ATO Interpretative Decision

ATO ID 2002/211 (Withdrawn)

Income Tax

• This ATO ID is withdrawn as it does not accurately reflect the ATO view due to legislative changes to the definition of spouse contained in section 995-1 of the Income Tax Assessment Act 1997.
  This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Issue

Is a dependant spouse tax offset allowable under section 159J of the Income Tax Assessment Act 1936 (ITAA 1936) for a taxpayer whose partner is of the same sex?

Decision

No. A dependant spouse tax offset is not allowable under section 159J of the ITAA 1936 for a taxpayer whose partner is of the same sex.

Facts

The taxpayer has a partner who is of the same sex as the taxpayer.

The taxpayer and their partner live together.

The taxpayer's partner does not derive any income.

The taxpayer financially supports their partner.

Reasons for Decision

Subsection 159J(1) of the ITAA 1936 states that where a taxpayer contributes to the maintenance of a dependant and the dependant is a resident, the taxpayer is entitled to a tax offset.

Subsection 159J(2) of the ITAA 1936 specifies that a dependant includes a taxpayer's spouse.

A spouse is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). The definition states that:

'the spouse of a person includes a person who, although not legally married to the person, lives with the person on a genuine domestic basis as the person's husband or wife.'

There is no requirement in the definition to be legally married according to the laws of Australia or another nation. However the definition states that the person must live with the person on a genuine domestic basis as the person's husband or wife. The term 'husband and wife', is not defined in tax legislation, therefore the ordinary meaning of the term is utilised.

The ordinary meaning of 'husband and wife' was examined in the case Gregory Brown v. Commissioner for Superannuation ( 1995) 38 ALD 344 at page 349; (1995) 21 AAR 378 at page 383 where the Administrative Appeals Tribunal stated:

'For whatever other changes the words "husband" and "wife" may have undergone over the years they retain, in our opinion, their complementary gender connotations. A "wife" is the female partner of a marital relationship and a "husband" the male partner.'

The relationship between the taxpayer and the taxpayer's partner does not fall within the ordinary everyday meaning of a husband and wife because the taxpayer's partner is of the same sex as the taxpayer. The taxpayer's partner does not satisfy the definition of a spouse as defined in section 995-1 of the ITAA 1997 as the taxpayer and the taxpayer's partner are not living on a genuine domestic basis as 'husband and wife'.

Accordingly, the taxpayer is not entitled to a dependent spouse tax offset under section 159J of the ITAA 1936.

Year of income:  Year ended 30 June 2001

Legislative References:
Income Tax Assessment Act 1997
   section 995-1

Case References:
Gregory Brown v. Commissioner for Superannuation
   (1995) 38 ALD 344;
   (1995) 21 AAR 378;

Keywords
De facto relationships
Spouse rebates
Dependent spouse
Spouse

Business Line:  Small Business/Individual Taxpayers

Date of publication:  28 February 2002

ISSN: 1445-2782