Case W4

Members:
KL Beddoe SM

Tribunal:
Administrative Appeals Tribunal

Decision date: 25 November 1988.

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K.L. Beddoe (Senior Member)

The question for decision is whether certain travel expenses amounting to $888 and certain accommodation expenses amounting to $1,280

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are allowable deductions within the terms of subsec. 51(1) of the Income Tax Assessment Act.

2. Subsection 51(1) relevantly provides for an allowable deduction for losses and outgoings to the extent to which they are incurred in gaining or producing the assessable income, or are necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. There is an exclusion for outgoings of a private nature.

3. The applicant is well known in his field of academic achievement being the author of standard works and a teacher of outstanding repute.

4. Although retired from full-time appointment at a university the applicant maintained an active academic career during the year ended 30 June 1985. His income tax return for that year (Exhibit A) disclosed the following income:

                                               $
      University (1)                         1,294
      University (2)                         2,587
      College of advanced education          7,555
      Fees from publishers                     530
      Royalties received from publishers     6,183
      

5. The claims for fares and accommodation relate to teaching duties undertaken at university (1) and the college of advanced education. The travel expenses relating to university (2) were reimbursed by that university and are not in dispute.

6. The respondent has allowed the applicant deductions for the following losses and outgoings:

• Depreciation of furniture, professional library, typewriter and TV
• Entertainment of academics
• Travel expenses to meeting with publishers
• Insurance on library and typewriter
• Light, power and heating of home study
• Newspapers and professional journals
• Postage and stationery
• Repairs to typewriter
• Subscriptions
• Telephone
• Typing fees

The total amount allowed was $3,027 which was offset against income from royalties. It is apparent that the applicant engages in a substantial level of income production in his own home judging by the income received and the amount and nature of the outgoings. The applicant said in evidence that he no longer writes new texts but is involved in second and subsequent editions of his previously published works.

7. Exhibit A also contained a note explaining that the applicant was employed as a part-time lecturer in teaching subjects at both the university (1) and the college. That note also stated that it was necessary for the taxpayer to incur railway travelling and hotel expenses while he is employed by these two institutions as he is obliged to commute between his place of residence and the relevant capital city and stay in the capital city for two nights during the lecturing period, i.e. 39 weeks (including examination periods) during the calendar period. The lectures are delivered at the two institutions in the capital city, but owing to the short stay there and the number of lectures the preparation is done at the applicant's residence in the study maintained for preparation and research.

8. That statement was confirmed as being factually correct by the applicant's oral evidence before the Tribunal. The applicant's oral evidence also established that the lectures were given on Tuesdays and Wednesdays, mostly four lectures although for a short period six lectures were given. Having arrived in the capital city about 10.30 a.m. on a Tuesday the applicant delivered two lectures at the university from 4p.m. to 6p.m. that evening. He also attended the university on the Wednesday morning to meet students who had any queries, complaints and questions about their course.

9. Around 1 p.m. on the Wednesday the applicant would travel by public transport from the university to the college of advanced education giving lectures from 5p.m. to 7p.m. that evening. The applicant would travel by train to his home on the lectures was undertaken by the applicant at either the university or the college. Examinations papers were marked at his home.

10. The applicant obtained accommodation at an hotel in the city on Tuesday and Wednesday nights although it appears that on some occasions it was only necessary to stay in the city for one night. The hotel charge is moderate at about $20 per night.

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11. It was also established that the applicant spent four nights and sometimes five nights per week in preparation of his lectures. He did not spend daylight hours on such preparation preferring to keep these hours for other purposes. The lecture preparation was carried out at the applicant's home and more specifically his home study where he had access to his extensive library.

12. It was accepted that the applicant was an employee of the university and the college and I so find. It was also accepted by the applicant that his employment did not require him to live 180km from the city. He lived there, in semi-retirement, by his own choice.

