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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McGarry Inspector of Taxes v. Harding (Lord Edward Street) Properties Ltd. [2004] IEHC 131 (27 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/131.html Cite as: [2004] IEHC 131 |
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RECORD NO. 2003/112R
BETWEEN/
APPELLANT
RESPONDENT
Judgment of Miss Justice Laffoy delivered on 27th July, 2004.
The Proceedings.
This is a case stated by Her Honour Judge Lindsay of the Circuit Court pursuant to ss. 941 and 943 of the Taxes Consolidation Act, 1997 upon a request of the appellant.
The case stated arose out of an appeal by way of re-hearing in relation to assessments to corporation tax made on the respondent, which is the owner of the premises known as Kinlay House, which is situate at Lord Edward Street and Copper Alley in the City of Dublin. The respondent claimed for four accounting periods industrial building allowance, which is a capital allowance, in respect of expenditure amounting to IR£627,660.00 incurred on the refurbishment of Kinlay House in the year ending 30th September, 1988.
The single issue for determination by the learned Circuit Court judge was whether Kinlay House was a building or structure in use for the purposes of the trade of hotel-keeping within s. 255(1)(d) of the Income Tax Act, 1967 (the Act of 1967), which provision is now contained in s. 268 of the Taxes Consolidation Act, 1997. She determined that it was. The question on which the opinion of this Court is sought on the case stated is whether, on the facts as found, she was correct in law in so determining.
Relevant Legislation
Section 255 of the Act of 1967 was contained in Chapter II, which was headed: "Industrial buildings and structures: industrial building allowance". The first provision contained in Chapter II, s. 254, as amended, provided as follows in sub-s. (1)(a):
"Subject to the provisions of this Act, where a person incurs capital expenditure on the construction of a building or structure which is to be an industrial building or structure occupied for the purposes of a trade carried on either by him or by such a lessee as is mentioned in paragraph (b) there shall be made to the person who incurred the expenditure, for the appropriate chargeable period, an allowance (in this Chapter referred to as an industrial building allowance) equal to one-tenth thereof."
The expression "industrial building or structure" was defined in s. 255 of the Act of 1967. Sub-section (1) of that section, as originally enacted, provided as follows:
"In this Chapter industrial building or structure means a building or structure in use –
(a) for the purposes of a trade carried on in a mill, factory or other similar premises, or
(b) for the purposes of a dock undertaking, or
(c) for the purposes of growing fruit, vegetables or other produce in the course of a trade of market gardening within the meaning of section 54, or
(d) for the purposes of the trade of hotel-keeping."
Sub-section (1) contained a proviso, which, as amended by the Finance Act, 1969, was in the following terms:
"Provided that a building or structure in use as a holiday camp or a building or structure in use as a holiday cottage and comprised in premises registered in any register of holiday cottages established by Bord Faílte Éireann under the provisions of any Act of the Oireachtas passed after the passing of the Finance Act, 1969 shall be deemed to be a building or structure in use for the purposes of the trade of hotel-
keeping".
It is common case that there is no definition of the word "hotel" or of the expression "the trade of hotel-keeping" in the taxation code.
Legal Principles Applicable to construction of a Taxing Act
There was no real controversy as to the legal principles applicable to the proper construction of a provision of the taxation code, whether concerned with the imposition of tax or the granting of exemption or relief from tax. In Revenue Commissioners v. Doorley [1933] I.R. 750, Kennedy C.J. summarised the principles as follows at p. 765:
"The duty of the court, as it appears to me, is to reject an a priori line of reasoning and to examine the text of the taxing Act in question and determine whether the tax in question is thereby imposed expressly and in clear and unambiguous terms, on the alleged subject of taxation, for no person or property is to be subjected to tax unless brought within the letter of the taxing statute, i.e., within the letter of the statute as interpreted with the assistance of the ordinary canons of interpretation applicable to Acts of Parliament so far as they can be applied without violating the proper character of taxing Acts to which I have referred.
