Wangaratta Woollen Mills Ltd. v. Federal Commissioner of Taxation.

Judges:
McTiernan J

Court:
High Court

Judgment date: Judgment handed down 4 September 1969.

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McTiernan J.: This is an appeal by the taxpayer Wangaratta Woollen Mills Limited against an assessment issued to the appellant in respect of income derived during the year of income ending on the 31 May 1968. The appellant pursuant to sec. 187(b) of the Income Tax Assessment Act 1936-1968 requested that its objection be treated as an appeal and it is in this form that the case came before this Court.

The first ground of objection on which the appellant relied in this Court was that a deduction for depreciation was allowable under the provisions of sec. 54 of the Act on certain parts of buildings and equipment in that they were items of plant which are owned and used by the company in carrying on a business for the gaining or production of assessable income. The items in question constituted what counsel for the Commissioner

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ATC 4097

called the ``basic building structure'' of a new dyehouse built by the appellant during the year of income ending 31 May 1961 and extended during the years of income ending 31 May 1968.

The second ground of objection upon which the appellant relied in this Court was that a deduction under the provisions of sec. 62AA of the Act was allowable in respect of the dyehouse extension, a pit with drain channels and grills, demountable walls, pistons and springs for sliver cans, and modifications to what is known as a Fulscope controller, as being units of plant purchased new and used in the year of income in the process of manufacture.

The Commissioner conceded before the hearing commenced that an investment allowance under sec. 62AA was available on the following items: twisting tubes, fibre bobbins, roving bobbins, sliver cans, pistons and springs with which new sliver cans were purchased, and drafters. During the proceedings counsel for the Commissioner stated that he would address no argument against the appellant's contention that an investment allowance was available in respect of an extension of a monorail overhead crane and hoist.

On the application of the taxpayer and with the consent of the respondent a view was made of the taxpayer's premises at Wangaratta. The evidence discloses the following facts. The appellant conducts the business of dyeing and spinning worsted yarn, which is then sold to knitting mills. The raw materials used in the business are either wool tops or synthetic fibre. Wool tops are long slivers or ribbons of wool which has been scoured, carded and combed. The process which constitutes the dyeing portion of the appellant's business is as follows. The raw materials are unpacked and placed upon special racks which are then inserted into the dyeing vats, which usually already contain a hot liquid. Operatives then, at appointed times, bring up chemicals in plastic buckets from the preparation room and tip the chemicals into the vats. When the dyeing is completed the racks are lifted out of the vats by an overhead crane and placed down beside the vats to drain. The material is then dried with the aid of mechanical dryers.

The designing of a building suitable for conducting this process entails consideration of several unusual factors.

A ventilation system was required to remove vapour from the building. The high temperatures of the liquids in the vats resulted in clouds of steam being given off whenever a vat was opened, either to tip in chemicals or test the liquid during dyeing, or to insert or take out the racks. In winter the atmosphere would, without adequate ventilation, become so clouded that work would become dangerous. Gases were sometimes given off from the liquids, most notably chlorine which is used in bleaching. This is poisonous.

An associated problem was condensation. If any of the steamy vapours from one vat were to drift down the building and drop on to materials of a different colour or even into other vats, those other materials could be spoilt. All the exposed surfaces of the ceiling had to be coated with a substance which would not react with the chemical vapours. In the previous dyehouse condensates had reacted with unprotected metal to form chemical compounds which dropped on to material and formed small spots which could ruin a whole batch of material.

Insulation of the building would assist in the maintenance of a constant temperature. Heaters could also assist in cold weather.

Corrosion was a factor which had to be considered in relation to all internal surfaces. Overhead corrosion has been mentioned. All other parts of the building and fittings would very quickly corrode unless protected. This was especially so of the floor. Liquid splashed from vats or drained from drying racks greatly increased the problem around the vats. The whole drainage system required special treatment because of the corrosive nature of many of the liquids used.

Drainage and positioning of the vats was another factor. Large volumes of very hot corrosive liquid had to be quickly removed. Pools of liquid around the vats would constitute a hazard to the operatives as they moved around the vats. The surface should be safe to walk on, and each vat so positioned that the top was at the safest possible level for the attendants.