13. The essence of the applicant's case is that he was travelling between three places of work. His home was the place at which he performed the essential function of preparation of lectures (his employers making no provision for him to perform this work), the university was one place at which he delivered such lectures and the college the other. In the following extract from his address the applicant makes his position very clear:

``I think the analogy or metaphor, or whatever one likes to call it, is that one manufactures the ammunition, as I do back home, and I fire the cannon in (city); but the important thing is the preparation. That is the major part, I have been lecturing even since 1939, far too long to remember, and as you get on, the actual work of presentation, even to critical students, becomes more and more easy. It is the preparation beforehand that goes into it, and although I still get mildly stirred up and even become distinctly - at my age - distinctly nervous when I present a lecture, as I am nervous this morning, the passage of years has not cured that; but, still, it is a much easier and less arduous position than grinding away at research, taking stock of recent cases, recent developments reported in the Journals, and these are the things which I perform back home.''

14. Although he did not say so in as many words his case is that the essential character of the travel and accommodation expenses is that of outgoings incurred in the course of his employment as a lecturer at the two institutions. The applicant well recognised the difficulties in the precedents but relied on the decision of the High Court in
F.C. of T.v. Finn (1961) 106 C.L.R.60where the Court held that travel and accommodation expenses incurred by an architect, while on leave from his employment, were allowable deductions within the terms of sec.51.

15. The respondent's representative submitted that the outgoings were not incurred in gaining or producing the assessable income and alternatively were outgoing of a private or domestic nature. She referred to the decision of the High Court in
Lunney v. F.C.of T. (1958)100 C.L.R. 478, the decision of the Supreme Court of N.S.W.in
Garden v. F.C. of T. 82 ATC 4060 decisions of Taxation Boards of Review reported as
(1957) 8 T.B.R.D Case H104 and Case R61,
84 ATC 451 a decision of this Tribunal reported as Case U49,
87 ATC 337 and a decision of the Supreme Court of Victoria reported as
F.C of T. v. Charlton 84 ATC 4415. Of these decisions the factual situation in Case R61 is the closest to the facts of the present case expect the travel in that case did not involve overnight absences from home. Case H104 and Case U49 are of little assistance in considering the present case.

16. In a case involving personal travel expenses there are three decisions of the High Court which are directly in point. The applicant relies on Finn's case while the respondent relies on Lunney's case. The third case in point is
F.C. of T.v. Green (1950) 81 C.L.R.313. That case raised a number of issues including deductibility of travel expenses. Mr Green resided in Brisbane with a number of income-producing interests including investments in rent-producing shops in Townsville and Cairns. He travelled to Townsville and Cairns for the purpose, inter alia, of inspecting the shops and claimed the proportion of the travel expenses incurred said to be referable to the shops. The balance of the travel expenses related to essentially private purposes and protection of the reversionary interest of the taxpayer in the properties. In a short judgment the Court held that the travel expenses were incurred in gaining or producing assessable income and therefore allowable. The fact that the taxpayer was travelling from his home in Brisbane (where he had an office) to the places where he derived rental income did not cause any comment from the Court.

17. The decision in Green was consistent with the dissenting reasons of Mr R.R. Gibson

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(Chairman) in the Board of Review decision reported as Case 27,
(1945) 12 C.T.B.R. (O.S.) 259. Although the majority decided against the taxpayer in that case their decision is inconsistent with the later High Court decision and it is in this context that the dicta falling from Mr Gibson in his dissenting reasons is so important:

``19. Where the assessable income is produced or earned by activities carried on by the taxpayer in several places the taxpayer's expenses of travelling from any one to any other of those places for the purpose of engaging in those activities are surely just as much incurred in gaining the assessable income as, and no more of a private nature than, are the expenses directly arising out of those activities. And, in my opinion, it does not matter whether the activities in any of those places do or do not amount to the carrying on of a business: if the taxpayer were a director of two companies carrying on business in different States, or if he were an employee in one place and the proprietor of a business in another, it would still be prima facie necessary for him to go from one State or place to the other for the purpose of gaining or producing his assessable income. Nor, in my opinion, would it be a material circumstance that the taxpayer was living at one of several places in which he was carrying on income-producing activities. In normal circumstances it would be advantageous to the gaining or producing of his assessable income for such a taxpayer to live at one of those places, one obvious advantage being that he would save the expenses, which he would have otherwise incurred, of travelling between his home and that place. This leads me to the view that if a taxpayer lives at a place where his presence is required from time to time for the purpose of engaging in income-producing activities, his expenses of travelling between that and any other place where his presence is required for similar purposes not only are incurred in gaining or producing his income but also should not be held to be of a private nature merely because it suits his private convenience to live where he does or even because the selected place of residence is, for private purposes, the most suitable of the several places at which he carries on income-producing activities.''

