Case U112

Members:
PM Roach SM

Tribunal:
Administrative Appeals Tribunal

Decision date: 14 May 1987.

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P.M. Roach (Senior Member)

In this reference the applicant claims a deduction for motor vehicle expenses incurred during the year of income ended 30 June 1984. The amount claimed is $585 and the quantum of the claim is not in dispute. The Commissioner disallowed the claim on the basis that the expenses, which were incurred in travelling between her place of residence and the schools at which she was from time to time employed, are not allowable as deductions pursuant to sec. 51(1) of the Income Tax Assessment Act ("the Act").

2. The applicant is a wife and mother who, as a science graduate and certificated teacher, was employed, prior to the birth of her first child, as a full-time, secondary school teacher in the service of the Education Department of her State. She resumed employment as a teacher, but as a casual teacher, from April 1983 and followed that occupation as opportunity permitted until March 1987, when she again took up a full-time appointment. As a casual teacher she rendered service only to the State Education Department. When she first sought employment as a casual teacher she was interviewed by a senior officer of the State Education Department and she was accredited as a person eligible for appointment to casual vacancies, but only after satisfying the person interviewing her that she would be able to accept and, more importantly, take up casual appointments on short notice. She achieved that (inter alia) by advising that she would be able to provide her own transport. Once accredited in that way she canvassed local high schools offering her services and, when responses were not as forthcoming as she had hoped, she again pressed her cause. In due course she came to be offered appointments and accepted them.

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ATC 673

3. To ensure that invitations would continue to be extended to her it was her practice on each school day to remain at home from 8.00 a.m. to 8.45 a.m., and only then take her son to school. She would only depart earlier if an appointment was offered for the day and she accepted it. Her evidence was that when she accepted appointments likely to extend for any substantial period she gave notice to other schools that, for the time being, she would be unavailable. At times, particularly in mid-winter, more than one school would contact her on the one day. (There was no suggestion in the evidence that she was ever contacted before the first day of any appointment, even when the absence of the teacher she was to replace was programmed.) She was at all times conscious that unavailability on her part would act as a deterrent to those who might employ her, just as unreliability in attendance by reason of lateness or inefficiency in performance about her duties would also act as a deterrent. When she accepted a position, it was most important that she should be able to present herself for duty very quickly and, if possible, before classes commenced. That usually allowed no more than 30-40 minutes.

4. In these endeavours she was substantially successful. In the year of income ended 30 June 1984 she was employed as a casual teacher on 113 days out of a possible 207 or so days. Most appointments were for only one or two days. Four appointments were for four or five days; four were for nine or 10 days; and one was for 14 days. The last mentioned appointment departed from the pattern of earlier appointments in that when the appointment was accepted the applicant undertook to teach until the end of the second term (September 1984) and, as events transpired, she continued in that appointment until the end of the schools year. In all, she taught at six secondary schools - all being within about six kilometres of her home, measured "as the crow flies". However, time and topography worked against her. Two schools were within about 10 minutes' travelling time by private transport, but it would have taken approximately 45 minutes to travel there either by public transport or by walking. The others were accessible by private transport in under 30 minutes, but by public transport would have taken anything from 30 minutes to 1½ hours.

5. As a responsible teacher she took the view that it was her duty to contribute to the education of the children entrusted to her care and not merely to keep order and to maintain discipline in the fashion of a highly qualified babysitter. Her principal area of teaching responsibility was mathematics and her responsibilities in the several schools ranged over classes from year seven to Higher School Certificate; and across all streams in the lower years and at all subject levels at HSC. She also taught in the area of the sciences, but did not carry out laboratory or equivalent practical work. When called on, although she knew in broad terms the fields in which she would be expected to assume responsibility, she did not have any particular knowledge of the classes to be assigned to her. That information would come on her arrival at the school. That limitation diminished in significance as any particular appointment extended. However, it was common to all of her appointments that she should be able to present herself as soon as possible and, if at all possible, in time to assume responsibility for the first class of the day. Commencement times and concluding times varied from school to school.

