87 ATC 868
PM Roach SM
Administrative Appeals Tribunal
Judgment date: 17 July 1987.
P.M. Roach (Senior Member): In this reference the applicant claims a deduction for $900 in relation to the year of income ended 30 June 1984 for expenses incurred in partaking of meals and refreshment while on journeys undertaken in the course of his employment. The applicant married during the first half of the financial year and thereafter resided with his wife. He was employed as a heavy/articulated vehicle driver and worked from his employer's base in Newcastle. Sometimes his duties only required him to work in the general area of Newcastle and on those days, having breakfasted at his home, he would present himself at the depot to commence his duties and at the close of the working day would return home to partake of his evening meal. Whenever possible on those days he would return home for lunch but if that was not practical, he would obtain his lunch at some convenient time and place. No claim arises out of those occasions, probably for the good reason that they differed little from the routine of most Australians who work by day.
2. On other days he was required to take his vehicle to the Sydney area and, sometimes, as far away as Wollongong; and to return the same day. On those occasions his duties would require him to attend to effect deliveries at one or more of several sites within the greater Sydney area; to reload as, where and when, loads were available; and then return to Newcastle. Sometimes initial deliveries would have to be effected at Wollongong and if, as commonly happened, no load was available there, he would reload in Sydney. On those days the vehicle would be laden ready to move on his arrival at the Newcastle depot and on return would be left loaded at the depot with a view to being unloaded next morning. On those days, depending on the likely program for the day, he would arrive at the depot between 3.00 a.m. and 5.30 a.m. and return there at times varying between 5.30 p.m. and 9.00 p.m. Sometimes his working day would extend over 18 hours; and on other rare occasions, might be as short as 12 hours. It is common ground that State traffic regulations made it unlawful for him to drive for more than five consecutive hours without taking at least a 30 minute break. On those days it was his invariable practice to have a snack breakfast at Mt Colah on his southbound journey; to have lunch when and where convenient; and to have an evening meal at or around Berowra if he was likely to return late - something which occurred on about one trip in four. It was agreed at the hearing that breakfasts were consumed on 122 occasions at an average cost of $2.50; luncheons at an average cost of $5.00 on 122 occasions; and evening meals at an average cost of $7.00 on 32 occasions, $224.
3. The applicant was not reimbursed for the cost of meals by his employer and there was nothing in the evidence to suggest that there was anything in any relevant industrial award entitling him to any allowance or indicating that the need to incur expense in the provision of meals was considered to in any way contribute
87 ATC 870
to the determination of his wage or overtime allowances.
4. In the circumstances of the applicant, to succeed with his claim he must establish that the costs incurred in providing the meals eaten "on the road" constituted losses or outgoings "incurred in the course of gaining (his) assessable income"; and that they were not "private" in nature. That is usually difficult to do because, to quote Dr Beck in Case N34,
81 ATC 178 at p. 185, "satisfying the bodily needs for food is always a private act". However, as Rowlatt J. observed in
Nolder v. Walters (1930) 15 T.C. 380 (at p. 388):
"Some offices and employments do involve the duty of travelling. It is not a question of getting to the place of employment, but the employment may be actually to travel, as in the common case of the commercial traveller, and, as some people say, in the case of the Member of Parliament... I think it always has been agreed, that when you get a travelling office, so that travelling expenses are allowed, those travelling expenses do include the extra expense of living which is put upon a man by having to stay at hotels and inns, and such places, rather than stay at home. Of course his board and his lodging in a sense, eating and sleeping, are the necessities of a human being, whether he has an office, or whether he has not and therefore, of course, the cost of his food and lodging is not wholly and exclusively paid out in the performance of his duties, but the extra part of it is."
5. The same view has long been taken in Australia, whether or not described in terms of "a travelling office" and it has not been limited to the extra expense. It has always been recognised that the circumstances of a person's occupation; the nature of his duties; and the circumstances in which he is engaged in and about the performance of those duties can result in the expenses incurred by him in eating and sleeping taking on the character of the activity which occasions the particular expenses to arise. (For example, subject to legislative provision to the contrary, the cost of meals provided in the course of income-earning entertainment were often considered to lose their "private" character.) So it is that when a self-employed businessman travels overseas on business, the costs of his travel from his Australian home to place of work overseas and his costs of accommodation and living expenses while overseas are commonly considered to be deductible. So, too, the expenses of an employee, such as a university research scholar, who similarly incurs expenses in travelling overseas or interstate often will be held to give rise to an entitlement to a deduction, even though private living expenses are involved. Consistently, with that view the allowances received from employers by such persons as receive them to relieve those employees of any financial burden occasioned by the need to travel to perform the duties of their offices are not considered to have derived any amounts such as would increase their taxable income if they have expended the allowance so received in the provision of the accommodation and sustenance for which the allowance was provided.
6. What then is the case of a truck-driver such as the present applicant? He does not travel overseas or even interstate, but that circumstance alone cannot establish the character of his travel. He does not receive any allowance from his employer, but that cannot determine the character of the expenses he bears. (It would be a strange result if he was not entitled to the deduction claimed but the public servant or other person who was engaged to accompany him and who was paid an allowance for doing so should be entitled to a deduction.) He was not away overnight. If this applicant had followed the work patterns most commonly found in this community his working day, measured from the time he arrived at the place appointed for the commencement of his work until he departed from that workplace on completion of the duties of the day, would have extended no more than nine to 12 hours. Further, in those circumstances, unless he followed the practice of those who make their first action at "work" that of having their breakfast, he would only have been absent for a meal in the middle of the day.
7. I also take into account the circumstance that breakfast is ordinarily considered as a meal to be taken before the working day commences, and that it is a meal which the circumstances of employment did not preclude him from having at home. On the other hand, I take into account the abnormal hour at which he would have had to prepare (or have prepared for him) that meal (or snack). As to lunch, his circumstances
87 ATC 871
really do not differ from those of a vast number of persons who are unable to return to their home in the course of the working day. In that regard his circumstances are like to those of the taxi driver in Case H22,
76 ATC 166 who bought meals because he could not go home for them and, by law, was not allowed to eat meals in his cab. On the other hand I take into account that when the working day was to be no less than 12 hours long, it is not unreasonable to delay the first meal of the day for two hours or so, or to have two meals "on the road". Nor is it unreasonable that, when the working day was to stretch out to 18 consecutive hours, a third meal, more substantial than the others, should be had "on the road".
8. All of the foregoing considerations are relevant to an exercise of judgment as to whether the degree of departure from the norm or commonplace is sufficient to displace the finding to be ordinarily made, namely, that meals are "private" in nature; and that the costs of purchasing either "fast-food" or lavish restaurant meals are no less "private", and no more deductible, than the cost of having meals provided in the privacy of one's home.
9. In all the circumstances I think a distinction is to be drawn between "ordinary" days and those days upon which his duties involving travelling would take him away from his home-district for so long as to give rise to a need, or perceived need, for three meals. The latter should be recognised as giving rise to an entitlement. For those days, and those days only, I would allow the deduction claimed.
10. The assessment under review will be varied by reducing the taxable income of the applicant by $464.