Case T31

Judges: KL Beddoe Ch

P Gerber M
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 2 June 1986.

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Dr P. Gerber (Member)

This is a claim by a professional footballer for the cost of additional food consumed. The Commissioner - no doubt emboldened by recent changes to the Tax Act - submitted that meals were a purely private or domestic affair and/or not consumed ``in or in the course of'' gaining assessable income.

2. Whilst it may ordinarily be difficult to demonstrate that the consumption of a grilled steak, medium rare, washed down with a pint of beer has the necessary nexus with the derivation of assessable income, this claim exhibits some unusual features. This taxpayer suffers from a rare condition known as ``a weight loss problem''. He would start the football season weighing in at a healthy 17 ¼ stone and gradually waste away, like Mimi in La Boheme, until, by the end of the season, he would be reduced to a pitiful 15 stone and lack the requisite strength to break the line. He was thus dropped from first to second grade and lost income in consequence. Fortunately, a perceptive coach diagnosed the condition and issued the following prescription:

``As you have a tendency to lose weight which affects your playing ability during the season, I want you to eat the following items each week in addition to your normal meals:

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ATC 291

• 1. 3 kilos of steak, only medium cooked.
• 2. Potatoes at each meal, 1 kilo per week.
• 3. Bread at each meal, at least three loaves per week.
• 4. Beer is an excellent method of increasing weight, therefore at least 1 dozen cans per week.
• 5. At least one glass of Sustagen per day.''

3. Given that this taxpayer seems to suffer from some inbuilt error of metabolism which requires substantially more food than the amount consumed, on average, by other professional footballers, I am not persuaded that this additional food assumes the characteristics of a ``meal'' strictu sensu as opposed to being part and parcel of the process by which he earns assessable income. This taxpayer is like a badly tuned racing car burning an excessive amount of fuel. It would seem that some fine tuning with the carburettor will fix the problem, but that is a job for an A-grade mechanic, not the Commissioner for Income Tax. Whilst there may not be many taxpayers fortunate enough to be able to consume a carton of beer each week and toast the Commissioner's good health with every can, this taxpayer is one of them.

4. In the result, I find that the claimed outgoing is not of a private or domestic nature so as to introduce the exclusionary provisions of sec. 51(1). Evidence was given that the claimed outgoing was calculated on estimated cost of the various food items claimed in the relevant years and no serious challenge was mounted on quantum.

5. I would allow the objection in each of the three years.