6. To enable her to discharge those responsibilities, at all times she carried in the boot of her car an "archive box" containing material she had collated over the years and which she had found to be suitable as teaching material. She drew on these materials to assist her in classroom duties as occasion required. It was not suggested that she drew on all the materials on any day, or even that she drew on some of the materials every day. Her own estimate was that she would have taken materials from the box into the school on perhaps only one day in two or even three. She also carried a lightweight projector which she used as occasion required rather than lose time in endeavouring to ascertain where such facilities could be obtained within the school and then hope that it would be possible for them to be made available to her at short notice. Her teaching techniques varied according to the nature of the classes she was appointed to teach. If she was relieving for a teacher who had gone off to attend an "in-service" training course, it was likely that she would follow the class program he had prepared to be taught in his absence; if she was dealing with a Higher School Certificate class,

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ATC 674

she would probably use her resources of previous examination questions and model answers; if she was dealing with a lower stream year seven or eight class, where the interest span of students was quite limited, she might use the projector as an aid to the presentation of simple mathematical concepts and models in the hope that she might stimulate their interest by an entertaining presentation. In addition to teaching the core of any syllabus she sought to achieve what was referred to as "extension" and "enrichment" of her students. At each school she was always entitled to use the staffroom desk of the teacher whom she was replacing and she was entitled generally to have the use of school-provided facilities but she found, particularly within the time constraints within which she was working, that it was difficult to organise matters on that basis. A further constraint was her need to return to her home and her children as soon as possible after the conclusion of the teaching day.

7. It is common ground that the applicant needs to establish that her travelling expenses were incurred in circumstances which take her outside the scope of the decision in
Lunney v. F.C. of T. and Hayley v. F.C. of T. (1957-1958) 100 C.L.R. 478 - a decision in which a Full Bench of the High Court of Australia held that ordinarily the cost of travel between one's home and place of work or employment is not deductible.

8. Recognition of what was not said in that decision, as well as consideration of what was said, indicates some of the difficulties arising upon this reference. McTiernan J. dissented and Dixon C.J., in giving his support to the decision, said (at p. 486):

"To escape from the course of reasoning on which the decisions proceed requires the taking of refined and rather insubstantial distinctions. I confess for myself, however, that if the matter was to be worked out all over again on bare reason, I should have misgivings about the conclusion. But this is just what I think the Court ought not to do. It is a question of how an undisputed principle applies. Its application was settled by old authority long accepted and always acted upon. If the whole subject is to be ripped up now it is for the legislature and not the Court to do it."

As the legislature has not so responded, it is the responsibility of the Courts and this Tribunal to do the best they can in applying that "undisputed principle" in a vast range of circumstances, all too often relying on "refined and rather insubstantial distinctions".

To recognise the decision of the Full Bench for what it is, it is necessary to consider the circumstances of the two appellants. Lunney was employed as a ship's joiner. He resided in a residential suburb near Dee Why and travelled on each work day by bus from that suburb to his place of work at Darling Harbour in Sydney. He returned by the same route. He travelled by "omnibus" over so much of the route as was serviced by public transport and for the rest travelled on foot. Having arrived at the place appointed for the commencement of his work duties, he thereafter travelled as directed by his employer about the Port of Sydney. The latter expenses, which were expenses of his employer, were not in dispute. In Hayley's case, the appellant was a self-employed dentist who carried on business on his own account in professional rooms in the heart of the city of Sydney. He resided in Strathfield: "... an almost entirely residential suburb of Sydney, and a large proportion of the working population living there travels to and from the city daily for the purpose of getting from their respective residences to the place of their employment and returning therefrom to their respective residences". He travelled daily by electric train, covering the distance between his residence and one station and his rooms and the other on foot. From that summary it is to be noted that in each case they travelled between two permanently fixed points; they travelled according to a predetermined and regular program in order to undertake long arranged, ongoing income-earning activities. They travelled by well established commuter paths and in doing so travelled by routes commonly travelled by large numbers of other workers. They travelled at or about peak commuting times when public transport was available for their use.

9. Neither case addressed the problems of persons who incur expenses in travelling to and from their homes:

• (a) in searching out employment opportunities while unemployed;
• (b) in seeking out new employment opportunities;
• (c) in establishing a business;

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  ATC 675

• (d) in areas not serviced by public transport;
• (e) at times when public transport is not available;
• (f) with substantial equipment, necessarily carried in order to discharge the duties of the income-earning activities;
• (g) when income-earning activities are concurrently being carried out at two or more places;
• (h) when one or more of those places lies in a position more remote from the residence than the other or others;
• (i) when the residence lies at some point between two or more places of concurrent engagement;
• (j) when, in travelling between two or more such places, the traveller actually passes, or briefly visits, or stays overnight at, his residence in the course of moving from one place of engagement to the other;
• (k) on special "call-out" after the journeys of the ordinary course of the day are complete;
• (l) during a period in which the employee is being remunerated for time so spent;
• (m) when the employer ultimately bears the expense on an allowance or indemnification basis; or
• (n) providing transport for others as a matter of obligation while effecting his own travel.