The result of the architects' endeavours is a building which both parties agree skilfully fulfils the appellant's requirements. The building is now after the extensions approximately 200 ft. long and 60 ft. wide, the long axis facing east and west. On the north it abuts another building of the plaintiffs, on the south there is a low auxiliary building

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ATC 4098

which houses stores, offices and laboratory. That structure is of no concern in this case.

The floor of the dyehouse is in three parts across its width. In the centre is a twenty-foot concrete strip running the length of the building. This area is used for drying, preparation, movement of trolleys and storing raw materials. There are signs of corrosion and the company is experimenting with an epoxy application. On either side of this strip all floor surfaces are tiled with Vitrolex brand acid-proof tiles which have a non-skid surface. Pits and drains are covered with gratings. The general pattern is that on either side of the centre concrete strip the floor slopes towards the centre of that side, along which runs a drain approximately 2½ ft. deep covered with a grating. The drain is lined with acid-proof bricks. At intervals there are large pits approximately 1½ ft. deep in which are set dye vats, the tops of which are slightly above waist height. The pit is lined with a ceramic acid-proof tile. Beside each vat is a stand on which the rack of material is placed for draining after it is taken out of the vat.

There are two departures from this standard pattern. The last 75 ft. at the eastern end of the north side contains at present no vats, but houses a drying machine. The last 92 ft. at the western end of the south side is comprised of a pit 8 ft. deep lined with acid-proof brickwork. In this pit are set the pressure dying vats in such a way that the top of the vat is at an accessible height and the bottom of the vat has sufficient clearance from the pit floor to enable it to be easily maintained and the pipes to it to be connected. The greater depth of this pit required a pier and beam construction to stabilise its side walls. Liquids in this pit have to be pumped to a higher level for removal.

The eastern and western walls are mere walls to prevent the entry of the elements, with louvre windows for light and some ventilation. The side walls on the north and south are of special construction. The walls do not support either the roof or the ceiling. Except for the 75 ft. section at the east end of the northern wall, the side walls have a 9 inch cavity. The window opening on the outside wall does not correspond with the opening on the internal wall, which is just above head height. Movement of air is regulated by controls attached to the louvres on the external openings. Powerful heaters are fixed to the internal walls. The external walls carry ducts in which run the service pipes for purified and town water, compressed air, steam and electricity.

The lower part of the internal walls are coated with an acid-resistant glaze named Emulax. The remaining wall surface is painted with a special preparation named Seculate which to a degree absorbs moisture in a steamy atmosphere and later yields it as the atmosphere becomes drier. This coating was likened to blotting paper. Thus condensation and dripping is somewhat avoided.

The roof is supported by steel pillars at intervals along the sides of the dyehouse. These are joined to steel trusses which carry the weight of the external roof, the ducts and cowlings in the roof, the internal ceiling, and a monorail suspended from the trusses, along which runs a crane of 5 ton capacity.

The external roof is a normal gable roof except that on each side at 16 ft. intervals cowlings are installed through which a draught is created by large electric fans within the cowling. The cowling and fan with its motor weighs approximately 5 cwt. It is not disputed that the cowling fan and motor are plant.

The ceiling is of very special construction. It is divided along the long centre axis, and each half is again divided, rising along its centre axis to an apex, the whole ceiling thus appearing as a double gable which forms in cross section a flattened inverted ``W''. Each half ceiling is intersected at right angles to the long axis at 16 ft. intervals by the trusses which are clad in the same way as the rest of the ceiling. This forms in effect a series of what were referred to as kitchen canopies on each side of the building. Halfway along the apex of each canopy is the duct opening through which the exhaust of air takes place. Suspended below the apex is a baffle or shallow gutter in which is caught any condensed liquid which might drop from the apex or from the duct when hot vapour condenses upon meeting the cold external metal. This condensed liquid is piped away into the wall cavity at each point at which the baffle meets the lining of the truss.

The ceiling itself is made of a timber frame on which is fixed tempered Masonite, the joints being sealed with fibreglass tape. On the upper side the Masonite is insulated with fibreglass. On the lower side the Masonite is coated with the same Seculate absorbent coating used on the upper portion

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ATC 4099

of the walls. The object of this coating is to prevent drops of condensate forming on the ceiling and dripping into vats or on to materials.

