Case R62

HP Stevens Ch

TJ McCarthy M
PM Roach M

No. 1 Board of Review

Judgment date: 12 July 1984.

H.P. Stevens (Chairman)

The questions in this reference relate to various items of expenditure claimed by a handicapped school teacher as deductions in his return of income for the year ended 30 June 1981, viz. self-education $250, maintenance and repairs $940, depreciation library $15 and rates $68.

2. In essence the taxpayer's arguments were based on the view that the various claims were fair and reasonable. He indicated in address that an officer of the Commissioner had told him the cases didn't support him but he nevertheless regarded his case as unique and fair and reasonable. He hoped the Board would recognise them as fair and reasonable and that, as there were no concessions to a working disabled person, it ought to be assumed they were entitled to a concession.

ATC 455

3. Unfortunately the allowability of deductions does not depend upon whether the person claiming them regards such as fair and reasonable. As I have said in other cases e.g. Case Q41 (Mercier v. F.C. of T.)
83 ATC 195 ``whilst one is readily sympathetic... and full of admiration for the taxpayer's fight against (his) disabilities, it is impossible to forget the fact that the Board is required to follow the words of the statute under consideration''. If the words of the statute do not allow for the item claimed then sympathy and a consideration of what is fair and reasonable cannot remedy that failure - it is a matter for the Legislature to remedy if considered appropriate. On this aspect reference could also be made to Case 22,
15 T.B.R.D. (O.S.) 198 decided almost 40 years ago. In that case a handicapped person was making an ``appeal on behalf of all people who have disabilities and who try to do their work and gain an income rather than go on the dole''. Mr. G.J.S. O'Sullivan commented at p. 199 on the taxpayer's submission thus:

``This submission is, of course, social or political rather than legal in its concept and involves considerations which are altogether outside the purview either of the Commissioner or of this Board, both of whose duty it is to apply the plain provisions of the law as presently embodied in the Assessment Act.''

4. Additionally a Board cannot ignore decisions that have been handed down by Courts. I think the taxpayer recognised this for in his address in reply he acknowledged that, if applied strictly and literally, he wouldn't have much of a chance and that it would be unfortunate if the Board was tied to decisions. Unfortunate as it may be a Board is ``tied'' to the words of the statutes and to the principles outlined in relation thereto as set out in decisions handed down by the Courts.

5. Turning now to the individual claims at issue the first is that for self-education expenses. In his return a total amount of $277 was claimed and on assessment $27 was allowed as a deduction and $250 for rebate purposes. It was the taxpayer's contention this $250 should have also been allowed as a deduction. However I can see no reason to doubt that the course undertaken (Barristers Admission Board) satisfies the provisions of sec. 159U with the result that sec. 82A(1) operates to allow, in terms of sec. 51(1), only the excess over $250, i.e. $27.

6. With respect to the maintenance and repairs claim there was at the rear of a home purchased by the taxpayer and his wife in 1976 a double brick garage fitted with a tiltadoor and with no windows. This garage was in due course converted in 1979 or 1980 to a ``home study'' but the tiltadoor did not keep the weather out. Accordingly it was decided during the 1981 year to replace the tiltadoor with glazed doors that would be weatherproof (and allow light in) and which could be locked. It was said that as this restored the garage to what it would have been when first constructed in 1920 it should be regarded as a repair. This completely overlooks the fact that the expenditure was not incurred to remedy any defect in the structure acquired but because it was an essential element in the conversion of a garage to a ``home study''. The expenditure of $887.13 clearly was not for ``repairs'' (and would in any event be of a capital nature) and therefore not allowable in terms of sec. 53(1). The same applies to the floor rug and blinds which make up the balance of the $940.06 claim.

7. The depreciation library claim is similarly misconceived in that whilst sec. 62(1) makes it clear the term ``depreciated value'' is based, inter alia, on the cost thereof the taxpayer's view is that, since his books become more valuable with time, it was only fair that the depreciated value should be adjusted accordingly.

8. In relation to the final item the taxpayer claimed 10% of total rates and electricity and only the rates component $68 was disallowed on assessment. He said this claim was fair and reasonable and that technicalities and decisions should not be brought into it. It will suffice on this claim if I merely say that I have read the draft reasons of my colleague Mr. Roach and agree with the conclusions reached by him.

9. For the above reasons I would uphold the Commissioner's decision on the taxpayer's objection and confirm his assessment for the year ended 30 June 1981.

JUD/84ATC454 history
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