Case K30

Judges:
MB Hogan Ch
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 10 April 1978.

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M.B. Hogan (Chairman): The taxpayer is a young woman who is quite severely physically handicapped. She seeks to have a deduction allowed in her return for year ended 30th June, 1973 in respect of a sum of $694 paid to an association for handicapped persons (hereinafter called the Association), as medical expenses in terms of sec. 82F of the Act. The claim for a deduction is advanced under para. (h) of the definition of ``medical expenses'' in subsec. (3) of sec. 82F, the relevant portion of which I quote hereunder: -

```Medical expenses' means payments -

• ...
• (h) as remuneration of a person for services rendered by him as an attendant of a person who is... permanently confined to bed or an invalid chair.
• ...''

2. The taxpayer was, in the year of income, permanently confined to a wheelchair during waking hours though she was able to work, and had worked for some ten years, as a clerk with the Association. Her needs for attendance in the year of income, she summarised very succinctly in the following words -

``A personal need to be assisted out of bed, toileted, showered, dressed, my hair and glasses attended to, taken to the dining room. It is a split level building so I needed to be assisted in the wheelchair to this other level. I needed toileting during the day. I needed my food cut up both at lunch time and at dinner time. I needed to be undressed and put to bed at night.''

The taxpayer testified that she received these services by way of attendance from various personnel employed at the hostel where she resided throughout the year. The hostel was managed and run by the Association. Her evidence was fully corroborated by the president of the Association who attended and gave evidence on behalf of the Commissioner. The president of the Association was employed in the 1973 income year as the welfare officer attached to the hostel where the taxpayer resided.

3. Other evidence given by the president was to the effect that -

• (i) the hostel where the taxpayer stayed during the year was registered with the Department of Social Security as a hostel; it was not registered under the National Health Act . An appropriate description was a caring hostel.
• (ii) all of the residents of the hostel had to be employed or in full time study. It was not conceived nor run as a nursing home.
• (iii) all the residents paid the same amount per week to the hostel regardless of the nature of their disabilities. The amount was set at ``70% to 80% of what the pension amount was''.
• (iv) the charge covered ``living accommodation plus sustenance''. Later this was amended to ``their sustenance, the assistance they need and lodging''.
• (v) the hostel ran at a loss. The charges did not cover the costs of services provided.

4. Having regard to the evidence, the question which emerges is whether the payments (or any part of those payments) made by the taxpayer to the Association in the year of income represent payments ``as

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remuneration to a person for services rendered by him as an attendant'' of the taxpayer who is indisputably a person confined to an invalid chair. Relevant to consideration of this problem is the fact that the definitions in subsec. (1) of sec. 6 extend the meaning of the word ``company'' to embrace ``bodies or associations corporate or unincorporate'' and the word ``person'' to include ``a company''. It is to be noted however that the extended meanings given to the words apply only ``unless the contrary intention appears''. For the sake of completeness, I should record that sec. 23 of the Act Interpretation Act 1901 reads -

``23. In any Act, unless the contrary intention appears -

• (a) Words importing the masculine gender shall include females; and
• (b) Words in the singular shall include the plural and words in the plural shall include the singular.''

5. Even having regard to the extension of the natural meanings of the words which, in certain circumstances, may be effected by reason of the above definitions etc., I remain unconvinced that the payments here in question can be regarded as remuneration of the Association (by definition a ``company'', and, therefore, a ``person'') for services rendered by the Association - (``him'' by virtue of the Acts Interpretation Act extends to cover the female gender but does not appear to embrace an incorporeal person of neither of the two genders) - as an attendant on the taxpayer. In my view, read altogether in their context, the relevant words from the definition of ``medical expenses'' require payment to be made to an individual natural person who acts as an attendant; any other interpretation it seems to me is contrary to the apparent intention of the words of the Act. Accordingly, the extended meanings are not available to aid the taxpayer's claim.

6. If I be wrong in the conclusion I have just reached, I must, on the evidence, find as a fact that there has been no payment as remuneration for the defined services. The evidence is that the arrangements with residents of the hostel are the provision of board and lodging only and that the payments to the hostel relate only to that provision; there was, in the year of income, an understanding with the more severely handicapped residents that, what might be called chair attendance would be provided, but there is nothing in the evidence to suggest that any part of the charge made by the Association relates to the provision of that attendance by the Association. In fact, the evidence is to the opposite effect; all residents, regardless of the extent of their handicaps, were required to contribute the same amount weekly to the Association's funds. The amounts contributed did not cover normal operating costs. There is then nothing to support the taxpayer's claim that the weekly payment, or any part of it, was made as remuneration of the Association for the performance of the specified services. Rather the act of attendance appears, on the evidence, to have been carried out gratuitously as a charitable act by the employees of the Association who were not medical or para-medical personnel but were employed under the State award governing hotel, motel and boarding-house staff.

7. Accordingly, I agree with the Commissioner's decision on objection and confirm the assessment, notice of which issued on 10th December, 1973.