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Edited version of private advice
Authorisation Number: 1052395100997
Date of advice: 31 October 2025
Ruling
Subject: Interdependency and financial dependency
Question
Is XXX (the Beneficiary) a death benefits dependant of XXX (the Deceased) according to section 302-195 of the Income Tax Assessment Act 1997 (ITAA 1997)?
Answer
No
This ruling applies for the following:
30 June 20XX
The scheme commence on:
The scheme commences on XX
Relevant facts and circumstances
This private ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are different from these facts, this private ruling has no effect, and you cannot rely on it. The fact sheet has more information about relying on your private ruling.
1. The Beneficiary is the adult child of the deceased person.
2. The Deceased died on DDMM 20XX at XXX
3. The Beneficiary was born on DDMM XX and was therefore older than 18 years when the Deceased died.
4. The Beneficiary lived with the Deceased from June 20XX at XXX.
5. Our record shows that both the Beneficiary and the Deceased lived at the above address until the Deceased moved to XXX.
6. The Beneficiary received a death benefit payment from the Deceased's superannuation fund, XXX.
7. You applied for a private ruling on 22 January 20XX.
8. To support the application, the Beneficiary provided the following documentation:
• XXX statement for the Beneficiary, with address of XXX, covering transactions from DDMM 20XX to DDMM 20XX, showing the below transactions:
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - credit from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - credit from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX with description of XXX
• XXX statement for the Beneficiary, with address of XXX, covering transactions from DDMM 20XX to DDMM 20XX, showing the below transactions:
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
• XXX statement for the Beneficiary, with address of XXX, covering transactions from DDMM 20XX to DDMM 20XX, showing the below transactions:
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XXX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XX - transfer from XXX
- DDMM 20XX: $XX - transfer from XXX
- DDMM 20XX: $XX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
• XXX statement for the Beneficiary, with address of XXX, covering transactions from DDMM 20XX to DDMM 20XX, showing the below transactions:
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
• XXX statement for the Beneficiary, with address of XXX, covering transactions from DDMM 20XX to DDMM 20XX, showing the below transactions:
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - transfer from XXX
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
- DDMM 20XX: $XXX - XXX payment
• XXX statement for the Beneficiary, with address of XXX, covering transaction dates from DDMM 20XX to DDMM 20XX, which shows the below payments from XXX Superannuation Fund:
- DDMM 20XX: $XXX - description XXX
- DDMM 20XX - description XXX $XXX
• XXX statement for the Beneficiary, with address of XXX, covering transaction dates from 1 October 20XX to 30 March 20X, which shows the below payments from XXX Superannuation Fund:
- DDMM 20XX: $XXX - description XXX
- DDMM 20XX: $XXX - description XXX
• XXX statement for the Beneficiary, with address of XXX, covering transaction dates from DDMM 20XX to DDMM 20XX, which shows transfer deposit of $XXX on DDMM 20XX
• Death certificate for the Deceased advising date of death of DDMM 20XX, dated 11 February 20XX
• Correspondence from XXX, dated 13 April 20XX, stating:
- on 29 March 20XX, the Beneficiary had XXX, XXX, XXX and sub total XXX, XXX, XXX and XXX
- on 2 July 20XX, the Beneficiary completed XXX to XXX
- in January 20XX, the Beneficiary developed XXX
- in March 20XX, the Beneficiary completed XXX
- during treatment period, the Beneficiary was dependant upon their parents for care and financial assistance due to being unable to work on medical grounds
• XXX trust account receipt, dated DDMM 20XX, showing:
- EFT payment for $XXX - proceeds of super for Estate XXX Deceased
• Statutory declaration from XXX, dated 9 July 20XX, stating the below:
- Financial support was given to the Beneficiary by his parents (the Deceased and husband), during time of undergoing XXX
- Beneficiary first moved in with parents (the Deceased and spouse) in June 20XX
- Parents provided XXX and XXX
- Deceased was in extensive pain from XXX
- Beneficiary was rushed to XXX once XXX diagnosis was confirmed and underwent XXX resulting in XXX and XXX
- Parents looked after the Beneficiary during this time and provided financial support as well as renting a unit in XXX for the Beneficiary close to the hospital
- Driving daily to treatments and providing food and medicine
- Beneficiary was put on XXX treatment as XXX had returned
- Beneficiary continued to live with parents in XXX with visits to XXX for treatments every XXX weeks for XXX years where Beneficiary would catch XXX
- Parents helped financially with XXX costs
- When the Beneficiary's XXX passed, the Deceased again provided support with XXX and XXX during recovery
- The Beneficiary received payments made from the Deceased into his bank account to help
