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Is a dependant spouse tax offset allowable under section 159J of the Income Tax Assessment Act 1936 (ITAA 1936) for a taxpayer whose partner is of the same sex?

No. A dependant spouse tax offset is not allowable under section 159J of the ITAA 1936 for a taxpayer whose partner is of the same sex.

The taxpayer has a partner who is of the same sex as the taxpayer.

The taxpayer and their partner live together.

The taxpayer's partner does not derive any income.

The taxpayer financially supports their partner.

Subsection 159J(1) of the ITAA 1936 states that where a taxpayer contributes to the maintenance of a dependant and the dependant is a resident, the taxpayer is entitled to a tax offset.

Subsection 159J(2) of the ITAA 1936 specifies that a dependant includes a taxpayer's spouse.

A spouse is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). The definition states that: 'the spouse of a person includes a person who, although not legally married to the person, lives with the person on a genuine domestic basis as the person's husband or wife.'

There is no requirement in the definition to be legally married according to the laws of Australia or another nation. However the definition states that the person must live with the person on a genuine domestic basis as the person's husband or wife. The term 'husband and wife', is not defined in tax legislation, therefore the ordinary meaning of the term is utilised.

The ordinary meaning of 'husband and wife' was examined in the case Gregory Brown v. Commissioner for Superannuation ( 1995) 38 ALD 344 at page 349; (1995) 21 AAR 378 at page 383 where the Administrative Appeals Tribunal stated: 'For whatever other changes the words "husband" and "wife" may have undergone over the years they retain, in our opinion, their complementary gender connotations. A "wife" is the female partner of a marital relationship and a "husband" the male partner.'

The relationship between the taxpayer and the taxpayer's partner does not fall within the ordinary everyday meaning of a husband and wife because the taxpayer's partner is of the same sex as the taxpayer. The taxpayer's partner does not satisfy the definition of a spouse as defined in section 995-1 of the ITAA 1997 as the taxpayer and the taxpayer's partner are not living on a genuine domestic basis as 'husband and wife'.

Accordingly, the taxpayer is not entitled to a dependent spouse tax offset under section 159J of the ITAA 1936.