The flow of air in the ventilation system is as follows. Air enters the external wall openings, travels down through the cavity in the wall and emerges just above the heads of the operatives. It immediately rises towards the nearest canopy and is sucked out of the building through the cowling. The draught is created by the fans in the cowlings. The inflow of air is regulated by the controls on the external louvres. In cold weather the air is heated as soon as it enters by the heaters attached to the walls. This is done because, as I understand, more vapour can be carried by air at a higher temperature. The air emerges just above head height in order to catch the moisture and gases arising from the vats before they are able to spread to other vat areas. The canopies would be more efficient if lower, but that would prevent the use of the monorail crane which must have sufficient overhead clearance to enable the rack on which the material is placed for insertion in the vat, and which is as deep as the vat itself, to be swung clear of the vat when the process is completed.

When the vapour reaches the canopy, part is temporarily absorbed by the Seculate coating whilst most of the remainder will condense in the duct and fall back into the baffle to be piped away.

Liquid enters the drains in one of two ways. Liquid from splashes or overflows and liquid from draining and drying material drops on to the floor and runs down into the drains. The vats are emptied by a simple externally controlled plug directly into the drains. Many of these liquids are very hot and corrosive. The hot liquids also give off vapours which would add to the humidity of the atmosphere. It is essential therefore that these waste liquids be removed as soon as possible. This is done by pumping from a central point into an external open drain which runs into a settling pond where the liquid cools and is, if necessary, neutralised. This external drain is not coated with an acid-resistant substance, and photographs produced clearly show the serious effects of corrosion.

Section 54(1) of the Income Tax Assessment Act 1936-1968 is as follows:

``Depreciation during the year of income of any property, being plant, or articles owned by a taxpayer and used by him during that year for the purpose of producing assessable income, and of any property being plant or articles owned by the taxpayer which has been installed ready for use for that purpose and is during that year held in reserve by him shall, subject to this Act, be an allowable deduction.''

Subsection (2) of sec. 54 specifically refers to certain items as being plant but none of these is relevant in this case.

The first question for decision is therefore whether the ``basic building structure'' is plant or articles owned by the taxpayer and used by him during that year for the purpose of producing assessable income, or, if it does not all fall within this definition, whether parts of the building do fall within the description. ``Flant'' is defined in the Oxford Dictionary as ``the fixtures, implements, machinery, and apparatus used in carrying on any industrial process''. It must be noted that in sec. 53 of the Income Tax Assessment Act 1936-1967 a narrower meaning is necessary because of the presence of the accompanying words, ``premises... machinery, implements, utensils, rolling stock, or articles''. In sec. 54 however the words are merely ``plant or articles used''.

Previous judicial definitions of the word must also be examined in the context of the relevant instrument. The standard dictum of Lindley L.J. in
Yarmouth v. France (1887) 19 Q.B.D. 647, at p. 658, must be examined with the relevant provision sec. 1(1) of the Employers' Liability Act 1880 (43 and 44 Vict. c. 42) where ``plant'' occurs in a list with ``ways'', ``works'' and ``machinery''. In
J. Lyons & Co. Ltd. v. A.-G. (1944) 1 Ch. 281, the War Damage Act 1943, sec. 103, which Uthwatt J. was considering, made plant the subject of a separate provision (sec. 103(5)) from ``buildings or works''. His Lordship's statement at pp. 286-7 that plant does not include ``the place in which the business is carried on'' must be seen in this light. It is important to realise that in the English Income Tax Act 1952, ``plant'' in the context of ``machinery or plant for the purposes of the trade'' in sec. 279 and 280 is placed in a separate chapter (c. 11 of Part X) from ``industrial buildings and structures'' (c. 1 of Part X). In this light, the distinction drawn in
Jarrold v. John Good & Sons Ltd. (1963) 1 W.L.R. 214

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ATC 4100

between ``setting'' and ``plant'' and the words of Ormerod L.J., at p. 221-``It is clear, I think, that the word `plant' does not include the walls of the building in which the trade is being carried on''-can be understood. It should also be noted that
Margrett (H.M. Inspector of Taxes) v. Lowestoft Water & Gas Co. (1935) 19 T.C. 481 was disapproved in the recent case of
I.R. Commrs. v. Barclay Curle & Co., Ltd. (1969) 1 All E.R. 732.

The recent case of British Oxygen Co. Ltd. v. Board of Trade (1969) 1 Ch. 57 affords an excellent example of the necessity of examining the word ``plant'' in its context. In sec. 13 of the Industrial Development Act 1966 which was there in issue ``machinery or plant'' was defined specifically to exclude inter alia a computer.

