Her duties did not commence until she reached the airport base. Only then did she take charge of a patient and assess the patient's suitability to be transported in an aircraft. In my opinion, her situation was not analogous to that of the doctor in
Pook v. Owen (1970) A.C. 244 , but instead was similar to the situation of the airline pilot in
Nolder v. Walters (1930) 15 T.C. 380 .

3. In relation to the claim for replacement of a watch, it was conceded by the taxpayer's representative that if the item was depreciable under sec. 54 rather than the subject of an outright deduction under sec. 51, then the taxpayer's grounds of objection did not cover this point. As the expenditure for the watch is expenditure of a capital nature (and indeed the identical watch was worn by the taxpayer at the hearing) it can hardly be doubted that any


ATC 609

deduction is only available under sec. 54. It is therefore unnecessary to determine what apportionment is appropriate for the purposes of sec. 61, although I would have thought that its use for income-producing purposes was not de minimis as the Commissioner's representative argued, but rather of the order of one-third of total use. The taxpayer said that the watch (which had a second hand) was specifically purchased for, and used constantly in, her work, though it was also worn at other times.

4. For these reasons I would uphold the Commissioner's decision on the objection and confirm the taxpayer's assessment.


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