In support of their application to be classified as financially dependant on the deceased, the beneficiary stated they relied upon the deceased’s financial support because their other parent was self-employed, with substantial business expenses.

The beneficiary stated they never received any welfare benefits/Centrelink payments and the deceased provided meals, food, shelter, money for lunches, and assistance with transport costs during their university days.

The court also heard the deceased provided the beneficiary with assistance via bank transfers, as well as cash.

The beneficiary provided documentation in the form of handwritten diary entries referring to bank transfers as well as documentation, including the death certificate of the deceased and PAYG payment summary of a superannuation lump sum.

They also tabled a one-page excerpt from an unidentified bank account showing a number of deposits.

However, the court deemed the beneficiary was not a dependant of the deceased just before they died, stating that paragraph 302-195(1)(d) of the ITAA 1997 is not satisfied and, therefore, the beneficiary is not a death benefit dependant.

In its ruling, the court stated that as the beneficiary did not live with the deceased in the period leading up to the deceased’s death, the requirements of paragraph 302-195(c) of the ITAA 1997 (interdependency relationship) cannot be satisfied.

“Therefore, it is necessary to consider paragraph 302-195(1)(d) of the ITAA 1997 – whether the beneficiary was a ‘dependant’ of the deceased just before they died,” it said.

“The definition of death benefits dependant does not stipulate the nature or degree of dependency required to be a dependant of the deceased person in paragraph 302-195(1)(d) of the ITAA 1997. However, it is generally accepted that this paragraph refers to financial dependence.”

It continued that there are a number of case law decisions that specify what is required to establish financial dependency.

“Specifically, the definition of dependency was addressed and interpreted in the High Court case of Kauri Timber Co (Tasmania) Pty Ltd v Reeman (1973) 47 ALIR 184 in which the court stated that ‘the principle underlying these authorities is that it is the actual fact of dependence or reliance on the earnings of another for support that is the test’,” it said.

Additionally, in Edwards v Postsuper Pty Ltd [2007] FCAFC 83, a full bench of the Federal Court agreed with the tribunal that while the deceased provided many gifts to their family, it did not consider that would make the appellants and their family financially dependant on the deceased.

In this PBR, the court said that although the beneficiary advised that much of the financial assistance provided by the deceased was in the form of cash, there is little evidence of this that can be provided.

“No evidence has been provided to show that the deceased provided financial support to assist the beneficiary to meet normal living expenses such as groceries, mortgage/rent, transportation costs, utility bills, medical expenses,” it said.

“The commissioner cannot be satisfied that the beneficiary was a person who was wholly or substantially reliant on regular and continuous financial support from the deceased for their ordinary living expenses.”