I have been discussing taxing legislation from the point of view of the imposition of tax. Now the exemption from tax with which we are immediately concerned is governed by the same considerations. If it is clear that a tax is imposed by the Act under consideration, then exemption from that tax must be given expressly and in clear and unambiguous terms, within the letter of the statute as interpreted with the assistance of the ordinary canons for the interpretation of statutes
. . . ."
In Inspector of Taxes v. Kiernan [1981] I.R. 117, Henchy J. (with whom the other judges in the Supreme Court concurred) stated that, leaving aside any judicial decision on the point, he would approach the construction of a word in the taxation code, which is left undefined, by the application of three basic rules of statutory interpretation, which he set out as follows at p. 121:
"First, if the statutory provision is one directed to the public at large, rather than to a particular class who may be expected to use the word or expression in question in either a narrowed or an extended connotation, or as a term of art, then, in the absence of internal evidence suggesting the contrary, the word or expression should be given its ordinary or colloquial meaning . . .
Secondly, if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language . . .
Thirdly, when the word which requires to be given its natural and ordinary meaning is a simple word which has widespread and unambiguous currency, the judge construing it should draw primarily on his own experience of its use. Dictionaries or other literary sources should be looked at only when alternative meanings, regional uses or other obliquities are shown to cast doubt on the singularity of its ordinary meaning, or when there are grounds for suggesting that the meaning of the word has changed since the statute in question was passed."
More recently, in Charles McCann Ltd. v. Ó Culachain (Inspector of Taxes) [1986] I.R. 196, McCarthy J. (with whom the other judges in the Supreme Court agreed) stated that it is necessary to ensure that the ordinary person, so contemplated, is one adequately informed as to the matters relevant to the process or activity under consideration. He also stated that, in aid of construction of the particular word as used in the statute, one must look at the scheme and purpose as disclosed by the statute or the relevant part thereof.
Legal principles applicable to determination of a case stated
There was consensus as to the legal principles applicable where a court is asked to give its opinion as to whether a particular decision was correct in law. Both parties referred to the summary of the legal principles set out by Blayney J. in
Ó Culachain v. McMullan Bros. Ltd. [1995] 2 I.R. 217 at p. 222 in the following terms:
". . . when a court has before it a case stated seeking its opinion as to whether a particular decision was correct in law, the following principles apply . . . ; -
(1) Findings of primary fact by the judge should not be disturbed unless there is no evidence to support them.
(2) Inferences from primary facts are mixed questions of fact and law.
(3) If the judge's conclusions show that he has adopted a wrong view of the law, they should be set aside.
(4) If his conclusions are not based on a mistaken view of the law, they should not be set aside unless the inferences which he drew were ones which no reasonable judge could draw.
(5) Some evidence will point to one conclusion, other evidence to the opposite: these are essentially matters of degree and the judge's conclusions should not be disturbed (even if the court does not agree with them, for we are not retrying the case) unless they are such that a reasonable judge could not have arrived at them or they are based on a mistaken view of the law."
Finding of Facts
In the case stated the learned Circuit Court judge, having recorded that she had heard four witnesses, two of whom, called by the respondent, were independent consultants who had extensive experience of the hotel industry in Ireland, and one of whom called by the appellant, was an inspector of taxes who had visited Kinlay House in April, 1997 (in addition to the General Manager of Union of Students of Ireland Travel Accommodation, which operates Kinlay House) set out her findings on the facts proved or admitted in evidence as follows:
"(i) Kinlay House is comprised of 149 beds, and is open to allcomers. The accommodation is run on a commercial basis, and the three Kinlay Houses (including the subject property) are advertised as a Group as set out in the brochure scheduled [to the case stated].