- Beneficiary was unable to work again and eventually received a XXX
- The Beneficiary lived with the Deceased until they passed away
• XXX correspondence, signed and date by the Beneficiary on 19 May 20XX which states the below:
- XXX Pty Ltd is the trustee of the XXX Superannuation Fund
- the Deceased being a Member of the fund died on DDMM 20XX
- the Deceased did not make a XXX Nomination or XXX
- only dependant of the Deceased was the Beneficiary
- only persons to whom the trustee could pay the Deceased's Superannuation Death Benefit are:
- the Beneficiary; and the XXX
- last Will dated 6 June 20XX, the Deceased left her estate to the Beneficiary and their XXX in equal shares
- trustee of the Trust resolved to exercise discretion to pay the whole amount of the Deceased's Superannuation Death Benefit to the Beneficiary
• personal spreadsheet showing:
- death benefit payments totalling $XXX
- details of financial support provided by the Deceased to the Beneficiary totalling $XXX from March 20XX - March 20XX
9. In a response for further information required, we received PAYG payment summaries for superannuation income stream for the years ended 30 June 20XX, 20XX, 20XX and 20XX on 23 April 20XX for the following amounts:
• The year ended 30 June 20XX - taxed element $XXX, tax free component $XXX
• The year ending 30 June 20XX - taxed element $$XXX, tax free component $XXX
• The year ending 30 June 20XX - taxed element $XXX, tax Free component $XXX
• The year ending 30 June 20XX - taxed element $XXX, tax free component $XXX
• 2 x personal statement from Beneficiary, dated 19 October 20XX, stating:
- went to live with parents in 20XX after XXX and XXX
- was put on XXX and treatment was every XXX weeks which continued for XXX years
- now on XXX and still require further operations
• Financial support spreadsheet from the Deceased which we received previously
• inbound email on 23 April 20XX from tax agent advising the below:
- source of payment was made from XXX Superannuation Fund which was provided through transferring funds into Beneficiary's bank account
- Beneficiary was living and working in XXX as a teacher prior to coming back to Australia
- duration of financial dependency was for period March 20XX to March 20XX
10. The Beneficiary was seriously ill from a diagnosis of XXX in 20XX.
11. The Beneficiary was not financially dependent on the Deceased as the Beneficiary received sufficient financial support from: XXX, XXX and XXX payments.
12. There have been no evidence provided to determine if the Deceased was financially dependant on the Beneficiary.
13. The Deceased cared for the Beneficiary from 20XX to 20XX by providing:
a) XXX support, including paying for their XXX, XXX and XXX while the Beneficiary was undergoing treatment
b) personal care and assistance by taking the Beneficiary to XXX
14. On 28 July 20XX, ATO case officer XXX, made contact with you via email and the below was discussed:
• if the Beneficiary would also like to consider a ruling under financial dependency
• full bank statements (12 months prior to deceased's death) required from the Deceased to show XXX and payments for XXX while the Beneficiary was undergoing treatment
• provide any evidence to show XXX and XXX that the Deceased provided the Beneficiary XXX's prior to Deceased' death
• provide any other evidence to establish that the Beneficiary required substantial financial support to meet normal standard of living
15. In a response for further information required, the following documents and information were provided on 22 September 20XX:
• Statutory declaration from XXX, dated 22 September 20XX, stating the below:
• did not feel that bank statements from XXX months prior to Deceased's death was required to show evidence of XXX, XXX and XXX and now do not possess them
• already provided bank statements to show they received XXX from their parent from the time that they were diagnosed in 20XX
• previously submitted personal statement, dated 19 October 20XX stating that they came to live with their parents, was diagnosed with XXX and during treatment and surgery, they were dependant upon both parents for XXX and XXX, which included XXX, XX and some XXX
• previously provided letter from XXX, which states that they moved back home in 20XX and received XXX and XXX when diagnosed with XXX in 20XX
• previously submitted letter from XXX, dated 19 April 20XX, which details XXX, XXX and treatment and also refers that he was dependant upon parents for XXX and XXX due to being unable to work for XXX
• previously submitted personal statement from XXX, dated 9 July 20XX
• previously submitted personal statement, dated 19 October 20XX
• previously submitted correspondence from XXX, dated 13 April 20XX
Relevant legislative provisions
Income Tax Assessment Act 1997 Section 302-145
Income Tax Assessment Act 1997 Section 302-195
Income Tax Assessment Act 1997 Section 302-200
Income Tax Assessment Act 1997 Section 995-1
Income Tax Assessment (1997 Act) Regulations 2021 Section 302-200.01
Income Tax Assessment (1997 Act) Regulations 2021 Section 302-200.02
Reasons for decision:
These reasons for decision accompany the Notice of private ruling for The Trustee for the late XXX.
