Case G2

Members: AM Donovan Ch
GR Thompson M

RK Todd M

Tribunal:
No. 2 Board of Review

Decision date: 13 December 1974.

---

R.K. Todd (Member): In this reference the issue is the taxpayer's claim to deduct the cost of fees and clothing incurred in relation to a course in ballet undertaken in the year ended 30th June, 1971, by his daughters, then aged eight and eleven respectively.

2. At the relevant time the children in question were attending a government primary school and ballet as such was not a part of the school's curriculum. The school of ballet which they attended offered a course in accordance with the programme initiated by the Royal Academy of Dancing. The curriculum of the primary school included a segment or programme known as ``physical education'', and within that, as the curriculum tendered to the Board shows, there was to be found instruction and experience in what was referred to as ``Dance''. The curriculum guide which was tendered is nearly 70 pages long, and there are dangers of distortion in attempting to summarise it. It is nevertheless, I hope, fair to say that the programme offers a wide conspectus of all aspects of dance, involving an understanding of movement, rhythm, dramatisation and so on. It would be as well to set out the opening paragraphs of the guide so that the aims of the programme may be set out -

``Introduction

In dance, movement is used rhythmically and imaginatively as a means of expression and communication. If dance is to provide an enriching experience in the total education of the child, it should be concerned not merely with body mastery and skilled movement but also with using movement creatively and expressively. Children should not be restricted to learning established dances, but should be given the opportunity to learn, through experimentation, how to use movement as a medium of creative expression by developing their own dances. It is within this broader interpretation that dance should be considered as a creative art form, taking its place with music, art, and drama.

Because of its expressive and rhythmic qualities, dance is particularly suited to correlation with the other arts, and every opportunity to integrate these subjects should be used. Dance also lends itself to correlation with other subjects such as social studies, where themes or topics may be further developed by allowing the children to express their ideas through movement.

Aims of Dance

The aims of the dance program are -

to develop an awareness of ways in which it is possible to move the body so that they may be explored and used as a medium for self-expression and communication;

to encourage an awareness of rhythm through movement and to develop the ability to make meaningful responses to rhythmic accompaniments;

to foster through dance the development of creative expression;

to provide, through co-operative movement experiences with partners and in groups, a foundation for continuing social participation in dance;

to make participating in dance an enjoyable experience.''

---

ATC 10

3. The taxpayer said that the programme associated with the Royal Academy of Dancing has at each grade level certain content that is closely related to the content of the Dance programme included in the Dance curriculum guide for primary schools. It has, of course, further areas related to classical ballet that have no counterpart in the school Dance programme. The areas which might be regarded as common to both would be such as musical interpretation, rhythm, movement and so on. As in many areas of art, it is not possible to fit each aspect of the art into rigid compartments. There is overlap which is not merely inevitable but integral. The taxpayer said that dance and music contribute greatly to the all-round development and education of children and with all of these statements of fact and opinion one must entirely agree. It is however another thing altogether to conclude that the expenses of tuition in ballet are deductible as being within the meaning of the expression ``education expenses'' in sec. 82J(6) of the Income Tax Assessment Act. That definition is as follows -

```education expenses' means expenses necessarily incurred by the taxpayer for or in connexion with full-time education at a school, college or university or from a tutor.''

4. In a recent decision relating to the construction of sec. 82J(6) and the definition therein of the phrase ``education expenses'', I have said that I have had difficulty in accepting the proposition hitherto widely accepted that the word ``necessarily'' has in sec. 82J(6) a similar meaning to that accorded to it by the High Court in relation to sec. 51(1) of the Act, namely that it means no more than ``clearly appropriate, or adapted to'' the expenditure in question. In my opinion the word ``necessarily'', in the context of sec. 82J(6), means what it says and the force of the word ``necessarily'' demands that the expenditure be unavoidable in terms of what is made requisite by demand or by insistent request as part of the full-time education offered. It must have been an unavoidable consequence of the full-time education chosen, although that education may itself have optional elements.

5. Giving due weight to the taxpayer's argument that the ballet course had elements in common with the course in Dance conducted at the primary school, it is still my conclusion that the taxpayer's claim fails. If the view be accepted that ``necessarily'' means ``unavoidably'' in the sense described, the undertaking of the course at the school of ballet was in no way incurred as a consequence of the taxpayer's children embarking on the full-time education at the primary school which had been in fact embarked upon. The school in no way demanded or requested the incurring of the relevant expense. It provided a course in Dance which from my reading of the curriculum guide was intended to be self contained, although not exhaustive. If on the other hand the test be the one hitherto adopted, namely that the expense be appropriate in connection with full-time education at the primary school, it would still appear to me to be difficult to conclude that a sufficient degree of connection is shown simply because elements of the course in ballet have features in common with the course in Dance. It is not however necessary for me to come to a conclusion on this point, as in my opinion this is not the correct test.

6. There was some discussion at the hearing of the extent to which the taxpayer's children might study ballet at their intended secondary school. It seems however to be unnecessary to take this further since the school in question apparently ceased to offer ballet after ballet ceased to be an examination subject in the State in question at the school leaving level. I might add however in passing that it seems not to be of any moment whether or not a subject of tuition is examinable in some way. If it is offered and accepted by the school and student respectively as part of the full-time education of the student, that seems to me to be the end of the matter.

7. In my opinion the Commissioner's decision on the objection was correct and the assessment should be confirmed.

Claim disallowed