Case D71

Judges:
JL Burke Ch
RC Smith M
RE O'Neill M

Court:
No. 1 Board of Review

Judgment date: 9 November 1972.

---

J.L. Burke (Chairman) and R.C. Smith, Q.C., and R.E. O'Neill (Members): The taxpayer's daughter, then aged eight years, during the year of income ended 30 June 1970 attended and received formal education at a primary level school established and maintained by the New South Wales Government. During school terms but outside school hours the daughter received tuition twice a week in the art of ballet at a dance academy with the object of attaining the standards set for the examinations of The Royal Academy of Dancing, Grade I, which she presented herself for and passed in December 1970. Ballet is not a subject available to the taxpayer's daughter at the primary school attended by her and so she could neither be instructed nor examined in this art as part of her education at that school.

2. The taxpayer paid an amount of $13 to the dance academy during the year ended 30 June 1970 and claims a concessional deduction therefore under sec. 82J(1) as being a payment of ``education expenses'', that term being defined in sub-sec. (6) of the said section to mean ``expenses necessarily incurred by the taxpayer for or in connection with full-time education at a school, college or university or from a tutor.''

---

ATC 422

3. It may be conceded at the outset that tuition in ballet falls within the broad and almost limitless scope of ``education'' but more is required for the deduction to be allowable than that the expenditure be on education generally - it must be expenditure ``necessarily incurred... for or in connection with full-time education at a school...''

4. The ballet lessons were not part of the school curriculum where the taxpayer's daughter received her ``full-time'' education and it cannot be said, as was submitted by the taxpayer, that the ballet tuition itself constituted ``full-time'' education. Clearly the expenditure was not ``for'' full-time education. See per the Chairman of Board No. 3 in Case C76,
71 ATC 340, a case decided adverse to the taxpayer on facts identical with those of the present reference.

5. The remaining question is whether the expenditure was ``necessarily incurred... in connection with full-time education at a school'' as required by the definition.

6. Without committing ourselves to all that was said in
14 T.B.R.D. Case P49 we adopt the interpretation there given of those words by Mr. J.D. Davies when he said of the effect of the word ``necessarily'': ``Its effect is to require a clear connection 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'' (p.227).

7. The fact that ballet instruction was received outside the school does not of itself preclude deduction of the fees. Thus the cost of having a child coached at his home in, say, mathematics, it being a school subject, would clearly come within the definition because the subject is part of the recognised school curriculum. We guard ourselves against saying that every subject must be thus recognisable for, probably, there are schools at which instruction is available in, say, drama in which case it might well perhaps be argued that extra fees therefore would be allowable even if drama be a non-examinable subject. (See our agreement with the concession made for the Commissioner at p. 382 of Case A67,
69 ATC 380).

8. Nevertheless the cost of the ballet instruction now in question cannot we think be brought within the interpretation of ``education expenses'' which we have quoted. We cannot see the required degree of connection between the expenditure thereon and the child's ``full-time education at a school''. We would therefore uphold the Commissioner's decision on the objection and confirm the assessment.

Claim disallowed.