Case P83

Judges: MB Hogan Ch

P Gerber M
GW Beck M

Court:
No. 3 Board of Review

Judgment date: 22 September 1982.

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Dr. P. Gerber (Member)

This reference came before us on agreed facts which are set out below:

• (1) For the period 1 July 1978 - 26 May 1979, the taxpayer was employed as the skipper of a prawn fishing boat.
• (2) From May 1979, the taxpayer operated a prawn fishing boat in partnership.
• (3) When fishing, the boats on which taxpayer worked operated out of, first, Weipa and then Karumba.
• (4) The taxpayer did not own, rent on a long term basis or maintain a house or other form of residence on the mainland or islands during the year.
• (5) The taxpayer rented, on a short term basis, accommodation in Cairns at various times during the year.
• (6) When operating out of Weipa and Karumba, taxpayer lived on board the boat.
• (7) Taxpayer was not physically present on the mainland within Zone A or on relevant islands, for more than one-half of the year of income.

2. As agreed facts, they tell very little of the whole story. The matter was heard in Cairns in the absence of the taxpayer who, understandably, preferred to fish somewhere in the Gulf beyond the reach of a cannon ball. ^[*] The sea, as far as a cannon shot will reach from the shore, belongs to the State it borders; cf. Bynkershoek, De Dominio Maris Dissertatio. If the matter were to be decided solely on the facts as agreed between the parties and submitted to the Board, the taxpayer would fail. It would be a default judgment and without merit. However, the taxpayer was represented by his accountant who happily gave ``evidence'' without objection from the bar table, all of which could be broadly characterised as ``hearsay''. From this ``evidence'', it emerged that the taxpayer, on a per diem basis, spent some 158 days in Cairns and, when fishing, one day a week in the port of Weipa, unloading, refuelling and whatever else prawners do on these occasions - enough to eke out a few miserable days of ``residence'' to make up more than half a year in the combined zones. Two questions thus arise: Should this ``evidence'' be taken into account and, if so, does it enable the taxpayer to succeed pursuant to para. (c) of sec. 79A(2)?

3. Section 79A(4) defines ``resident''. Paragraph (a) demands residence ``in that area'' for more than one-half of the year of income; (b) is satisfied by physical presence in that area, whether continuous or not, during more than one-half of the year of income; (c) confers a posthumous residence on someone who succumbs to the uncongenial climatic condition, isolation or high cost of living before attaining the required state of grace, having resided in the prescribed area for less than half the year of income. On the facts in this case (as augmented), I am unable to find that this taxpayer resided in the area in terms of para. (a). However, on a finding that the taxpayer was physically in Cairns (Zone B) and Weipa (Zone A) for more than half the year, he is a constructive ``resident'' as provided for in para. (b) of sec. 79A(4). This, in turn, enables this taxpayer to take advantage of para. (c) of sec. 79A(2) - ``any other case''.

4. Paragraph (a) of sec. 79A(2) provides an amount of $216 by way of rebate for ``residents'' of Zone A. Paragraph (b) provides a rebate of $36 for a ``resident'' of Zone B ``who has not resided or actually been in Zone A during any part of the year of income''. Paragraph (c) deals with the casus omissi - the resident of Zone B who has resided in Zone A as well as the person who can show that he has been in the two zones for more than half the year of income after the two ``beens'' have been glued together. This is such a case.

5. Dealing with the admissibility of the evidence, I am mindful that we are a mere administrative tribunal, attempting to do justice between the parties and not bound by the strict rules of evidence. If fiscal justice can be done, it ought to be done. In this case, all the merits are on the side of the taxpayer, even if the ``facts'' are not. Paragraph (c) of sec. 79A(2) gives the Commissioner a discretion to allow a rebate of not more than $216 and not less than $36. I take the view

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ATC 412

that once a taxpayer is over the ``resident'' threshold, one must do more than just count days spent in each zone. The section was clearly designed, inter alia, to compensate for the high cost of living of the two areas. For the reasons outlined in the Chairman's decision, I concur in the view that the Board should substitute its discretion for that of the Commissioner and allow a rebate of $216. I would allow the taxpayer's objection.