(ii) Kinlay House operates a 24-hour reception and provides continental breakfast to its guests. It does not provide lunch or dinner but provides a facility by way of a kitchen where guests can cook their meals or alternatively can order in meals. Staff are provided to clean up and do washing and put things away after Breakfast. After other meals guests would normally put their dishes in the kitchen. There is a hope that they would wash them, but most of them do not. In practice the staff wash them. Kinlay House does not provide room service or a table service and has no bar. It has a lounge area. Guests in Kinlay House can obtain advice from the Receptionist as to suitable restaurants. Kinlay House has made provision with a neighbouring hotel, The Harding Hotel, operated by the same Group for guests to have lunch. No alcohol is served on the premises. Budget Hotels in cities frequently do not wish to provide meals, as many guests prefer to eat out for lunch and dinner.
(iii) The reception at Kinlay House operates a computerised reservation system similar to that used in most hotels. Information, including tourist information, is provided to guests at reception.
(iv) The typical guest is the 18-30 age group. However, all guests and all age groups are welcome. The guests are aware that they may have to share accommodation as Kinlay House sells bed accommodation so frequently groups of persons will arrange to share particular rooms or dormitories. Not infrequently if two people want a room to themselves and [if] there is not a two-bedded room they can pay for four beds and have a four-bedded room to themselves. Or alternatively it is possible for a single person or two people to book a double room. The dormitories and bedrooms all have showers for guests' use and some bedrooms are en-suite. There were communal showers, divided into male and female attached to main dormitory. Of the 39 rooms with a total capacity for 153 beds approximately half of the rooms had showers. There are no baths or bidets in the building.
(v) The accommodation a Kinlay House consists of a 28-bed dormitory, a 20-bed dormitory, a 15-bed dormitory and ten 6-bedded rooms. There are a number of 4-bedded rooms, and there are 2-bedded rooms. In all, Kinlay House has 149 beds. The dormitories are divided up into units of four beds with two steel bunks comprising four beds in each unit. While most of the bedrooms have bunk beds some have standard beds.
(vi) Kinlay House offers group rates and a discount to travel agents who make the bookings. Kinlay House has its own marketing department which involves members going abroad to visit specific travel agents who may be in the same market, and, in the same way, USIT Ltd. [the lessee of Kinlay House] generates custom from groups. USIT also has an Internet site.
(vii) Eighteen persons approximately are employed in Kinlay House. A number of these are part-time workers. Ten are full-time employees. The full-time employees include three managers, one of whom is the housekeeper and is described as the Accommodation Manager. In addition there are two sub-managers. Five of the staff work on the reception and, in addition, there are two night staff. Normally, two persons work together at reception at any one time. Most of the remaining employees who are engaged in tasks such as cleaning are part-time staff. The staff includes a supervisor, a maintenance person, a housekeeper and Accommodation Assistant.
(viii) In the summer, guests stay on average for two or three nights, and, in the winter, with group bookings, the average stay is longer. Kinlay House has checking-in facilities comparable to a Hotel.
(ix) Kinlay House competes with budget hotels. It charges £12.50 per bed in a 6-bedded room. It is registered as a 'hostel' with Bord Faílte and is a member of the Independent Holiday Hostels (IHH). Kinlay House is well run and has good standards and compares well with low-budget hotels.
(x) There are laundry facilities available to guests for use which are paid for at Reception.
(xi) The reception is open 24 hours per day. The reception is connected to a Bord Faílte Developed Gulliver Registration System, which operates nationally and throughout the world. In terms of general décor and level of service, there is not much difference between Kinlay House and what you would get in a low-budget hotel."
There was annexed to the case stated the following documents:
(a) the brochure advertising Kinlay House in relation to the period from 1994 to 1996 approximately;
(b) copies of the regulations issued by Bord Faílte governing registration of –
(i) hotels (1988), and
(ii) holiday hostels and youth hostels (1996);
(c) photographs of various parts of the premises, some of which depicted alterations and improvements which had taken place subsequent to the accounting periods to which the assessments to corporation tax under appeal related;
(d) a note of the evidence of the Inspector of Taxes who visited Kinlay House in April, 1997, which I have not had regard to; and
(e) the transcript of the judgment of the learned Circuit Court judge delivered on 15th February, 1999.
