Case Q14

Members: MB Hogan Ch

P Gerber M
GW Beck M

Tribunal:
No. 3 Board of Review

Decision date: 11 March 1983.

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Dr. P. Gerber (Member)

My colleague Dr. Beck has already set out the facts of this reference, which I gratefully adopt. In the circumstances, I see no need to repeat them.

2. The taxpayer in this case appeared less concerned to emphasize the ``special'' features of her own claim than to persuade the Board to lay down a general principle, to rewrite the law, and to disregard earlier decisions to the extent that they were in conflict with what she perceived the law ought to be. It apparently needs to be said again: Boards of Review, unlike judges, do not make law, but meekly follow the trail of judge-made jurisprudence. They also have regard to Acts of Parliament. Their function is predominantly one of review - was the Commissioner correct in his decision on the objection against which the taxpayer has ``appealed'' to a Board of Review?

3. In this case, after emphasizing that ``a stable home environment is most desirable when rearing young children'' and that ``a disruptive or unstable home life can have a deleterious effect on the personality and development of a young child'' - a proposition which is self-evident - this taxpayer then sought to persuade us that this stability can only be achieved by employing daily domestic help. However, that is putting the cart before the horse. The causa causans of the disruption of the stable home environment is the mother's decision to remove herself daily from home and child; the employment of a domestic servant is merely collateral and inter alia acta . Reference to such abstractions as ``a stable home environment'' and ``the personality and development of a young child'' obscures the fact that the domestic servant is a surrogate, employed in purely compensatory capacity. Is this sufficient to constitute ``special circumstances'' within the meaning of sec. 159L(4)(a)? I think not.

4. In
F.C. of T. v. Moody 81 ATC 4199 , Connolly J. had this to say:

``I should mention a further argument which was raised by the appellant although in truth it is not covered by any of the grounds of appeal. This was to the effect that where the special circumstances set up by the taxpayer include inability to care for the dependant by reason of the taxpayer's deliberately adopting a manner of living which takes him or her out of the home it cannot be just to allow the rebate. For my part I see no warrant in reading into sec. 159L(4)(a) a restriction of this character. It seems to reflect a social attitude which is, so far as one can judge, at variance with that of the community generally. There may indeed still be those who believe that the place of a married woman with children is in the home. They would obviously not include the retail trade and particularly, retailers of motor car and household appliances and those who provide various services associated with recreation. Many people stand to gain in varying degrees from the presence of married women in the workforce. But if there is one certain beneficiary of the earnings of the working wife it is the [Commissioner of Taxation]. However, it is sufficient to say that I see no warrant in the language of the subsection for this quaintly Victorian attitude. There is no indication that this point was taken before the Board of Review. It is not taken in the notice of appeal and I am unable to see that it is involved in the decision of the Board within the meaning of sec. 196(1).''

(At pp. 4202-4203.)

5. The above is classic dicta, dealing with a point not argued before this Board or on appeal, and must be read against the background of the facts in that case, which involved a severely retarded lad of 14 years of age, who was severely limited in his adaptation to the normal functions of society and required constant supervision. The housekeeper in that case lived with the family (as, indeed, did the housekeeper in
F.C. of T. v. Coleman 78 ATC 4355 ). In dismissing the Commissioner's appeal, his Honour held that the Court had no jurisdiction since the Board's decision did not involve a question of law. In a valuable exposition of his Honour's views on the interaction between social attitudes and sec. 159L(4)(a), Connolly J. noted that the statutory rebate will not automatically be excluded merely because a taxpayer deliberately adopts a manner of living which takes him or her out of the

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ATC 52

home; in determining whether there are ``special circumstances'', the whole of the factual situation must be looked at.

6. Looking at the whole factual situation in this case, we have a working mother whose work takes her, perforce, away from home for occasional trips involving some overnight stays. There was no suggestion that on these occasions the housekeeper worked other than her usual working time, commencing at 8.30 a.m. and leaving at 4.30 p.m. I do not find that these facts constitute ``special circumstances'' within the meaning of the section. If, in due course, ``social attitudes'' change sufficiently to bring this situation within the ambit of the rebate, no doubt a Court will show the way. A Board of Review, alas, cannot.

7. I would confirm the Commissioner's decision on the objection.