A recent court decision, and subsequent appeal, has ramifications for taxpayers with disabilities, and who are in need of a personal carer. The decision centres around what is or is not acceptable as a tax deduction in relation to the costs that arise with regard to that carer under certain conditions.

The circumstances of the taxpayer concerned in the case are particularly relevant, so a brief run-down of the facts will be instructional.

The taxpayer was invited to speak at two work-related conferences in Britain, with the costs of his travel expenses covered by his employer, with his and his wife’s accommodation costs as well as other out-of-pocket expenses covered by the conference organisers.

The taxpayer suffers from medical conditions that mean he is unable to walk any distance without assistance and cannot stand for any length of time. As a consequence, he needs a carer not only to assist him with standing and walking but to use the toilet, shower and bathe and dress.

His employer was aware of his disabilities but did not provide him with a carer or assistant to travel with him, and none of the employer’s other staff members were going to this particular conference.

The taxpayer’s wife accompanied him and acted as his carer both on the flights to and from Britain and during their time there. She helped him to dress, assisted with his personal hygiene, showering and toilet needs and supported him when he was walking and standing.

Her assistance was necessary to enable him to travel to, and attend, both conferences. In addition to these, the taxpayer attended a series of meetings related to the duties of his employment. His wife did not perform any tasks relating to his work duties, was not employed by his employer, and did not receive any payment for the assistance that she gave.

When the taxpayer consequently lodged his next return, he made a claim for his wife’s airfares, which the ATO disallowed, saying that its decision was due to the expenses being of a private or domestic nature. The taxpayer submitted that denying him the deduction constituted discrimination due to his disabilities.

Therefore, two key issues arose. The decisions regarding these two issues ended up in the Administrative Appeals Tribunal (AAT), which is where the case headed after the initial court decision was handed down. They are:

• whether the travel expenses the taxpayer incurred in relation to his spouse should have been allowed as a tax deduction, and
• is denying the deduction contrary to disability discrimination laws.

Deductibility

As has been noted above, the ATO denied the claim for carer costs as the role was private or domestic in nature, and the carer was not engaged by the taxpayer’s employer. In regard to the deductibility of costs incurred in circumstances where a disabled taxpayer engages an assistant, the AAT held that this all depends on the nature of the assistant’s tasks.

The subsequent decision handed down was that if the tasks are directly associated with the disabled taxpayer’s work, the expense is deductible. A typical example is someone engaged by the taxpayer as an administrative assistant, who undertakes tasks such as typing, taking dictation, retrieving, moving and opening files, and photocopying documents. These tasks are carried out so that the disabled taxpayer can perform his employment duties, and are in the course of the taxpayer undertaking duties that are characterised as being incurred in the course of gaining or producing assessable income.

However the AAT also determined that if the tasks are not directly associated with the disabled taxpayer’s work, the expense is not deductible. A typical example is a taxpayer who hires someone to assist him with his personal needs, such as standing and walking, using the toilet, showering and bathing and dressing. Such expenses are incurred in the course of enabling the taxpayer to undertake duties that are characterised as having a private or domestic nature.

The tribunal also made some pertinent comments on a section of the relevant legislation that imposes a blanket prohibition on making claims for costs incurred by a relative of a taxpayer who accompanies them on work-related travel.

Unless the relative performed substantial duties in the role of either staff of the taxpayer’s employer or as the taxpayer’s own employee, it would be reasonable to conclude that they would have accompanied the taxpayer irregardless of their personal relationship. It found that there is no room in the legislation to read an exception to the blanket prohibition if the relative is tagging along as carer unless they are being employed as such.

Discrimination

For the discrimination aspect of the case, the AAT concluded that the ATO’s decision to deny the deduction was not discriminatory under the disability discrimination laws. It stated that the ATO conclusion would have been the same if the taxpayer did not have disabilities that required him to be accompanied by a carer.