Jordan C.J. in
Australian Gas Light Co. v. Valuer-General (1940) 40 S.R. 126(N.S.W.), at pp. 139-141, aptly summed up the situation in relation to the Valuation of Land Act 1916:

```Plant' is a very general expression which in certain contexts may be capable of including permanently fixed things such as buildings, but is evidently used in a more restricted sense in its present context.''

Taylor J. in
Quarries Ltd. v. F.C. of T. (1961) 106 C.L.R. 310, at pp. 315, 316, discussing the meaning of ``plant or articles'' in sec. 54 reviewed the English cases and said-

``But valuable as such cases may be as a general guide when considering the question of what may and what may not be regarded as plant in any particular case they demonstrate the impossibility of formulating any precise rule by the application of which the problem may always be readily solved.''

Referring to the statement of Lindley L.J. in Yarmouth v. France his Honour said-

``... the statement is, understandably, in general terms and is not of a great deal of assistance in solving the present case. Here we are concerned with the expression, `plant or articles' and the section requires that they must have been used for the purpose of producing assessable income. The composite expression must, I think, be taken to have a somewhat wider connotation than `plant' when used by itself and there can be no reason for supposing that such a result was not intended. The section is designed, with reason, to provide for depreciation allowances with respect to equipment, if I may use a neutral word, used for the specified purpose and it would be anomalous if such allowances should be available in the case of equipment which is thought to be strictly comprehended by the expression `plant' but not in the case of other equipment notwithstanding the fact that it is used for precisely the same purpose.''

In
Moreton Central Sugar Mill Ltd. v. F.C. of T. (1967) 116 C.L.R. 151, at p. 157, Kitto J. held that a pit for servicing a locomotive could not be ``plant'' for the purposes of sec. 62AA of the Act and said-

``All I need say is that the word has never, I think, been held, and should not now be held, to include a structure built into the ground so as to form a static and permanent feature of the place in which a business may be carried on and having no other function than to provide a convenient stand for the performing of work in the business.''

In
Broken Hill Pty. Co. Ltd. v. F.C. of T. (1967-68) 41 A.L.J.R. 377, at p. 381, Kitto J. said that the word plant as used in sec. 122(1) of the Income Tax Assessment Act ``includes every chattel or fixture which is kept for use in the carrying on of the mining operations, not being (in the case of a building) merely in the nature of a general setting in which a part of those operations are carried on''. His Honour also said-

``I am of opinion that most of the structures that the appellant has erected on sites set free by demolitions are in the nature of plant. I do not exclude buildings simply because they are places where operations are carried on. I do exclude those which merely provide shelter for persons as they work and for their equipment, e.g., offices; the prefabricated rigid-frame building which houses the new pipe shop, the construction store, the blacksmith's store, and the painter's and lubrication engineers' workshop; the change houses and the works canteen; but I regard as plant the buildings which are more than convenient housing for working equipment and (considered as a whole, i.e., without treating as separate subjects for consideration the iron roofing and cladding of buildings where the main

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ATC 4101

structural members are specially adapted to the needs of the processes to be carried on inside) play a part themselves in the manufacturing processes, e.g., the holding bay for the basic oxygen steelmaking installation as well as the very specialised building which because of its in-built equipment forms part of that installation, and also the casting pit (but not the slag pit).''

The House of Lords in
I.R. Commrs. v. Barclay Curle & Co., Ltd. (1969) 1 All E.R. 732, at pp. 740, 746, 751-2, have reached a very similar conclusion in relation to the word ``plant'' in sec. 276 of the Income Tax Act 1952. Lord Donovan, at p. 752, regarded the dry dock there in question to be ``plant'' because it was ``in the nature of a tool of the taxpayers company's trade''. Lord Reid and Lord Hodson reached similar conclusions. Lord Reid, at p. 740, said-

``I do not say that every structure which fulfils the function of plant must be regarded as plant, but I think that one would have to find some good reason for excluding such a structure. And I do not think that mere size is sufficient.''

