Case K30

Judges: MB Hogan Ch

GW Beck M

Court:
No. 3 Board of Review

Judgment date: 10 April 1978.

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Dr. G.W. Beck (Member): This taxpayer is confined to a wheelchair and was in this condition during 1973 tax year when $694 was paid to a charitable association which maintained a hostel at which she resided and from the staff of which she received certain special care and attention. She had claimed this amount as a deduction under sec. 82F and the claim was rejected by the Commissioner, as was her subsequent objection.

2. Section 82F(3)(h) includes in medical expenses payments ``as remuneration of a person for services rendered by him as an attendant of a person who is blind or permanently confined to a bed or an invalid chair''. If the amount claimed by the taxpayer is to be allowed the payments made must fit this description.

3. There is no doubt that the taxpayer made payments to a statutory person - in terms of sec. 6 ``person'' includes a company and ``company'' includes bodies such as the organisation that received the $694 from the taxpayer. In evidence the taxpayer described the services received:

``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

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ATC 287

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. This would have come to approximately an hour and a half a day which would probably be about ten hours each week.''

The Welfare Officer from the association (called by the Commissioner) endorsed this statement, but said he thought the taxpayer would have required personal assistance during fifteen hours per week rather than ten hours. He claimed to know the taxpayer's circumstances well and had personally assisted her during her residence in the hostel.

4. The cost of residing at the hostel from 16th October, 1972 to 9th July, 1973 was $15 per week (and before that time $14.50 per week) and it is doubtful whether this covered the cost of food and accommodation. However, the taxpayer did receive personal services as well and it can be asked whether the $15 per week was for food and accommodation, the personal services being free. As all residents of the hostel paid the same weekly amount it is possible to regard the services given by hostel staff as cost free. I prefer to regard the payments as being in respect of all the benefits the taxpayer received and to assume that the cost of board and of personal attention were both discounted. It is clear that only part of the sum paid by the taxpayer, $694, can be considered for deduction.

5. We have then payments made to a statutory person and fifteen hours of services rendered by way of personal attention to this taxpayer each week. However, to fall within sec. 82F(3)(h) the payments must be ``remuneration'' and this appeared to pose problems because the etymological sense of this word seemed to confine its use to a relationship to natural persons. In other words, only flesh and blood individuals can derive remuneration. Reference to some notable authorities has caused me to reject this limitation on the interpretation of ``remuneration''. Fowler's Modern English Usage obviously sees no distinction in meaning between ``remuneration'' and ``payment'' and goes so far as to suggest that derivatives of ``remunerate'' ``are, as compared with `pay'(ing), formal words, and should not be preferred, as they often are, without good reason''. Roget's Thesaurus appears to see no impediment to the treatment of ``remuneration'' and ``payment'' as alternatives, Mozley and Whiteley's Law Dictionary says ``remuneration'' is ``payment for services'', and the Shorter Oxford English Dictionary gives as its first definition of ``remunerate'' ``to repay, requite, make some return for (services, etc.)'' and specifically restricts reference to persons to a second definition. I therefore think that as a general rule statutory persons can receive remuneration, but it is of course necessary to look at accompanying words in any specific section.

6. In this section the remuneration (payment) must be derived by ``a person for services rendered by him''. ``Him'' certainly includes ``her'', but it can scarcely be stretched to include a statutory person in the form of a corporation or an association. The words used in the subsection lead me to conclude that expenses of the kind claimed by the taxpayer can only be allowed when paid to a natural person for services rendered by that person whilst attending an incapacitated taxpayer. Even if no restriction is deemed imposed by the use of the word ``remuneration'' the other words in the subsection impose a restriction that cannot be ignored.

7. I regret that the claim must thus fail. I confirm the assessment for the year ended 30th June, 1973.

Claim disallowed