18. Mr Gibson's reasons were followed by Taxation Board of Review No. 2 in Case 59,
(1950) 1 T.B.R.D. 218, the Board being of the view that Mr Gibson's reasons had been given judicial sanction by the decision in Green's case.

19. In Case B92,
(1952) 2 T.B.R.D. 431 Taxation Board of Review No. 1 had to consider whether certain expenses incurred by a journalist based in Canberra were allowable. The Board allowed a claim for accommodation but refused (by majority) a claim for entertainment expenses. Mr Gibson (Chairman) would have allowed both claims. He again elucidated the law, this time with the benefit of the High Court's decision in Green's case, as follows at pp. 311-312:

``26.... I consider that the proper test to be applied in determining whether any out-of-pocket expenses of any employee are deductible under sec. 51(1) is expressed by the question: Were the expenses necessary or reasonably necessary for the proper and effective performance by the employee of the services by which he earns the assessable income represented by his remuneration? If the answer is in the affirmative there is no principle that I can find which would justify a decision that the expenses are not outgoings incurred in gaining or producing the employee's assessable income...

27. I base my opinion on the High Court's interpretation of the leading provision of sec. 51(1). The High Court has held that in that provision the words `outgoing incurred in gaining or producing the assessable income' mean outgoings incurred in the course of gaining or producing such income in the sense that they are incidental and relevant to that end, i.e. the gaining or producing of such income. It has also held that to come within those words `it is both sufficient and necessary that the occasion of the outgoing should be found in whatever is productive of the assessable income' (see the cases cited in F.C. of T. v. Green (1950) 81 C.L.R. 313 at p. 317). Reading the word `occasion' in the only one of its widely differing senses which is reasonably relevant, the dictum last cited may be paraphrased to read

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• it is both sufficient and necessary that the incidental or immediate cause of the outgoing should be whatever is productive of the assessable income.

So read, the dictum is readily seen to be (as was said by the High Court) a statement `in brief substance' of what is conveyed by the dictum that an outgoing is an allowable deduction if it is incurred in the course of gaining or producing the assessable income and is incidental and relevant to that end.

28. As was pointed out in Green's case (supra) (C.L.R. at p. 319) the words thus interpreted are applicable not only to the outgoings of a business, but also to the outgoings of an employee or any other person who is not in business. The assessable income of an employee, to the extent that it consists of his remuneration in that capacity, is derived not from his contract of employment, but from the rendering of the services which he is engaged to perform. Hence, where an employee finds that the incurring of certain expenses is necessary, or reasonably necessary, for the proper and effective performance of the services from which he derives his assessable remuneration, there can, I think, be no reasonable grounds for avoiding the conclusions that the incurring of those expenses took place in the course of gaining or producing the assessable income and was incidental and relevant to that end, and that the incidental or immediate cause thereof was the performance of the services which were productive of the assessable income. If (as I hold) those are the proper conclusions, the taxpayer's claim should be upheld. It is not a necessarily material consideration that, when fixing the employee's remuneration, the employer was unaware of, or gave no thought to, the necessity to incur the expenses. There must be many cases in which employers are ignorant of, or indifferent to, expenditure which their employees cannot avoid if they are to perform the services for which they are engaged. I shall content myself by citing the example of the expenses (for rent of workroom, etc.) which are the subject of the taxpayer's remaining claim. The evidence will indicate that the employer was completely ignorant of the incurring of those expenses by the taxpayer; yet it will be shown by the evidence that the taxpayer would have been under a serious disability in the carrying out of his duties if he had not incurred the expenses.''