It is common case that Kinlay House is not registered as a hotel, but is registered as a hostel, with Bord Faílte.
Conclusions of Circuit Court Judge
In the case stated, the learned Circuit Court judge set out her conclusion as follows:
"In my conclusion and based on the above, I expressly found as a matter of fact that Kinlay House is not a Hotel. The issue as I saw it was whether Kinlay House was entitled to the relief pursuant to Section 255. The fact that the premises was not registered as a hotel with Bord Faílte was not, as a matter of fact in and as a matter of law determinative. The statutory provisions do not require that the premises be a registered hotel rather they require that the premises be used for the purpose of the trade of hotel-keeping. On the basis of the facts found by me, I hold as a matter of law that the premises were so used . . . ."
On the foregoing basis the learned Circuit Court judge found that the respondent was entitled to industrial building relief.
Submissions
In the case stated the learned Circuit Court judge set out the submissions which had been made in the Circuit Court on behalf of the appellant and the respondent in some detail. On the hearing of the case stated, the court had the benefit of written submissions from both parties, supplemented by oral submissions. What follows is a mere outline, which does not do justice to the depth and comprehensiveness of the submissions.
Appellant's Submissions
It was not suggested on behalf of the appellant that any of the findings of primary fact made by the learned Circuit Court judge, which I have quoted earlier, should be disturbed. It was strongly urged that the finding recorded in her conclusions, that, as a matter of fact, Kinlay House is not a hotel, should not be disturbed. The test as to what constitutes a hotel in the context under consideration here is what is the ordinary understanding of the common man of a hotel and Kinlay House would not pass that test, it was urged.
It was submitted that the conclusions of the learned Circuit Court judge, including her conclusion that Kinlay House was used for the purposes of the trade of hotel-keeping, raised mixed questions of fact and law and that, in reaching those conclusions, she adopted a wrong view of the law and also erred in fact.
Counsel for the appellant described as the "essence" of the appellant's argument his contention that the term "the trade of hotel-keeping" as used in s. 250(1)(d) does not allow, in the ordinary, everyday understanding of those words, of the possibility that such trade could be carried on in a building or structure which, as a matter of fact, is not a hotel. The two concepts, a hotel and the trade of hotel-keeping, are inseparable and a conclusion which purports to distinguish between them is illogical. The ordinary, widely understood concept of a hotel is a premises which provides accommodation for paying guests in private rooms as distinct from dormitory-type accommodation, and which provides food and drink for residents and passing members of the public at all normal mealtimes. It was submitted that it is only in a hotel as so understood that the trade of "hotel-keeping" can be carried on. Kinlay House, which provides dormitory-type accommodation with a mixture of bunk beds and standard beds and only provides continental breakfast to guests, and not lunch or dinner, would not be considered by the public at large to be a hotel as the term is commonly understood. Accordingly, the trade carried on therein would not be considered to be the trade of "hotel-keeping" by the public at large.