This is to explain how we reached our decision. This is not part of the private ruling.
Issue: Interdependency and financial dependency
Question:
Is XXX (the Beneficiary) a death benefits dependant of XXX (the Deceased) according to section 302-195 of the Income Tax Assessment Act 1997 (ITAA 1997)?
Summary:
1. An interdependency relationship as defined under section 302-200 of the ITAA 1997 does not exist between the Deceased and the Beneficiary, as all of the requirements set out in the legislation have not been satisfied in this case.
2. The Beneficiary is not a death benefits dependant of the Deceased as defined in section 302-195 of the ITAA 1997.
3. Consequently, the taxable component of the superannuation lump sum death benefit paid to the Beneficiary is assessable income, taxed under section 302-145 of the ITAA 1997.
Detailed reasoning
Meaning of death benefits dependant
1. Subsection 995-1(1) of the ITAA 1997 states that the term 'death benefits dependant' has the meaning given by section 302-195 of the ITAA 1997. Subsection 302-195(1) of the ITAA 1997 defines a death benefits dependant as follows:
A death benefits dependant, of a person who has died, is
a. the deceased person's spouse or former spouse; or
b. the deceased person's child, aged less than 18; or
c. any other person with whom the deceased person had an interdependency relationship under section 302-200 just before he or she died; or
d. any other person who was a dependant of the deceased person just before he or she died.
2. As the Beneficiary is the adult child of the Deceased, paragraphs 302-195(1)(a) and (b) of the ITAA 1997 are not applicable.
3. The definition of death benefits dependant does not stipulate the nature or degree of dependency required to be a dependant of the deceased person in paragraph 302-195(1)(d) of the ITAA 1997. However, it is generally accepted that this paragraph refers to financial dependence.
4. or financial dependant, in accordance with paragraph 302-195(1)(c) and 302-195(1)(d) of the ITAA 1997.
Interdependency relationship
5. Under subsection 302-200(1) of the ITAA 1997, an interdependency relationship is defined as:
Two persons (whether or not related by family) have an interdependency relationship under this section if:
a. they have a close personal relationship; and
b. they live together; and
c. one or each of them provides the other with financial support; and
d. one or each of them provides the other with domestic support and personal care.
6. Subsection 302-200(2) of the ITAA 1997 states:
In addition, 2 persons (whether or not related by family) also have an interdependency relationship under this section if:
i. they have a close personal relationship; and
j. they do not satisfy one or more of the requirements of an interdependency relationship mentioned in paragraphs (1)(b), (c) and (d); and
k. the reason they do not satisfy those requirements is that either or both of them suffer from a physical, intellectual or psychiatric disability.
7. To assist in determining whether two people have an interdependency relationship, paragraph 302-200(3)(a) of the ITAA 1997 provides that the regulations may specify the matters that are or are not to be taken into account.
8. Subsection 302-200.01(2) of the Income Tax Assessment (1997 Act) Regulations 2021 (ITAR 2021) states the matters to be taken into account. These matters are all of the circumstances of the relationship between the persons, including (where relevant):
l. the duration of the relationship
m. the degree of mutual commitment to a shared life
n. the care and support of children
o. the reputation and public aspects of the relationship
p. the degree of emotional support
q. the extent to which the relationship is one of mere convenience
r. any evidence that the parties intend the relationship to be permanent; and
s. the existence of a statutory declaration signed by one of the persons to the effect that the person is, or (in the case of a statutory declaration made after the end of the relationship) was in an interdependency relationship with the other person.
9. Paragraph 302-200(3)(b) of the ITAA 1997 states that the regulations may specify the circumstances in which two people have, or do not have an interdependency relationship.
10. Section 302-200.02 of the ITAR 2021 sets out the circumstances in which two people have an interdependency relationship.