20. Next in chronological sequence is the decision of the High Court in Lunney v. F.C. of T. (1958) 100 C.L.R. 478 involving a claim for an allowable deduction in respect of fares incurred by an employee in travelling between his home and his place of employment. Dixon C.J. stated the question at issue as follows (p. 485):

``These two cases stated raise a question of income tax law which has been accepted as settled for the last two generations. It is whether the fares paid by ordinary people to enable them to go day by day to their regular place of employment or business and back to their homes are deductible expenses allowable against the assessable income earned by the employment or business.''

21. The Chief Justice then referred to the reasoning of Denning L.J. (as he then was) in
Newsom v. Robertson (1953) 1 Ch. 7. In that case the taxpayer was a barrister with chambers in London and his family residence outside of London where he maintained a professional study with law reports and legal texts. He claimed as a deduction the cost of rail travel between his home and his chambers. The relevant schedule of the Income Tax Act required that the expense be money wholly and exclusively laid out or expended for the purposes of the profession.

22. In argument Romer L.J. (at p. 10) put the question at issue into context with his reported question: ``Having taken a place as your family home can you say that the expenses of travelling between it and your chambers are wholly and exclusively for the purposes of your profession?''.

23. The taxpayer failed in the Court of Appeal because the journeys to and from his home could not be said to be wholly and exclusively for the purpose of his profession.

24. However, Lunney's case was not decided on this basis. The principal judgment was given by Williams, Kitto and Taylor JJ., with Dixon C.J. expressing a somewhat reluctant agreement and McTiernan J. dissenting. In the principal judgment their Honours referred to the by then well-established principle ``for

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expenditure to form an allowable deduction as an outgoing incurred in gaining or producing the assessable income it must be incidental and relevant to that end'' (p. 497). Their Honours went on to say at p. 497:

``... the expression `incidental and relevant' was not used... to formulate an exclusive and exhaustive test for ascertaining the extent of the operation of the section; the words were merely used in stating an attribute without which an item of expenditure cannot be regarded as deductible under the section.''

25. Their Honours referred to the reasons for the decision of the Court in
Ronpibon Tin N.L. and Tongkah Compound N.L. v. F.C. of T. (1949) 78 C.L.R. 47 referring to the dicta in that case as follows:

``The words `incurred in gaining or producing the assessable income' mean in the course of gaining or producing such income (78 C.L.R. 56). Thereafter, it was said: `In brief substance, to come within the initial part of the sub-section it is both sufficient and necessary that the occasion of the loss or outgoing should be found in whatever is productive of the assessable income or, if none be produced, would be expected to produce assessable income' (78 C.L.R. 57).''

And later at pp. 498-499 their Honours said:

``The question whether the fares which were paid by the appellants are deductible under s. 51 should not and, indeed, cannot be solved simply by a process of reasoning which asserts that because expenditure on fares from a taxpayer's residence to his place of employment or place of business is necessary if assessable income is to be derived, such expenditure must be regarded as `incidental and relevant' to the derivation of such income. No doubt both of the propositions involved in this contention may, in a limited sense, be conceded but it by no means follows that, in the words of the section, such expenditure is `incurred in gaining or producing the assessable income' or `necessarily incurred in carrying on a business for the purpose of gaining or producing such income'. It is, of course, beyond question that unless an employee attends at his place of employment he will not derive assessable income and, in one sense, he makes the journey to his place of employment in order that he may earn his income. But to say that expenditure on fares is a prerequisite to the earning of a taxpayer's income is not to say that such expenditure is incurred in or in the course of gaining or producing his income. Whether or not it should be so characterised depends upon considerations which are concerned more with the essential character of the expenditure itself than with the fact that unless it is incurred an employee or a person pursuing a professional practice will not even begin to engage in those activities from which their respective incomes are derived.''