10. I mention those examples, some of which have been considered in deciding cases, in order to illustrate the diversity of circumstances giving rise to claims such as the present, and the difficulty of deciding them all consistently. I think it too much to hope that all decisions in this area have been and will be delivered so as to be capable of being explained and distinguished on grounds which would always be found convincing. I think that one must be content with a more limited objective than that, and recognise that the aim in each case is to try to decide it consistently with principle, and to hope that inconsistencies are rare. Often such decisions call for an exercise of judgment in which the determination involves questions "of fact and degree". Further, in making such judgments, one should avoid a mechanistic approach of simply asking whether the journey commenced at a place of residence or concluded at a place of residence.

11. The difficulty is illustrated in comparing the decisions in Case R8,
84 ATC 157 and Case U17,
87 ATC 175: cases involving nurses employed in several hospitals on a casual basis. The results for the two applicants differed and, in deciding this case, for the reasons I have indicated, I think it is unnecessary to say which decision is correct or, indeed, that either is wrong. The difference in result merely illustrates the difficulties which arise in applying principles.

12. The applicant could succeed if she could establish that she was an "itinerant worker", similar to the teacher in
F.C. of T. v. Wiener 78 ATC 4006; or the labourer in Case T106,
86 ATC 1192. In my view she is not able to do so. The teacher in Wiener's case had a single ongoing employment which obliged her to teach at five different schools in the course of the school day on four days of the week and on the fifth to carry out incidental work which she did from her home. In contrast the applicant was in a situation whereby from time to time she was offered employment opportunities and it was her practice to accept the first opportunity offered, even though she had no obligation to accept any of them. When each particular appointment was accepted she was only required to attend at one place of work for the duration of that engagement. Furthermore, on the second and subsequent days of any appointment, her position was indistinguishable (so far as is relevant) from that of any teacher on the permanent staff of that school. When that engagement was complete she was without further obligation and remained unemployed until offered a further appointment. Such an appointment might have been taken up the following day, and it might have been at the same school, but it would constitute a new invitation which she was free to accept or reject, just as she would have been free to reject offers which might have been extended to her in more remote places. Those factors also distinguish her from the circumstances of the labourer. His employment was also continuing and by its terms he was obliged to attend at a nominated place of work on each working day, but in circumstances whereby the place at which he was required to attend would vary frequently and even from day to day and in the course of the day. I am not persuaded that the applicant is to be considered as an "itinerant worker".

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ATC 676

13. It was also suggested that, in the circumstances detailed above, the home of the applicant was her "base of operations", so that all her travelling between that "base" and the schools was travelling "in the course of" earning her income. The shearer's case, Case S29,
85 ATC 276 was referred to. But the analogy is deficient. The applicant was not a self-employed independent contractor, but a person seeking employment. She was not a person whose terms of engagement obliged her to provide at her own expense the equipment essential to the performance of her task.

14. Further, unlike the air ambulance nurse in Case S82,
85 ATC 608, she was not even obliged to hold herself available to be called out, nor was she entitled to be remunerated while so standing by "on call". Nor was she "on call" 24 hours of the day and at weekends to provide advice on request and, if appropriate, to travel from her home or wherever she might be to attend to the resolution of the problem (cf. the computer consultant in
F.C. of T. v. Collings 76 ATC 4254).

15. Alternatively, the applicant contends that she stands in a similar position to the musician in
F.C. of T. v. Vogt 75 ATC 4073; or the carpenter in Case U29,
87 ATC 229. She claims that her income-earning activities were such that she had to transport equipment and materials of such nature and magnitude and in such circumstances that the travelling expenses should be recognised as costs of transporting that equipment, with the travelling of the taxpayer being only incidental to that end. I am not satisfied that that was so. She is rather to be characterised as a teacher who, for personal reasons, preferred to carry out her work of preparation and marking of assignments from her home rather than from the facilities provided by the school for her convenience.

16. What specially distinguishes the circumstances of the applicant is the fact that, in order to secure the positions which generated the income, it was essential that she be able to respond to the initial call very promptly and to present for duty swiftly, a consideration also operative in the cases of the two nurses (ante). I am quite satisfied that, having regard to the relative locations of her home and the several schools, she could not have succeeded in that unless she had travelled by car. But that circumstance does not alter the nature of the travel. Some persons as a matter of practical necessity have to travel in the ordinary course of their day between their home and place of employment or business by private motor vehicle. That may be because of their physical disabilities (cf. Case R72 (Public Hearing:
Hume v. F.C. of T.) 84 ATC 506: a paraplegic teacher); or because they reside in places where no public transport is available (cf. Case U29 - ante); or because their hours of duty are such that no public transport is available at the times at which they must travel. Nor, in my view, does the need for promptness in attendance significantly alter that for the applicant. The principal significance of time considerations was only to delimit the geographical area within which in her circumstances employment opportunities might reasonably be available and be availed of.

17. I would uphold the determination of the Commissioner upon the objection.