Case N97

Judges: MB Hogan Ch
P Gerber M

GW Beck M

Court:
No. 3 Board of Review

Judgment date: 13 November 1981.

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Dr. G.W. Beck (Member)

The facts in this case can be succinctly stated. The taxpayer is a nurse employed in a part of the Australia characterised by year round high temperatures that cause the locals to wear very light-weight and casual dress. The evidence was that females in this area do not wear stockings to work, but the Department of Health, which employs the taxpayer, specifies that conditions of service include a ``white uniform, shoes - brown or white lace-up and flesh coloured stockings/pantyhose''.

2. The taxpayer was allowed sec. 51 deductions for the uniforms and shoes but not for the pantyhose and, following her rejected objection, the Board is asked to review the disallowance of the cost of the pantyhose of $52.

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ATC 525

3. Although wearing pantyhose was a specified condition of the employment, the hose was of a type that could be described as normal wear for many occasions and at first blush it seems to fall quite outside the type of clothes the Courts have regarded as deductible because they were necessary for the work and peculiar to that work. As I interpret the facts and the surrounding circumstances in this case, however, I have concluded that this first impression is erroneous.

4. In
Burton v. F.C. of T. 79 ATC 4318 at p. 4321 Mr. Justice Smith referred to the principle laid down in
Lunney and Hayley v. F.C. of T. (1958) 100 C.L.R. 478 and said:

``... a perusal of the authorities since Lunney's case was decided shows that in respect of an employee the question invariably has been whether the evidence supported the conclusion that the outlay on travelling was incurred expressly or impliedly by reason of or in pursuance of the contract of employment.''

Burton's case was concerned with car expenses, but obviously this principle applies to expenditure generally. In a recent case before this Board, Case N41,
81 ATC 204 , the expenditure was on clothing and I accepted a test set out by a former Chairman of this Board in Case A45,
69 ATC 270 relating to such expenditure. At p. 271 he said:

``... a deduction may be allowable in respect of expenditure on clothing where in his occupation a taxpayer is under a recognized obligation to provide himself with a wardrobe of conventional clothing which is quantitatively in excess of what might be regarded as normal every day requirements,...''

This test seems to me to be squarely in accord with the principle enunciated by Smith J. on the basis of a line of cases and the fact that the excess expenditure is on clothes that can be described as conventional is surely irrelevant. ``Conventional'' is in any case a word with normative connotations and should be cautiously interpreted. The most conventional item of clothing worn by an Australian city dweller would indeed be unconventional if worn by a New Guinea tribal Highlander.

5. Regardless of this, I have accepted that the pantyhose in this case is conventional in the sense that it is similar to that worn by most females as every day wear. On that basis, the evidence here is, in effect, that the taxpayer had, in the words of the Chairman in Case A45, a wardrobe - perhaps only a drawer of a wardrobe - of conventional pantyhose that was quantitatively in excess of what could be regarded as normal in the hot climate in which the taxpayer worked. This quantitative excess was caused by the express employment condition that the hose be worn during working hours.

6. An alternative but more subjective view is that the pantyhose is part of a uniform. In a region where employed females, as a community group, do not wear stockings or pantyhose during their hours of employment, it seems a little eccentric to deny that females who are required by their contract of employment to wear hose are doing so as part of a uniform. This is especially so when the item is part of a package of specified items of outer wear, as was the case here.

7. The point made by the Commissioner's representative that the pantyhose worn was in no way distinctive, and thus lacks the character that part of a uniform must have, is based on the attitude adopted by Boards in the past. I am in general agreement with that attitude, but the circumstances of this case seem to me to cause the pantyhose, that happens to be of conventional colour and type, to be regarded as part of the uniform. However, whether or not that is so does not matter for this decision because I consider the expenditure allowable for the reasons stated in para. 5.

8. I would allow the taxpayer's objections and have the assessments amended accordingly.

Claim disallowed