11. Subsection 302-200.02(2) of the ITAR 2021 provides that an interdependency relationship exists between two people where:
t. they satisfy the requirements of paragraphs 302-200(1)(a) to (c) of the ITAA 1997; and
u. one or both of them provides the other with support and care of a type and quality normally provided in a close personal relationship rather than by a mere friend or flatmate, for example one person provides significant care for the other person when they are unwell or suffering emotionally.
12. Subsections 302-200.02(3) and (4) of the ITAR 2021 provide that an interdependency relationship also exists between two people where:
v. they have a close personal relationship; and
w. they do not satisfy one or more of the other requirements set out in subsection 302-200(1) of the ITAA 1997 because:
i. they are temporarily living apart, for example because one of them is temporarily working overseas or in gaol; or
ii. one (or both) of them suffers from a disability.
13. Subsection 302-200.02(5) of the ITAR 2021 states that two persons do not have an interdependency relationship if one of them provides domestic support and personal care to the other:
x. under an employment contract or a contract for services; or
y. on behalf of another person or organisation such as a government agency, a body corporate or a benevolent or charitable organisation.
14. All of the conditions in subsection 302-200(1) of the ITAA 1997, or alternatively, subsection 302-200(2) of the ITAA 1997, or one of the tests in section 302-200.02 of the ITAR 2021 must be satisfied for a person to be in an interdependency relationship with another person. We deal with each condition in turn, to establish if an interdependency relationship existed.
Close personal relationship
15. The first requirement to be met is specified in paragraph 302-200(1)(a) of the ITAA 1997, which states that the two persons (whether or not related by family) must have a close personal relationship.
16. This requirement is common to all of the tests specified in section 302-200 of the ITAA 1997 and section 302-200.02 of the ITAR 2021.
17. A detailed explanation of subsection 302-200(1) of the ITAA 1997 is set out in the Supplementary Explanatory Memorandum (SEM) to the Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004, which states:
e. A close personal relationship will be one that involves a demonstrated and ongoing commitment to the emotional support and well-being of the two parties.
f. Indicators of a close personal relationship may include:
i) the duration of the relationship;
ii) the degree of mutual commitment to a shared life;
iii) the reputation and public aspects of the relationship (such as whether the relationship is publicly acknowledged).
18. The above indicators are not an exclusive list and none of them are required for a close personal relationship to exist.
19. People who share accommodation for convenience (such as flatmates) or people who provide care as part of an employment relationship or on behalf of a charity are not intended to fall within the definition of a close personal relationship
20. The Explanatory Statement to the Income Tax Amendment Regulations 2005 (No. 7) stated that:
a. Generally speaking, it is not expected that children will be in an interdependency relationship with their parents.
21. While this statement does not preclude a child from being in an interdependency relationship with a parent, it suggests that interdependency only exists where the relationship goes beyond the usual relationship between an adult child and a parent.
22. A close personal relationship as specified in subsection 302-200(1) of the ITAA 1997 would not normally exist between a parent and an adult child because there would not be a mutual commitment to a shared life between the two. In addition, the relationship between parents and their adult children would be expected to change significantly over time. It would be expected that the adult child would eventually move out and secure independence from their parents.
23. However, where unusual and exceptional circumstances exist, a relationship between a parent and an adult child may be treated as an interdependency relationship for the purposes of subsection 302-200(1) of the ITAA 1997.
24. The relationship between the Beneficiary and the Deceased was not over and above a normal family relationship between a parent and an adult child.
25. No evidence has been provided to suggest a mutual commitment to a shared life existed between the Beneficiary and the Deceased.
26. It was not the case that the Beneficiary had always lived with the Deceased and intended to always do so.
27. While the parties had lived together for a short period of time at the time of the Deceased's passing, the Beneficiary had previously moved out of the family home, in order to XXX.
28. Furthermore, according to statements made by the Beneficiary and a third party, he moved back in with the Deceased due to being given a XXX.
