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. G.W. Beck (Member)

The facts in this case have been set out by my colleagues but, briefly, in 1979 tax year the taxpayer spent 158 days in a provincial town situated in Zone B and 207 days on a prawn trawler that was during that time unloading, refuelling and provisioning in Weipa or Karumba or fishing the waters of the Gulf of Carpentaria. The Commissioner has allowed the taxpayer a rebate under sec. 79A as follows:

           Zone A - 1 month

           = 1/6 x 216                    36

           Zone B - 11 months

           = 5/6 x 36                     30

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                                         $66

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The taxpayer is claiming the full Zone A rebate of $216.

2. The provisions of sec. 79A have been considered by all members of this Board in Case P82,
82 ATC 399 which also concerned a taxpayer working on a prawn trawler in the Gulf of Carpentaria. In the light of the facts provided in this case I agree with the Chairman that, unlike the taxpayer in Case P82, this taxpayer had strong residential links with the provincial town in Zone B. In fact, for the same reasons as set out by the Chairman, I regard this taxpayer as a resident of that town.

3. A resident of Zone B can nevertheless secure a Zone A rebate if he spends more than half the year actually in Zone A (sec. 79A(4)(b)). As I pointed out in my reasons in Case P82, the waters of the Gulf of Carpentaria are not included in Zone A as described in Pt. 1 of Sch. 2 of the Act although both Weipa and Karumba are in Zone A. There was no evidence as to how many of the 207 days during which the boat operated out of those ports that it was actually at Weipa and Karumba as opposed to being on the waters of the Gulf. However, it would seem extremely unlikely that more than 182 of the 207 days were spent in port and this is what would be required for the taxpayer to be described as physically in Zone A for more than half the year and thereby qualify as a ``resident'' of that zone under sec. 79A(4)(b).

4. Rebates are allowed under sec. 79A only to residents of Zone A and Zone B as defined in sec. 79A(4). The amount of rebate is specified as follows:

Sec. 79A(2)(a) - resident of Zone A: $216

Sec. 79A(2)(b) - resident of Zone B who has not resided or been in Zone A during the year: $36

Sec. 79A(2)(c) - any other case: such amount as the Commissioner considers reasonable

It seems to me that sec. 79A(2)(c) can apply only to two types of taxpayer - to persons residing in Zone B who have also resided or been in Zone A during the year and to persons residing outside Zone A and Zone B but who have actually been in both zones for a period exceeding one-half of the year of income.

5. This taxpayer is one of the ``other cases'' because he resided in Zone B and was in Zone A (i.e. at Weipa and Karumba) for some time. The Commissioner obviously recognised this and the ``reasonable'' rebate in the circumstances was, according to him, $66. In view of the clearly stated purpose of the rebates (i.e. to compensate for uncongenial climatic conditions, isolation and high cost of living) it seems particularly niggardly of the Commissioner when he is confronted by a taxpayer who spent more than half a year either in Zone A (i.e. Weipa or Karumba) or in a region that is probably more uncongenial, more isolated and more costly to live than those two towns to deny the full Zone A rebate. The Commissioner has the power in the ``other cases'' specified in sec. 79A(2)(c) to give a rebate that is ``reasonable''. Under sec. 79A(2)(a) and (b) he has no power to vary specified amounts.

6. I have no hesitation in granting the taxpayer the full Zone A rebate of $216 and direct that his assessment be amended accordingly.

Claim allowed