Case P128

Members:
HP Stevens Ch
JR Harrowell M
BR Pape M

Tribunal:
No. 1 Board of Review

Decision date: 17 December 1982.

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H.P. Stevens (Chairman) and B.R. Pape (Member)

The question for decision in this reference is whether the taxpayer is entitled to a rebate in terms of sec. 159J in respect of a parent-in-law who was not present in Australia.

2. In his return of income for the year ended 30 June 1981 the taxpayer, who has been in Australia for some years, claimed a partial parent-in-law rebate in relation to his mother-in-law who died in India in April 1981. The taxpayer supported his mother-in-law who had lived all her life in India and had previously claimed the appropriate rebate. When the conditions were changed - i.e. to require the dependant to be a resident of Australia - he applied to bring both his mother and mother-in-law to Australia as migrants. His mother didn't wish to come but his mother-in-law agreed to come and in October 1980 she was advised by the Australian High Commission in New Delhi to complete ``the medical and X-ray examinations form... which were sent to you on 12 January 1980'' so as ``to enable us to proceed with your application'' to join the taxpayer ``in Australia and to settle there''. No further official advices were tendered but the taxpayer said she went for the medical and ``applied for an Indian passport to get an `ENTRY' endorsement from our Australian High Commission''. Before such Indian passport was issued she passed away.

3. The taxpayer is aware that to qualify a dependant needs to be a resident of Australia but relies upon two matters. Firstly, that, as a similar claim was allowed in his 1980 assessment, it had been accepted that his mother-in-law was a resident so that his 1981 claim should also be allowed. Secondly that there is a note appearing on the return form, and in the CCH 1982 Australian Master Tax Guide ¶ 1153, stating, inter alia, that:

``... a rebate may be allowable where a dependant is temporarily overseas or in the case of a dependant wife only, is awaiting early migration to Australia.''

so that his mother-in-law qualified because she was awaiting early migration and was only temporarily overseas.

4. As explained at the hearing to the taxpayer a Board can only apply the law to the facts of the year of income before it, with the effect that it is irrelevant what has occurred in an earlier year. If a rebate has been allowed previously then that is not decisive for the year before the Board - it may be that it was wrongly allowed. If an item were incorrectly disallowed in an earlier year that cannot determine an issue against a taxpayer in a later year and similarly for an allowance in an earlier year.

5. In relation to the second point notes on a return form, etc., cannot determine the law - although one would expect that properly worded and understood they would be in accordance with the law. To us the term ``temporarily overseas'' connotes a person who is normally present in Australia but who

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ATC 645

has gone overseas for a visit, etc., and will be returning in the near future. It does not connote a person who has never been in Australia but who is awaiting the carrying out of steps that will enable her to come here for the first time.

6. Turning to the Act itself the term ``resident'' is defined in sec. 6(1) and, on the facts, it is our view that the taxpayer's mother-in-law was never a resident of Australia. She was not residing in Australia, was not domiciled in Australia and had not been in Australia during more than one-half of the year of income.

7. For the above reasons we would uphold the Commissioner's decision on the objection and confirm the taxpayer's assessment for the year ended 30 June 1981.