29. The matters that indicate the Beneficiary and the Deceased did not have a close personal relationship before the Deceased's death are:
a. Deceased provided significant XXX and XXX to the Beneficiary throughout their XXX, regardless of whether they were living together or separately. The Deceased provided the Beneficiary with ongoing domestic and financial support. This level of care did not exceed the care and comfort that would usually be provided by a parent to an adult child. They did not have an exceptionally close relationship that goes above and beyond that of a normal parent and child relationship.
b. The Beneficiary and the Deceased have lived together since the Beneficiary was given a XXX in 20XX. Due to their disability, the Beneficiary continued to be significantly dependant on the Deceased for ongoing care and support, for the remainder of the Deceased's life. They would not have continued to live together if the Beneficiary did not receive a XXX. They did not have a strong mutual commitment to having a shared life.
30. Therefore, a close personal relationship did not exist between the Beneficiary and the Deceased and the first requirement specified in paragraph 302-200(1)(a) of the ITAA 1997 has not been satisfied in this case.
Living together
31. The second requirement to be met is specified in paragraph 302-200(1)(b) of the ITAA 1997 and states that two interdependent persons (whether or not related by family) live together.
32. The term 'live' is not defined in the ITAA 1997 or accompanying regulations. According to the Macquarie Dictionary, the term 'live' means to dwell or reside. The term 'reside' is defined as the action of dwelling in a particular place permanently or for a considerable time. In the context of paragraph 302-200(1)(b) of the ITAA 1997, the living arrangements must have some degree of permanency that is only disturbed by the death of one of the persons.
33. Prior to the Deceased's death, the Beneficiary and the Deceased lived together due to the Beneficiary's XXX in 20XX.
34. Consequently, the requirement specified in paragraph 302-200(1)(b) of the ITAA 1997 has been satisfied in this case.
Financial support
35. The third requirement to be met is specified in paragraph 302-200(1)(c) of the ITAA 1997, which states that one or each of these two persons provides the other with financial support.
36. Financial support under paragraph 302-200(1)(c) of the ITAA 1997 is satisfied if some level of financial support (not necessarily substantial) is being provided by one person (or each of them) to the other.
37. From XXX that have been provided, the Beneficiary had sufficient income from XXX and XXX payments to support themselves financially and was not financially dependent on the Deceased to pay for their utilities and everyday living expenses.
38. However, 'financial support' does not equate with financial dependence. The level of financial support required does not have to be substantial.
39. The provided XXX also shows that the Deceased made intermittent transfers to the Beneficiary.
40. The Decease also provided free accommodation and food to the Beneficiary.
41. Therefore, the Deceased provided the Beneficiary with financial support during the final years of the Deceased's life due to the Beneficiary's XXX and subsequently being unable to work.
42. Consequently, paragraph 302-200(1)(c) of the ITAA 1997 has been satisfied.
Domestic support and personal care
43. The fourth requirement to be met is specified in paragraph 302-200(1)(d) of the ITAA 1997, which states that one or each of these two persons provides the other with domestic support and personal care. In discussing the meaning of domestic support and personal care, paragraph 2.16 of the SEM states:
a. Domestic support and personal care will commonly be of a frequent and ongoing nature. For example, domestic support services will consist of attending to the household shopping, cleaning, laundry, and like services. Personal care services may commonly consist of assistance with mobility, personal hygiene and generally ensuring the physical and emotional comfort of a person.
44. Statement provided by third parties contend that the Deceased provided the Beneficiary some level of domestic support and personal care, which included taking the Beneficiary to XXX.
45. However, no evidence has been provided to support that the Deceased provided the Beneficiary with significant emotional support and care.
46. Therefore, the requirement in paragraph 302-200(1)(d) of the ITAA 1997 has been satisfied.
Financial dependency
47. According to the Macquarie Dictionary (2000 multimedia edition), one meaning of the term dependant is 'a person to whom one contributes all or a major amount of necessary financial support'.
48. In the CCH Macquarie Concise Dictionary of Modern Law, a dependant is defined as being 'a person substantially maintained or supported financially by another'.
49. In both dictionary definitions the emphasis is on the fact that the financial support or maintenance is substantial. In determining whether a person is a dependant it is necessary to establish the actual level of financial support that was provided to that person by the deceased. This is because dependence is assessed on the basis of the actual fact of dependence or reliance on the earnings of another for support. This is a question of fact (Aafjes v. Kearney (1976) 180 CLR 199, per Chief Justice Barwick).
50. Senior Member Fayle of the Administrative Appeals Tribunal (AAT), in Case [2000] AATA 8, in considering the definition of 'dependant' in relation to former section 27AAA of the ITAA 1936 stated:
"The Act is primarily concerned with commercial and financial matters. An Act relating to the imposition assessment and collection of tax upon incomes. As such, a question of dependency should be construed within that context. The relevant question in this sense is whether the applicants were financially dependant on their son at the relevant time."