26. After considering the reasons of Denning L.J. in Newsom's case their Honours stated at pp. 500-501:

``In the course of the argument we were referred to a number of cases in which, from time to time, much the same problem has been discussed. It is unnecessary to review these cases but of them we mention
Cook v. Knott (1887) 2 Tax Cas. 246;
Friedson v. Glyn-Thomas (1922) 128 L.T. 24;
Ricketts v. Colquhoun (1925) 1 K.B. 725: (1926) A.C. 1;
Nolder v. Walters (1930) 15 Tax Cas. 380; (1930) 46 T.L.R. 397;
Blackwell v. Mills (1945) 174 L.T. 217, and
Durbidge v. Sanderson (1955) 3 All E.R. 154. No doubt the legislative provisions which required consideration in these cases were not identical with s. 51, but the process of reasoning by which they were decided consistently rejects the notion that expenditure incurred by a taxpayer in order to travel from his home to his place of business is, in any sense, a business expenditure or an expenditure incurred in, or, in the course of, earning assessable income. Indeed they go further and refuse assent to the proposition that such expenditure is, in any relevant sense, incurred for the purpose of earning assessable income and unanimously accept the view that it is properly characterised as a personal or living expense. This view agrees with that which we, ourselves, entertain. Expenditure of this character is not by any process of reasoning a business expense; indeed, it possesses no attribute whatever capable of giving it the colour of a business expense. Nor can it be said to be incurred in

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gaining or producing a taxpayer's assessable income or incurred in carrying on a business for the purpose of gaining or producing his income; at the most, it may be said to be a necessary consequence of living in one place and working in another. And even if it were possible - and we think it is not - to say that its essential purpose is to enable a taxpayer to derive his assessable income there would still be no warrant for saying, in the language of s. 51, that it was `incurred in gaining or producing the assessable income' or `necessarily incurred in carrying on a business for the purpose of gaining or producing such income'. The questions in the cases stated should be answered in the negative.''

27. It is significant that their Honours did not mention Green's case although it was cited to them (100 C.L.R. 483) and extensively referred to by McTiernan J. in his dissenting judgment. Their Honours' reasons must therefore be read in the context that Green's case was not seen as a decision to the contrary but rather a decision on different and distinguishable facts. That must also be the case in respect of the Court's decision in F.C. of T. v. Finn (1961) 106 C.L.R. 60 where the cost of travel between the taxpayer's home and overseas locations, while on leave from his employment, was held to be an allowable deduction.

28. In
F.C. of T. v. Genys 87 ATC 4875, Northrop J. analysed the authorities in this area in some detail. After referring to Lunney's case his Honour said at p. 4878:

``However, the general proposition laid down in Lunney, notwithstanding that it remains good law, is not exhaustive. In Garrett v. F.C. of T. 82 ATC 4060, the Supreme Court of New South Wales constituted by Lusher J. held that it had no application to the following situations:

• (a) where the taxpayer keeps necessary equipment or instruments at his home which he needs for the purpose of performing his work, and by reason of its bulk, such equipment needs to be transported by vehicle from the home to his place or places of work and where the equipment is used at home;
• (b) where the taxpayer incurs expenses for travel between two places of business or work; and
• (c) where the employment can be construed as having commenced at the time of leaving home.

A fourth situation, not enunciated in Garrett, is where the taxpayer travels between home and shifting places of work, i.e. an itinerant occupation.

Before embarking upon a consideration of Lunney and the qualifications thereto outlined above, it is emphasised that neither the decision nor the qualifications are statutory law and should not be construed as though they were the words of an Act of Parliament. The question which this Court is called upon to decide is whether the travelling expenses incurred by the taxpayer are `losses or outgoings' incurred in gaining or producing the assessable income. The various categories referred to above are mere examples of how courts have applied sec. 51(1) in given circumstances. Keeping this in mind, I now turn to consider whether the facts of the present case come within the general principles of Lunney or any of the qualifications thereto.

It is clear that the taxpayer does not come squarely within the principles laid down in Lunney, since hers is not the simple case where there is a sole place of work to which the taxpayer commutes each day from home. However, counsel for the Commissioner argued that the fact that the taxpayer had a number of employments at various hospitals did not make her position inherently different from that of a person with an ordinary term of employment at one place. In order to determine whether this is so, it is necessary to look at the nature of the exceptions to Lunney.

In particular, it is necessary to determine whether, first, the taxpayer could be said to have commenced her employment at her home, with the result that she would be engaged in her duties as an employee during her travel time or, alternatively, whether the taxpayer's occupation could be described as itinerant.

