Case U97

BJ McMahon SM

Administrative Appeals Tribunal

Decision date: 10 April 1987.

B.J. McMahon (Senior Member)

The applicant is employed as a fireman by the N.S.W. Board of Fire Commissioners. He is nominally attached to a fire station located in a near northern suburb of Sydney (which I will call "the home station"). However, for some years past he has been classified as a relief fireman. In that capacity he is commonly sent to other fire stations in the Sydney fire district (to which I will refer as "the outer stations"). His classification as relief fireman entitles him to a payment over and above the award rate for a fireman who is attached to one station permanently. His wages are calculated on the basis of the time elapsing between leaving home before commencing work and returning home at the end of a shift. He works two 10-hour days, two 14-hour nights and then has four days off. These constitute an 8-day cycle.

2. There is a minimum manning requirement for each fire station. If a fireman is ill or is taking leave, then the applicant is seconded to take his place at an outer station. Normally he knows in advance which outer station will require his services. He would certainly know the day before. In the many cases where he is relieving a person who is away on leave, he will know for weeks at a time in which outer station he will serve. Occasionally, however, he is sent from his home station to an outer station after the commencement of a shift where an emergency arises. On occasions he may be telephoned at home with instructions to proceed to a particular outer station on the following day. By and large, however, he is aware of his commitments well in advance.

3. He lives in a far northern suburb of Sydney and drives his own car each day to and from the outer station to which he has been allocated for that day, or, in the absence of any such allocation, to and from his home station. He is not paid any travel allowance and is not required as a term of his employment to provide the use of his own car.

4. He claimed a deduction under sec. 51(1) of the Income Tax Assessment Act 1936 ("the Act") in respect of expenses associated with the use of his car on these journeys. His point was that without using his car he could not earn the additional salary he received as a relief fireman. On the hearing of this application, he urged upon me the argument that because he was paid on a home to home time basis, the travel should be looked upon as part of his job and that he should therefore be entitled to the deduction claimed. This application is brought to review the respondent's refusal of his claim.

5. Section 51(1) of the Act is in the following terms:

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"51(1) [Deductions for losses and outgoings] All losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing such income, shall be allowable deductions except to the extent to which they are losses or outgoings of capital, or of a capital, private or domestic nature, or are incurred in relation to the gaining or production of exempt income."

6. In the two fiscal years in question, claims were also made and disallowed in respect of laundry of uniform shirts and laundry of sheets and pillow slips. The latter claim relates to his obligation to launder bed linen on beds supplied by his employer for use during night shifts in certain stipulated circumstances. On the hearing of this application, claims relating to laundry were withdrawn. In view of the decision in Case N16,
81 ATC 86 dealing with almost identical circumstances where a similar claim was disallowed, I consider that the withdrawal of this part of his application was justified.

7. In the return of income for both years, statements were made concerning his travel that were not supported by the evidence that was tendered on the hearing of the application. For example, in the return for the year ended 30 June 1984 a statement is made in the following terms:

"Detailed log books show that the total vehicle mileage for the year was 20,411 kilometres, of which 11,656 kilometres related to travelling to fire stations other than [home station]. The taxpayer drives a 4.2 litre Holden Kingswood and a claim is hereby made for 11,656 kilometres at 27.1c per kilometre."

8. The fact is that the "log book" contains three columns headed "Date", "Station" and "Kilometres Return". In respect of each day's travel, the only details given are the name of the station to which travel was made to and from and the number of kilometres involved in the return journey. Furthermore, the number of kilometres indicated in the third column of the log book do not add up to the number claimed in that particular return. I should say at the outset that, if a proper log book had been kept separating out those journeys made from the applicant's home to his home station on the one hand from any journeys made from the home station to the outer station pursuant to instructions, then the expenses relating to the latter category would undoubtedly have been deductible. They would have been expenses incurred in his work and not travelling to his work.

9. The pattern of his evidence, however, suggested that there were very few such journeys and, in fact, when asked on a number of occasions he conceded that the claim related solely to return journeys made between his home and the station to which he was allocated on the particular day. No separate claim is made in respect of inter-station journeys.