I am of opinion that the plaintiff's dyehouse is ``in the nature of a tool'' in the trade and does ``play a part'' itself in the manufacturing process. It is much more than a convenient setting for the plaintiff's operations. It is an essential part of the efficient and economic operation of the plaintiff's business. The complex ventilation system including the cavity wall does more than merely clear the atmosphere. Its structure is an active tool in preventing spoiling of material, and in enabling the operatives to carry out their tasks. It would be completely unnecessary in almost every other industry and quite useless to any buyer except a dyer. The protective coatings and tiling are essential in preserving the whole ``tool''. It is as unreal to dissect the paint or tile from its foundation as it is to separate the paint from a workman's tool of trade. The drains do not just remove waste liquids, they remove volatile liquids which would disrupt the process as much as vapours escaping from the vats. If boiling liquids were left uncovered in the building, in vats or drains the whole process would quickly become unworkable. I think therefore that the dyehouse should be regarded as a single unit of plant and not a collection of bricks mortar, paint, timber etc. each of which is to be separately examined. It is not merely a special factory; it is a complex whole in which every piece is essential for the efficient operation of the whole, I would however except from the description of ``plant'' what might be referred to as the external ``cladding'' of the dyehouse, that is the external walls including the single walls at the east and west ends and the roof as distinct from the ceiling, but not the controlled louvres or the cowlings in the roof. The cladding really does nothing more than exclude the elements and whilst I am not convinced of the validity of this distinction nevertheless it is clearly supported by prior decisions on this sort of question.

I am therefore of opinion that all the items claimed and disallowed for depreciation allowance under sec. 54 should be considered as plant or articles used by the taxpayer for the purpose of producing assessable income, except for such a proportion of the item headed ``new dyehouse'' as relates to the external walls and the external roof as specified above.

The relevant parts of sec. 62AA of the Income Tax Assessment Act 1936-1968 are as follows-

``(1)...

`goods' includes-

• (a) liquids, gases and substances; and
• (b) ships and aircraft;

`manufactured goods' includes goods manufactured for the purpose of use as parts or materials in the manufacture of other goods;

`manufacturing plant' means a unit of property in relation to which this section applies;

...

`new' means not having previously been either used by any person or acquired or held by any person for use by that person.

(2) Subject to the next succeeding sub-section, this section applies in relation to any property being plant or articles owned by the taxpayer that is for use by the taxpayer primarily and principally, and directly-

• (a) in any part of the operations by means of which-
  • (i) manufactured goods are derived from other goods (including other

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    ATC 4102

    manufactured goods) by the taxpayer or by persons on whose behalf the taxpayer performs services involving the use of that property...

...

(5) Subject to this section, where the taxpayer has incurred expenditure of a capital nature on new manufacturing plant for use by him in Australia for the purpose of producing assessable income, there shall be allowed as a deduction from his assessable income of the first year of income during which that manufacturing plant is either used, as manufacturing plant, for the purpose of producing assessable income or installed ready for use, as manufacturing plant, for that purpose and held in reserve an amount equal to one-fifth of that expenditure.''

The items in dispute under this section include the whole dyehouse extension and the item referred to as ``integral plant'' consisting of excavation and concrete lining of a vat pit, acid proof bricks for lining this pit and drain channels, acid proof tiles in, and Vitralex tiles around, the pit and grills with which to cover drain channels and pits. Other items in dispute are 92 ft. of demountable segregation walls in the twisting room extension and some sliver can pistons and springs with which no sliver cans were bought (both of these items being in the spinning division of the appellant's business), and modifications to a Fulscope controller.

For the dyehouse extension and ``integral plant'' items to attract the provisions of sub-sec. (5) of sec. 62AA the items must first be ``new manufacturing plant''. ``New'' as defined creates no difficulties. The definition of ``manufacturing plant'' in sub-sec. (1) refers one to sub-sec. (2) to discover whether ``the unit of property'' is one to which the section applies. To do so it must be ``plant or articles... for use by the taxpayer primarily and principally, and directly-(a) in any part of the operations by means of which-(i) manufactured goods (which includes goods manufactured for the purpose of use as parts or materials in the manufacture of other goods) are derived from other goods... by the taxpayer''.

There is no dispute that the items took their place in the appellant's works which were used in the year of income for producing assessable income.

