Case T103

P Gerber SM

Administrative Appeals Tribunal

Decision date: 20 November 1986.

Dr P. Gerber (Senior Member)

In this case the claim involves outgoings on shirts, shorts, socks, boots, and overalls, all worn by the applicant solely in and exclusively for purposes of his work. He puts these garments on in the morning. He goes to work and comes home in them and changes in the laundry, whereupon these garments are washed.

2. I indicated very early on that it was quite clear that the boots, which were shown in evidence, and the overalls which were likewise shown, were clearly protective clothing of the kind specifically allowable as a deduction pursuant to sec. 51.

3. On the other hand, a number of pairs of socks were bought in each year now under review, which were acquired at Woolworths, were ordinary woollen socks, and which I indicated would not be allowable merely because they were worn at work or were used in abnormal quantities. They were simply ordinary socks, and as such, as the law has developed, not allowable as a deduction.

4. The Commissioner's representative readily conceded that the boots and overalls should have been allowed, and have now been allowed, and are therefore not an issue which I need to consider.

5. That leaves me in each of the years now before me with a claim for shirts and shorts. I find this particular claim singularly distasteful because it must lead inevitably to a result which I find quite inequitable. Having seen the garments and having heard the applicant depose as to where he bought them, that is, from a menswear shop on the Gold Coast - occasionally they are also stocked at Myers - and notwithstanding that they are made by King Gee, on the whole of the evidence I am not satisfied that these garments have a sufficiently distinctive characteristic to take them out of the character of ``conventional clothing''. As the applicant put it, the man on the corner or standing next to the applicant when he buys these garments and wondering what these garments would be used for, would not be able to deduce that they have a distinctive industrial characteristic.

6. A number of cases have been cited in argument, and in particular Case A45 [
69 ATC 270]

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decided by Board of Review No. 3 in 1969, which in many ways is indistinguishable from the facts now before me. The taxpayer in that case worked in a blast furnace and claimed a deduction, as in this case, for the cost of the various garments which were worn to protect him from the intense heat of the furnace and flying sparks of metal. Being made of wool, and therefore fire resistant, the garments in issue were army surplus jackets, army surplus trousers and four shirts. They were no longer suitable for ordinary use since, being scorched and singed, they exuded an unpleasant odour. The taxpayer's employer expected its blast furnace employees to provide their own woollen clothing and to replace them where necessary.

7. The Chairman of the Board, Mr Eric Dubout, in finding for the taxpayer, had this to say [at p. 270]:

``Clothes worn merely to ameliorate discomfort are not deductible items, but where protective clothing is required to avert or minimise a high level of danger, such as arises in the particular process in which taxpayer was involved, not being a mere statistical risk of injury that may be run by employees in general, then those clothes must be regarded as necessary to his occupation. Though the clothes were not peculiar to taxpayer's occupation and did not constitute a recognised uniform, they were suitable for use only as his work clothes and expenditure on them could not be regarded as private.''

8. The other members, Mr Thompson and Mr Dempsey, both concluded that the clothes were ``necessary and peculiar'' to the taxpayer's occupation, and hence the expenditure on them an allowable outgoing under sec. 51, not being of a private nature.

9. In an earlier case, Case P62
(1963) 14 T.B.R.D. 278, a police detective was granted the cost of replacing ordinary clothes worn out in the course of his duties, on the basis that the duties themselves demanded excessive wear.

10. Regrettably, I must conclude that these earlier decisions, which applied what has become known as the ``necessary and peculiar'' test, no longer represent good law. Indeed, I doubt whether they were ever good law. They were attempts by Boards of Review to ameliorate the harshness which results from a strict application of sec. 51 to employees.

11. If the taxpayer were a doctor who wore white coats, or a boilermaker in a boilersuit, he would have no problems whatever in persuading a tribunal that these were sufficiently ``peculiar'' to take them out of the normal character of conventional clothing. However, this is not the case here. The case that is put to me by the Commissioner is that these clothes, admittedly only worn at the applicant's workplace, and by virtue of substantial damage wholly unusable for any other purpose, are none the less, when all is said and done, ordinary conventional clothes which have no peculiar characteristics as protective clothing. The arguments advanced on behalf of the applicant that if he did not wear such clothes, he would suffer damage to his skin, whilst absolutely correct, does not suffice to convert, what I am compelled to conclude are simply shorts and shirts, into protective clothing. It is with considerable regret that I reach this result and it is one that affords me little satisfaction, because it is clearly an inequity. However, it is one I am nevertheless compelled to reach by virtue of the interpretation which sec. 51 has been given by the courts.

12. Most recently, an English case went all the way to the House of Lords:
Mallalieu v. Drummond (1983) 1 All E.R. 801, in which a lady barrister bought black conventional clothing for court appearances. Her argument was that her own reference was for bright, coloured garments, and that she would not normally wear black; that the only reason she wore black was because it was a convention of the courts; a convention, if you like, which ``compels'' barristers who appear before them to be dressed in black clothing. The argument that she only bought black clothing for purposes of her work was dismissed for reasons very similar to the ones I am compelled to apply here.

13. I had occasion some years ago to consider a case in the Northern Territory where a nursing sister claimed the cost of lisle stockings. Lisle stockings would not be worn by anyone in her right mind in the Northern Territory. They are uncomfortable, they are hot and they serve no useful purpose. The only reason this nurse wore them was because of hospital requirements. However, there was

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nothing ``peculiar'' about the stockings. They were ordinary lisle stockings. Nevertheless, it was held that, as such they were not allowable deductions under sec. 51 (Case N97,
81 ATC 521).

14. I am not able to disregard the way the law has developed and apply a test which has by now become recognised as no longer reflecting the correct interpretation of sec. 51. Nevertheless, this is clearly a case in which good sense on both sides should have prevailed on both sides long before the matter came on for hearing. Be that as it may, the matter now having come in its present form before me, I must apply the law as I see it, and once I reach the conclusion that there is nothing which distinguishes these shirts and shorts as in any real sense ``industrial'' wear, I have no alternative but to dismiss that component of the application which deals with the shirts and the shorts.

15. The only issue remaining now is what kind of order I need to make. The boots and overalls have been allowed. I suppose the proper order in these circumstances is that the application is allowed in part.

16. In each of the years now before me, that is 1982, 1983 and 1984, the application will be allowed in part.

Claim allowed in part

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