Case J63

Members: MB Hogan Ch

N Dempsey M
P Gerber M

Tribunal:
No. 3 Board of Review

Decision date: 25 October 1977.

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N. Dempsey (Member): This taxpayer is a private company and its return for the year ended 30th June, 1976 showed that on the 1st March, 1976, it had purchased a ``V.W.'' Delivery Van for use in its business at a cost of $5,000. Deductions of $752 in terms of sec. 57AD and $2,000 in terms of sec. 82AD were claimed but were disallowed. Normal depreciation of $376 was allowed. Objection to the disallowances was taken and also disallowed and the matter is now before the Board.

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ATC 540

2. In the statement required to be furnished to the Board in terms of reg. 35(1) the Commissioner contends that sec. 57AD(1) operates to exclude the vehicle in respect to which the claim is made for the purposes of sec. 57AD. He also contends that no part of the amount of $2,000 claimed as an investment allowance is an allowable deduction under sec. 82AB because para. (a) of subsec. (2) of sec. 82AF provides that the Act does not apply to a motor vehicle of the type involved.

3. Stated simply it is the contention of the Commissioner that the V.W. Delivery van is a vehicle designed to carry a load of less than 1 tonne and accordingly it does not comply with the requirements of either section which requirements are in fact the same.

4. To assist the Board in arriving at a decision publications issued by the Australian Department of Transport setting out ``Definitions'' adopted and endorsed by the Australian Transport Advisory Council were tendered to the Board.

5. In effect what the Board has to decide as will become apparent is what meaning is to be given to the word ``load'' as used in both sections and in the same context or put in another way, how the load is to be measured and arrived at.

6. There is no doubt that the manufacturers, from details contained in their brochures relating to the vehicle, consider that the vehicle is designed to carry a load of 1 tonne or more but it is still necessary for the Board to examine the matter and to arrive at its decision based on the relevant facts.

7. The ``Compliance Plate'' attached to the vehicle by the manufacturers shows that the Gross Vehicle Weight of the van is 2300 kilograms and the Commissioner accepts that this would be factual. A compliance plate must be attached to every vehicle manufactured. Its purpose is to certify that the requirements of the Australian Transport Advisory Council, which is the body that endorses the Design Rules, have been complied with.

8. It is my view that the matter has to be decided in the light of the Australian Design Rules Definitions.

9. Proceeding on this basis it is seen that the Gross Vehicle Weight is 2300 kilograms. This is defined as ``maximum weight of a goods vehicle for which compliance with current or appropriate Australian Design Rules has been or can be established.'' ``Maximum Loaded Vehicle Weight'' is defined as (b) ``for a goods vehicle the gross vehicle weight as defined.'' It is clear then that in the case of this vehicle the maximum loaded weight is to be 2300 kilograms, the Gross Vehicle Weight.

10. It therefore seems that logically this gross loaded weight must include whatever is carried on the vehicle and this must encompass the weight of persons riding on the vehicle be they driver or a driver's assistant if provision is made for one. I accordingly adopt this view.

11. I now turn to the definition of ``Unladen Weight''. This is defined as ``the weight of a vehicle with a full capacity of lubricating oil, coolant and fuel but without goods, occupants or options except those options which are essential to the test for which unladen weight is specified.'' (The emphasis is mine.)

12. To me it is obvious that the weight of the load a vehicle is entitled to carry must be the difference between the designed ``Gross Vehicle Weight'' and the ``Unladen Weight'' as defined in the design rules.

13. There is undisputed evidence that the ``Gross Vehicle Weight'' of the V.W. Delivery van here in issue is 2300 kilograms. Evidence was also submitted, which is accepted by both parties, that when the vehicle was weighed at a public weighbridge with a full tank of petrol, full complement of oil, a spare wheel, a jack, tools, accessories, it weighed 1195 kilograms. When weighed with a driver and assistant the weight was 1300 kilograms.

14. In my opinion, and bearing in mind that the Act refers to a vehicle being designed to carry a load of not less than one tonne, the load that this vehicle is designed to carry should be arrived at as follows: -

      Gross Vehicle Weight, i.e. all up

      weight of the vehicle with full load

      of fuel etc. driver, assistant and

      goods or if no assistant then driver

      only and goods                               2300 kg.



      Less:



      
"
Unladen Weight
"
 i.e. the weight

      of the vehicle, plus fuel etc. but

      excluding occupants as per

      certificate                                  1195 kg.

                                                   -------

      Designed Load                                1105 kg.

                                                   -------
      

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ATC 541

15. On this basis the vehicle is designed to carry a load of more than one tonne.

16. The Board was referred by Counsel for the Commissioner to cases concerning whether a driver and or passengers should be taken into account in the load of a vehicle or a lift. I do not propose to refer to these cases in detail and in not doing so I do not mean any disrespect to learned Counsel. However, in my view they do not assist. This case being a question of what load the vehicle is designed to carry must be decided in the light of the design rules applying in Australia.

17. In my interpretation of these rules this vehicle is designed to carry a load in excess of one tonne and such being the case the objection must be upheld.

18. It was agreed at the hearing that the actual cost of the vehicle was $4908 and not $5000 as originally claimed and that the date of purchase was the 30th March, 1976 and not the 1st March, 1976. The depreciation (sec. 57AD) would therefore be $552 and not $752 as claimed and the investment allowance sec. 82AB would be $1963 and not $2000.

19. My decision is therefore that the objection should be allowed and the taxable income assessed should be reduced by $2139 ($552 + $1963 - $376 already allowed).