Counsel for the taxpayer argued that because the taxpayer received her work

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instruction from the agency over her home telephone - indeed this was their only method of contacting her - the taxpayer's home doubled as her work base. Hence, when the taxpayer set out in her car to travel to and from a particular hospital, she was travelling between one place of business and another. During the course of the hearing, the Court was referred to several cases where a deduction was permitted for the expenses of travel between home and work. It is not necessary to refer in detail to each of these cases, but three, in particular, are worthy of mention.

First is the case of
Owen v. Pook (1970) A.C. 244, where the taxpayer was permitted a deduction for travelling expenses incurred between his home and work. The taxpayer was in practice as a general medical practitioner and was on stand-by duty at specified times to deal with emergency cases at the hospital. During these periods, he was required to be accessible by telephone. Upon receiving a telephone call, the taxpayer usually gave instructions to the hospital staff as to the treatment to be given to the patient, and then set out for the hospital (although it was not always necessary for him to travel to the hospital). His responsibility for the patient began immediately upon receipt of the call. A majority of the House of Lords held that the taxpayer performed the duties of his office in two places, namely the hospital and the place where he received the telephone call, at which time his duties commenced. Therefore, the travelling expenses were incurred in the performance of his duties and, accordingly, were deductible.

Second is the case of
F.C. of T. v. Ballesty 77 ATC 4181, a decision of the Supreme Court of New South Wales constituted by Waddell J. In that case, the taxpayer was employed as a purchasing officer by a social club and was also a part-time employee professional footballer. The taxpayer claimed a deduction for car expenses in travelling from the social club at the end of his day's work to training and between his residence and matches, whether played on his home ground or on grounds other than his home ground. The taxpayer argued that he was entitled to a deduction because, inter alia, he had with him his football gear which weighed up to 20lb. and also because of temperamental factors (e.g. stress) which necessitated travel by car and not public transport. He argued that he was under a contractual obligation to travel to and from training and matches in a manner which would enable him to perform at his best. Therefore the activity was productive of assessable income. He further submitted that his place of residence was his base of operations and that the cost of travel between his home and matches and training was necessarily an expense incurred in gaining the assessable income.

The Court upheld the taxpayer's claim for a deduction under sec. 51. Waddell J. accepted that it was necessary for the taxpayer to travel by car in order to produce his best form and thereby fulfil the terms of his contract. He also held that the taxpayer had embarked upon the activities by which he earned his assessable income when he left home to travel to a training session or a match and as continuing in those activities on his way home. Hence, his residence could properly be regarded as his base of operations.

Finally, in Collings, which the Tribunal treated as binding on it, the taxpayer was employed as a computer consultant. In addition to her normal duties, the taxpayer was on call 24 hours a day, seven days a week for the duration of a special project involving a major computer conversion operation. It was usual for her to receive telephone calls at her home requesting her advice whenever trouble arose. For this purpose her employer had installed a portable terminal at her house which was connected to the work computer through the telephone line. If the taxpayer could not solve the problem using her portable terminal, she was required to return to the office in order to revive the computer. The taxpayer estimated that she made several extra telephone calls and one additional trip per day, including weekends. The taxpayer sought a deduction for travel expenses between home and work outside her normal daily journey. The Court held that such expenses were incurred in gaining or producing her assessable income and accordingly were deductible. The Court held that the taxpayer had a double work

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location, which was not merely `colourable', but a necessary obligation arising from the special nature of her duties. When the taxpayer set out for the office after her normal hours, she was travelling between one place of work and another, since her duties began at home. The Court made some important observations on Lunney. At pp. 4261-4262 Rath J. said:

• `It seems to me that the proposition that expenses of travel between the taxpayer's residence and his place of work are not allowable deductions under sec. 51 has its basis in a specific viewpoint that such expenses are of a private nature, and not in any compulsion of the words `incurred in gaining or producing the assessable income' or in any of the criteria formulated for applying those words in particular cases. That such expenses are essentially of a private nature has derived from a view that a man's choice of a home in a location different from his work is a decision relating to his private living...
• Thus the question in the present case resolves itself into whether a principle, that appears to (be) grounded in history rather than in reason, should be extended to a case such as the present when a business element is present in the journey from home to work, if not from work to home. I am not concerned with those normal daily journeys that have their sole relation to a person's choice of his place of residence; I am concerned with journeys which begin as a result of performance of the duties of the employment at the taxpayer's home. The journey from home to the office is undertaken, not to commence duty, but to complete an aspect of the employment already under way before the journey commences. The journey home again has not this same character, but it might be looked upon as the completion of a process that began when the taxpayer whilst at home (or perhaps elsewhere, such as a cinema) was called upon to resolve some problem of malfunction of her employer's computer. On the other hand, the taxpayer was free to choose her place of residence (provided, at all events, that it was in Sydney), and to the extent that her expenses of travel reflect her exercise of that choice it is arguable that they are personal living expenses, and that there is no difference in principle between the ordinary and special journeys.'