I am of opinion that the ``integral plant'' items should be taken together to form an item of plant, that is a vat pit with drains complete with lining, brickwork tiling and gratings. For the reasons given above in reference to sec. 54 I consider the new dyehouse extension with the exceptions noted above and also the vat pit to be plant used by the taxpayer for the production of assessable income, and there can be no doubt that they are used primarily and principally and directly in an operation, namely dyeing, by means of which manufactured goods as defined, namely dyed wool tops or synthetic tow, are derived from other goods namely the undyed wool tops or tow. I do not think that to say that dyed wool tops have been manufactured is to strain the language of the section. Manufacture connotes the simplest operations upon a raw material, and it matters not that the taxpayer conducts a further operation upon the product before it is sold. Dyeing is quite a separate industry from spinning and is often conducted separately. The next item is the demountable walls. These are movable panels extending from floor to ceiling in the twisting room which is not part of the dyehouse. Each panel has in it a window section of fine gauze wire to allow air to circulate without permitting fibre particles in the air to drift into areas in which a different coloured fibre is being spun, and thereby possibly spoiling it. This problem is similar to that of the vapours moving down the dyehouse. I have no doubt that these wall panels are manufacturing plant. They are movable and have been moved. They are used primarily and principally and directly in a part of the operations, namely twisting, by which (which does not mean by which alone) manufactured goods namely worsted yarn is derived from other goods namely dyed wool tops or tow. These panels are much more obviously plant than the panels in Jarrold v. John Good & Sons because they actually act as shields between different operations, rather than being passive dividers.

The Commissioner objected to allowing sliver can pistons and springs which were in excess of the number of sliver cans purchased.

A sliver can is a metal or plastic cylinder approximately 3 ft. high closed at the bottom. A spiral spring fits into the can, and a flat platform known as the piston fits on the top of the spring. A roll of sliver is placed

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ATC 4103

on the piston in the can. The tension of the spring is so adjusted that as the sliver is wound off the roll into the spinning machine the spring pushes the rest of the roll upwards so that the top of the roll is always at the level of the top of the can and the sliver as it unrolls is not rubbed against the edge of the can. Counsel for the Commissioner submitted that a sliver can with piston and spring is a ``unit of property'' to which the words ``manufacturing plant'' in sub-sec. (1) apply. He said that a piston and spring without the can were in the nature of spare parts for the ``unit of property'', and that it was the policy of the section to encourage manufacturers to buy new plant, rather than to patch up the old.

In my opinion it is not necessary to embark upon this consideration of policy. Sliver cans are used in the spinning factory for other purposes besides use with spring and piston to hold a sliver. For example they are commonly used to hold fibre bobbins on removal from the machine. I therefore regard the can as one unit of property, and the spring and piston as another, as an additional attachment to enable the can to be used for a more specialised purpose. It is true that the spring and piston cannot be used without the can, but the same could be said of any attachment for a tractor such as a mower or post hole digger operated from a power take off.

The final item is the modifications to the Fulscope controller. This was an electrical device which enabled the temperature of the liquid in the vats to be raised at a set rate in degrees per minute and the maximum temperature to be set. The modification in question enabled the device to regulate cooling as well as heating. The modification consisted of the addition of several small pieces of electrical equipment to the controller which would have involved a considerable amount of workmanship. I am of opinion that the modifications cannot be regarded as a unit of property, nor can the collection of bits of wire, switches, lights etc. be separately so regarded. The expenditure was on a modification to an existing unit of property, the Fulscope controller, not an addition. The fact that a proportion of the expenditure is for workmanship and not even additional articles compels me to find that this item of expenditure cannot be the subject of a deduction under sec. 62AA. It is anomalous that if a separate cooling controller had been installed a deduction would have been allowed. A modification appears to fall between capital expenditure and repairs, and to attract the deductions of neither.

Section 199(1) applies to these proceedings.

The words of the subsection are as follows-

``(1) The Court hearing the appeal may make such order as it thinks fit, and may by such order confirm, reduce, increase or vary the assessment. The costs of the appeal shall be in the discretion of the Court.''

The Court was not asked to work out in figures the results of the decision which it would reach in this matter but it is clear that having regard to my findings the assessment should be reduced by the allowances of deductions which the Commissioner was apparently of opinion should be denied.

The order which I think fit to make is that the assessment be remitted to the Commissioner to be varied in accordance with the findings which I have reached.

As the taxpayer has substantially succeeded in the appeal I would in the exercise of my discretion order that the costs of the appeal be paid as to three-quarters by the respondent and as to one-quarter by the appellant taxpayer.

ORDER:

It is ordered that the assessment be remitted to the Commissioner in order to be amended in accordance with this judgment and that the respondent pay three-fourths of the costs of the proceedings.