Re Commissioner of Taxation v Robert John Cooper [1991] FCA 164; 91 Atc 4396 21 Atr 1616/99 ALR 703 29 FCR 177 (24 April 1991)


Re Commissioner of Taxation v Robert John Cooper [1991] FCA 164; 91 Atc 4396 21 Atr 1616/99 ALR 703 29 FCR 177 (24 April 1991)





No. G411 of 1990

FED No. 190

Income Tax

[1991] FCA 164; 91 ATC 4396

21 ATR 1616/99 ALR 703

[1991] FCA 164; 29 FCR 177





Lockhart(1), Wilcox(2) and Hill(3) JJ.


Income Tax - Section 51(1) Income Tax Assessment Act - losses or outgoings incurred in gaining or producing assessable income - loss or outgoing of private or domestic nature - professional rugby league player - extra food consumed to maintain weight.

Income Tax Assessment Act: s. 51(1).




Counsel and Solicitors D.H. Bloom QC and B.J. Sullivan

for appellant: instructed by the Australian

Government Solicitor

Counsel and Solicitors R.F. Edmonds instructed by

for respondent: David Brown and Partners


The appeal be allowed.

The respondent, Robert John Cooper, pay the costs of the appellant, Commissioner of Taxation, of the appeal.

The orders made by the Supreme Court be set aside.

The appeal to the Supreme Court by the Commissioner of Taxation be allowed.

Leave be reserved to either party to restore the matter to the list on seven days' notice on the question of costs of the appeal to the Supreme Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


The taxpayer, Robert John Cooper, is a professional footballer who played with the Western District Rugby League Football Club. He claimed as deductions under s. 51(1) of the Income Tax Assessment Act 1936 ("the Act") the expenditure incurred by him for the purchase of additional food and drink which he consumed, on the "instructions" of his coach, in order to maintain an "optimum playing weight" of about 16 stone and thus retain his strength to break the opponents' defensive line in First Grade Rugby League Football. He played with the Club as a forward.

2. The Commissioner of Taxation disallowed the deductions claimed by the taxpayer for the cost of the additional food for the years ended 30 June 1980, 1981 and 1982. The taxpayer objected to the disallowance and the objections were referred to a Taxation Board of Review which allowed the taxpayer's objections. The Commissioner appealed to the Supreme Court of New South Wales. The appeal was heard by Hunt J. who dismissed the appeal. The Commissioner appealed to this Full Court from the Supreme Court's judgment.

3. Hunt J. dismissed the Commissioner's appeal on two grounds. First, his Honour held that the appeal was incompetent because it involved no question of law. His Honour said that no question of law is involved where some principle of law was either necessarily applied by the Board in arriving at its decision or merely implicit or assumed in that position; the question must be one which was involved in the Board's decision and he referred to Boyded (Holdings) Pty Limited v Federal Commissioner of Taxation (1982) 13 ATR 127 at 130. His Honour found that there was no question of law involved in the Board's decision in this case. He said the question whether a particular set of facts comes within the terms of a statutory definition which uses words according to their common understanding is one of fact not of law and referred to Australian Gas Light Co. v Valuer-General (1940) 40 SR(NSW) 126 at 137-8 and Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7-8. His Honour noted a concession in argument that the case involved a question of fact and degree (Federal Commissioner of Taxation v Forsyth [1981] HCA 15; (1981) 148 CLR 203 at 215), that no submission was made to the Board of "no evidence" and that the Board did not rule upon that question expressly or by implication: cf Lombardo v Federal Commissioner of Taxation (1979) 10 ATR 310 at 314.

4. The second ground on which his Honour dismissed the Commissioner's appeal was that the food and drink purchased by the taxpayer was additional to that which he ordinarily consumed; that it was consumed, not to sustain the taxpayer bec...

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