51. Where the level of financial support provided to a person is substantial then that person can be regarded as a dependant. A financial dependant is considered to be a person to whom another person contributes all or a major amount of necessary financial support. If the level of financial support is insignificant or minor, beyond a level of subsistence, then the person should not be characterised as a dependant in terms of paragraph 302 195(1)(d) of the ITAA 1997.
52. In the case of Aafjes v Kearney (1976) 180 CLR at page 207 Gibbs J cited the High Court case of Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 77 at pages 188-189, and further clarified uncertainty concerning dependency noting:
"...but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependant on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters." [Emphasis added]
53. In the Victorian Supreme Court case of Fenton v. Batten [1949] ALR 69; [1948] VLR 422, Justice Fullager made the following comments regarding dependency:
"The word dependant is, in a true sense a technical term. If the evidence established that the alleged dependant relied on or relies on another as the source wholly or in part of his or their existence, then dependence is established. Questions of scale of living do not enter into the matter in the absence of some such statutory enactment."
54. These comments made in Fenton v. Batten when read in the context with the facts established in that case, confirm the definition of dependant contained in the CCH Macquarie Dictionary of Modern law and the meaning quoted above from the Macquarie Dictionary.
55. In the full High Court case of Kauri Timber Co. (Tas) Pty Ltd v. Reeman (1973) 128 CLR 177, Justice Gibbs (as he then was) in speaking of previous cases on the issue of dependency stated that:
"The principle underlying these authorities is the actual fact of dependence or reliance on the earnings of another for support that is the test."
56. Handing down the decision in Re Malek v. Commissioner of Taxation (Cth) Case [1999] AATA 678 (Malek), Senior Member Pascoe further clarified the meaning of the word dependant, stating:
"In my view, the question is not to be decided by counting up the dollars required to be spent on the necessities of life for [Mrs Malek], then calculating the proportion of those dollars provided by the [son] and regarding their as a dependant only if that proportion exceeds 50%...In my view, the relevant financial support is that required to maintain the persons normal standard of living and the question of fact to be answered is whether the alleged dependant was reliant on the regular continuous contribution of the other person to maintain that standard."
57. In Malek, the evidence supplied by the taxpayer was able to demonstrate that the financial support received from their deceased son had been significant. The son had accepted responsibility for mortgage repayments, maintenance and other expenses of the unit in which the taxpayer lived.
58. In Malek, Senior Member Pascoe refers to living expenses items:
"In the year ended 30 June 1992 the rate of pension was approximately $153 per week. Based on Mrs Malek's memory, cheque books and other information, her accountant estimated that her weekly expenditure in 1992 was approximately $175 per week for food, medication, rates cleaning, heat, power, telephone, hairdressing and podiatry. He further estimated that Antoine Malek contributed approximately $258 per week to Mrs Malek's living expenses for food, mortgage payments, taxi fares, medical expenses, physiotherapy, body corporate fees and insurance, heat, power and telephone."
"The respondent submitted that some of the expenditure of both Mrs Malek and her late son was overstated, that some was not for the necessities of life for Mrs Malek and that, in sharing the unit, some expenditure of the son was equally for his own benefit."
59. That dependency involves more than the mere receipt of support, but also reliance on it, was affirmed by Hamilton J in Griffiths v Westernhagen [2008] NSWSC 851, [58]:
"For a relationship of dependency to be established, there must be more than the mere giving of money. Rather there must be a relationship where one party relies on the other for what is required for their ordinary living."
60. The tenor of the case law noted above refers to a level of dependency to maintain the dependant's ordinary living (Griffiths v Westernhagen), normal standards of living (Malek's case) and relying on another as a means of subsistence (Kauri Timber Co (Tas) Pty Ltd).
61. As no further documents has been submitted to support financial dependency, section 302-195(d) has not been satisfied.
Conclusion
62. As all of the requirements in section 302-200 of the ITAA 1997 have not been satisfied, the Deceased and Beneficiary were not in an interdependency relationship in the period just before the Deceased's death.
63. As the Beneficiary was not in an interdependency relationship with the Deceased and there were no further supporting evidence provided to establish financial dependency, the Beneficiary is not a death benefits dependant as defined under section 302-195 of the ITAA 1997.