His Honour referred to the decisions of Owen v. Pook (above) and
Taylor v. Provan (1975) A.C. 194 and stated at p. 4267:

• `Such a rigid view... is no longer tenable following the decisions of the House of Lords in Owen v. Pook and Taylor v. Provan; and it is reasonable to approach the construction of sec. 51(1) in the light of these later cases. Those cases establish that if a man has several places of work, travelling between them constitutes travelling on his work, even if one of the places of work is also his place of residence.'

Hence, the fact that one's residence is one's choice does not prevent the residence being regarded as a place of work. The element of choice is the location of one's residence and except in the simple case of a regular daily journey, does not automatically deny a taxpayer a deduction. To interpret sec. 51(1) of the Tax Act in this manner is to read into it a `preconceived limitation'.''

His Honour was clearly of the view that there was no general rule which denied deductibility for all travel between home and place of employment. Although his Honour did not consider Green and Finn it is clear that he recognised the principle that Lunney's case does not apply where there are facts present which establish that the essential character of the expenditure is not in the nature of private expenditure.

29. As the Tribunal decided in Case T96,
86 ATC 1158, where an employee travels between two places of employment the outgoings incurred in that travel are deductible.

30. The question then is whether the applicant's home is a place of employment. If it is not a place of employment is it sufficient that it is a place of income derivation? The answer to both questions must be in the affirmative. The applicant was engaged by the institutions to provide lectures to students. It was the applicant's evidence, and in any event is

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self-evident, that a professional lecturer, no matter how skilled, must prepare his lectures before he delivers them. A fortiori is this the case where the lecturer is delivering lectures in a discipline which is constantly evolving, as in the present case. (I am constrained by sec. 14ZK of the Taxation Administration Act from being more precise as to the applicant's academic standing and work.) The applicant derived income and performed part of his duties at his home before travelling to the city for the purpose of delivering his lectures. His home was therefore his base of operations from which he travelled to two different locations to deliver the lectures, having commenced his employment at his home when he engaged in the preparation of the lectures.

31. If I be wrong on this point the applicant must still succeed because he travelled between places of income derivation when he travelled between his home and the university, between the university and the college and between the college and his home. On the authority of Green's case such amounts are allowable deductions.

32. I turn now to the question of the accommodation expenses. These expenses were incurred for the purpose of enabling the applicant to deliver the lectures. The evidence is quite clear, no other purpose was suggested. The question of deductibility of accommodation expenses was examined in detail by the Supreme Court of Victoria (Crockett J.) in F.C. of T. v. Charlton 84 ATC 4415. Crockett J. allowed a deduction for the rental on a flat maintained by the taxpayer away from his headquarters. At p. 4421 his Honour found that the taxpayer was required by his employment to work in two cities. The keeping of the flat in the second city was dictated by his income-producing activity and was incidental to his work. His Honour found that the rental on the flat for the relevant period was allowable as a deduction within the terms of subsec. 51(1).

33. The same answer must apply here. The accommodation charge was incurred because the applicant's income-earning activities as a lecturer dictated that the expenditure be incurred - the hotel charges were incurred in the course of gaining the applicant's assessable income from his employments as a lecturer. In these circumstances there is no basis for saying that the outgoings were of a private nature.

34. If this decision is inconsistent with the decision of Taxation Board of Review No. 1 reported as Case R61, 84 ATC 451 then this is to be regretted. However, I am satisfied that the facts of this application are such as to make the outgoings deductible.

35. The objection decision under review will be set aside and the objection allowed in full.