Case C76

Judges: FE Dubout Ch

G Thompson M
N Dempsey M

Court:
No. 3 Board of Review

Judgment date: 19 November 1971.

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Gordon Thompson (Member): Taxpayer claims an amount of $95 expended by him for ballet tuition for his children. The two children during the year in question attended a local public school where ballet was not part of their curriculum, but received instruction in ballet from a private tutor three times per week outside school hours.

2. The claim is made pursuant to sec.82J of the Income Tax Assessment Act in respect of education expenses. In that section the term ``education expenses'' means ``expenses necessarily incurred by the taxpayer for or in connection with full-time education at a school, college or university or from a tutor''.

3. I do not doubt that in appropriate circumstances ballet tuition would constitute education of the children. The difficulty in the case resides in the remainder of the statutory definition according to which the education expenses must be ``necessarily'' incurred ``for or in connection with'' the full-time education of the children at school.

4. When speaking of the interpretation of the word ``necessarily'' in that section, Mr. J.D. Davies (Member) in
14 T.B.R.D. Case No. P.49, at 227 said - ``Its effect is to require a clear connection

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ATC 342

between the expenditure and the full-time education of the child. It requires a closer or plainer connection than would be required by the words `for or in connection with' if they stood alone. ''Two similar claims for deduction in respect of expenses incurred for private ballet lessons for children attending school have been decided by this Board as then constituted. In both such cases reported as
10 C.T.B.R. (N.S.) Case 83, and
13 T.B.R.D. Case No. N.1, the Board expressed the view that it is necessary for the taxpayer to establish a substantial relation, in the practical sense, between the expenditure for the ballet lessons and the full-time education of the children at school. With respect, I adopt the reasoning so concisely expounded in these two cases.

5. Numerous arguments were canvassed at the hearing, and the administrative policy of the Commissioner in cases of this kind was referred to. Of course, such administrative rulings cannot bind the Board whose duty it is to construe the section according to law. Pursuant to my adopted construction of the section. I am reluctantly constrained to hold that taxpayer has not shown sufficient nexus between the private ballet expenses and the full-time education of the children at school to enable him to succeed in his claim.

6. For these reasons I agree with the decision of my colleague Mr. Dempsey to confirm the assessment.