10. The starting point in considering the applicant's entitlement must be
Lunney v. F.C. of T. (1957-1958) 100 C.L.R. 478 at pp. 498-499 where three Justices of the High Court in a joint judgment said:

"It is, of course, beyond question that unless an employee attends at his place of employment he will not derive assessable income and, in one sense, he makes the journey to his place of employment in order that he may earn his income. But to say that expenditure on fares is a prerequisite to the earning of a taxpayer's income is not to say that such expenditure is incurred in or in the course of gaining or producing his income. Whether or not it should be so characterised depends upon considerations which are concerned more with the essential character of the expenditure itself than with the fact that unless it is incurred, an employee or a person pursuing a professional practice will not even begin to engage in those activities from which their respective incomes are derived."

11. Thus, travel expenses between home and place of work by and large are not deductible. They can be distinguished from expenses of travelling from one place of work to another. Unlike the airline pilot in Case L49,
79 ATC 339, the applicant in the present case does not claim that his home constituted one of his two places of work so that his duties began when he left home to travel to the terminal or airport (in that case) and ceased when he returned home.

12. The principal exception to the general rule appears to have originated in
Taylor v. Provan (1975) A.C. 194, where the concept of

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the itinerant traveller was outlined. At p. 215 Lord Wilberforce said:

"To do any job, it is necessary to get there; but it is settled law that expenses of travelling to work cannot be deducted against the emoluments of the employment. It is only if the job requires a man to travel that his expenses of that travel can be deducted, i.e. if he is travelling on his work, as distinct from travelling to his work. The most obvious category of jobs of this kind is that of itinerant jobs, such as a commercial traveller. It is as a variant upon this that the concept of two places of work has been introduced: if a man has to travel from one place of work to another place of work, he may deduct the travelling expenses of this travel, because he is travelling on his work, but not those of travelling from either place of work to his home or vice versa. But for this doctrine to apply, he must be required by the nature of the job itself to do the work of the job in two places; the mere fact that he may choose to do part of it in a place separate from that where the job is objectively located is not enough."

13. The concept of the itinerant traveller has been applied in a number of cases since, but in all of them characteristic features of the taxpayers' employment appear which are not to be found in the present application.

14. In Case U17,
87 ATC 175, claims for travelling expenses by a nursing sister were allowed. In her case, however, she performed casual work through an agency. The particular circumstances relating to her employment were examined and highlighted in the decision. The Tribunal there came to the view (para. 24) that her employment by a variety of hospitals as a specialist intensive care nurse was "very special employment" as that term was understood in Taylor v. Provan (supra). Her employment was held to be of itself inherently an itinerant one. She was employed by various employing hospitals and the Tribunal found as a fact (para. 17) that when she set out from her home to travel to a hospital and return she was travelling on her duties as an employee of the particular hospital that had contracted to employ her on that day.

15. The present applicant was employed by the same employer in the same class of employment for every day for which a claim has been made. The only distinguishing feature of his claim is that he travelled to one outer station regularly for a number of days then another outer station for another period and so on. An analysis of the "log book" tendered in evidence shows that of the 174 working days comprised in one of the fiscal years, 96, or more than half, were spent on duty at 4 outer stations, all located on Sydney's North Shore. A further 18 days were served at the home station, which is also in that general area. It does not seem to me that this renders his employment of itself inherently an itinerant one, nor does it categorise his employment as "very special".

16. In
F.C. of T. v. Wiener 78 ATC 4006 the Supreme Court of Western Australia came to the conclusion that travel carried out by a school teacher in the circumstances described in the decision, was inherent in her employment. There was no dispute that travelling expenses between the schools that she was called upon to supervise constituted a deductible expense. The Court, however, allowed as a deduction the expenses of travelling between her home and the first school of the day and return in the particular circumstances of that case. It is to be noted that she was paid an allowance for travelling. From this (inter alia), the Court was prepared to infer that travelling was a necessary element of her employment. At p. 4010 the Court said:

"The nature of the job itself made travel in the performance of its duties essential, and it was a necessary element of the employment that on those working days transport be available at whichever school the taxpayer commenced her teaching duties and that transport remained at her disposal throughout each of those days."

17. In the great majority of working days for which claims were made in Wiener, the taxpayer was obliged to attend various schools teaching her specialist subject of foreign languages through audio-visual equipment (which incidentally had to be transported in her car). A reading of the decision indicates that this was regarded by the Court as an essential feature of her employment. Had she not been required to attend at more than one school on any one day, it would seem that the Court may well have taken a different view of the expenses claimed. The position of the taxpayer in that situation where "the office or

ATC 588

employment is of itself inherently an itinerant one and that the taxpayer may be said to be travelling in the performance of her duties from the moment of leaving home to the moment of return there" may be contrasted with the position of the applicant in the present case. Once having arrived at his outer station, he remained there until the end of his shift before returning home. There was no requirement to transport bulky equipment to the outer station. There was no evidence that his duties required him to use his car from an outer station as a base during the course of his shift. The nature of his employment while there certainly could not be said to be itinerant. By extension, his travel to a home or an outer station can therefore not be said to be part of itinerant employment.

18. The applicant's position should also be distinguished from the facts that were examined in two recent decisions of this Tribunal. In Case T106,
86 ATC 1192 a physically handicapped person, who had succeeded in obtaining employment as an offsider in the building industry, was allowed deductions for travelling expenses in moving around work sites. The Tribunal found that the facts of that particular case established the character of the applicant's employment as that of an itinerant worker. However, in the course of doing so, several observations were made to illustrate the web of workplaces that one would expect to find, particularly in a casual rather than a semi-permanent pattern, in order to categorise employment as itinerant.

19. At para. 7 the Tribunal said:

"It has long been recognised that it is sometimes appropriate to categorise an occupation as `itinerant'. Sometimes, as with a hawker, the taxpayer may carry on business. In other cases, such as that of a shearer, he may be retained by a series of different engagements for his personal services. In my view it is not of the essence as to whether the shearer is to be classified as being an employee in a master-servant relationship or as an independent contractor or whether he is to be considered as carrying on business from his home. Then, as here, there is the case of a person who pursuant to a single, ongoing engagement as an employee is required to attend at various sites in different localities nominated from time to time by the employer. Such a person might be a school teacher who follows a regular pattern over a school year of attending two different local schools on set days according to a predetermined program or the teacher may be one with supervisory responsibilities over a wide geographical area and who travels from day to day and from school to school as the need arises. In each case the question to be determined is how the travelling between place of residence and place of duty is to be characterised and that is the question to be resolved in relation to the present applicant."

20. Shortly afterwards in applying these tests, the Tribunal, constituted by the same Senior Member, considered the case of a carpenter in Case U29,
87 ATC 229. In that case the applicant's claim for deduction of travel expenses was disallowed on this basis. After reviewing the facts and the principles, the Tribunal said at p. 233:

"It was argued for this applicant that he too should be categorised as an itinerant worker even though for periods of several months in succession he had as a matter of routine but one place of employment for four days of the week and a second place of employment on a fifth day; and that at intervals of several months, there would be a change in the principal place of duty. Without more I am not satisfied that the applicant should be categorised as an itinerant worker or that the Act authorises the deductions claimed, whether incurred as `additional expenditure' or otherwise."

21. In my view, the circumstances of the present applicant are such that his settled pattern of employment cannot be regarded as itinerant, even though he is not required to serve at the same station for every day during the course of the fiscal year. There are not the peripatetic elements inherent in his employment that one must expect to find. There is not the web of workplaces that one looks for as a structure for the applicant's working life if that life is to be regarded as itinerant. There is not the constant unsettled dispatch from one workplace to another, the element of uncertainty, the official recognition by the employer through allowances of the essential nature of the travel, or even the requirement to carry tools of trade, all of which have played some part in assisting one to recognise

ATC 589

categories of itinerant workers when they arise. The present applicant is really essentially in the same position as the ship's joiner in Lunney (supra), who on each work day travelled from his suburban home to his employer's office at Darling Harbour Sydney, where he was required to report at the commencement and completion of each day's work, after having been allocated to work elsewhere in the port of Sydney. The applicant's travel expenses are not relevant to the gaining of assessable income as that term has come to be understood.

22. Accordingly the decision under review is affirmed.

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