It was also submitted by the appellant that the reasoning of the determination was flawed, in that the learned Circuit Court judge did not explain how it could be held that the trade of hotel-keeping was carried on in a building or structure which was not, as a matter of fact, a hotel. There was an absence of crucial exposition and the determination should be overturned. In support of this argument the decision of the Supreme Court in Patrick J. O'Connell (Inspector of Taxes) v. Tara Mines Ltd. [2002] I.R.T. 143 was cited. At issue on that appeal was whether monies received by the taxpayer, Tara Mines Ltd., during the relevant years constituted "income from mining operations" within the meaning of s. 58(9) of the Corporation Tax Act, 1976. The relevant determination had been made by the Appeal Commissioners. The following passage from the judgment of Murphy J., which was relied on by the appellant, is to be found at p. 151:
"Certainly the Appeal Commissioners had been unable to find any definition of the term 'mining operations' or to provide any description of the activities which those words embraced and thus to delineate the boundaries or ambit of this phrase. In the absence of any such prior determination it is, I believe, impossible to make a conclusive finding of fact as to what does or does not fall within that description. The proposition that a finding of primary fact by the Appeal Commissioners should not be set aside by the Court unless there was no evidence whatever to support it is well established. (See Mara v. Hummingbird [1982] I.L.R.M. 421 and Brosnan v. Mutual Enterprises Ltd. [1997] 3 I.R. 257). However, what constitutes 'mining operations' is a mixed question of law and fact. Depending upon the proper definition of that term a finding of fact may establish whether such activities are involved but a finding of fact without such prior definition could not be conclusive of any legal proposition. In the present case the exposition by the Appeal Commissioners as to the nature, extent and purpose of the activities carried on by the company over ground is clear and, as a matter of fact, conclusive. But without guidance as to what 'mining operations' entail, these findings do not advance the matter significantly."
The burden of proof is on the taxpayer, who must show that it is clearly entitled to the allowance.
Respondent's Submissions
In response, it was submitted on behalf of the respondents that the learned Circuit Court judge properly identified the correct legal test in noting that the relief was not conferred on hotels but was given by reference to the activity carried on in particular premises, the trade of "hotel-keeping", which, it was submitted, was a broader concept. It was emphasised that the industrial building allowance is given by reference to the use to which an industrial building or structure is being put, not to its designation or description. If it was to be confined to a hotel it would have been a simple matter to provide for that.
It was submitted that the term 'hotel-keeping' is not a term of art. It describes the type of activity which is carried on in a hotel. Its fundamental characteristic is the provision of a premises for the purposes of overnight accommodation for the public without any special contract or without any restriction on the members of the public who might be admitted and it normally involves the provision of facilities over and above accommodation, for instance, refreshments but not necessarily drink, which I take to mean alcoholic beverages. It is noted that such suggested definition encapsulates the elements embodied in the definition of "hotel" in the Hotel Proprietors Act, 1963. As to the contention of the appellant that the trade of hotel-keeping is not conducted in Kinlay House because of the standard of the sleeping accommodation and the limited range of meals provided, it was submitted that, given the wide disparity within the trade in relation to standards of accommodation and range of facilities, it is misconceived to approach the issue as to whether the trade is carried on by reference to any one standard of accommodation or range of services.
In relation to the appellant's core contention that, as a matter of law, the trade of hotel-keeping could not be carried on in a building other than a hotel, it was submitted on behalf of the respondent that no principle of law was advanced in support of that proposition. It ignores the fact that the legislature, in effect, distinguished between a hotel and the trade of hotel-keeping in applying the industrial building allowance to the latter.
It was submitted on behalf of the respondent that there was ample evidence to support the facts as found and it was open to the learned Circuit Court judge to reach the conclusion that the trade of hotel-keeping was being carried on in Kinlay House on the basis of those findings and that such conclusion was a reasonable one.
Conclusions
Before identifying and answering the questions which, in my view, arise on the case stated, I have some preliminary observations to make.
First, I consider the fact that Kinlay House is registered with Bord Faílte as a hostel, but not as a hotel, to be irrelevant. When the expression "the trade of hotel-keeping" is considered, as it must be, in "its immediate context, in line with the scheme and purpose of the particular statutory pattern of the whole" (per Henchy J. in Inspector of Taxes v. Kiernan at p. 121), it is reasonable to infer that the legislature did not intend that the allowance should be confined to a building in use for the purpose of the trade of hotel-keeping which was registered as a hotel with Bord Faílte. It is to be inferred from the proviso to s. 255(1) which I have quoted above, which deems a holiday cottage registered with Bord Faílte to be a building or structure in use for the purposes of the trade of hotel-keeping, that, insofar as registration with Bord Failte was to be a prerequisite to the availability of the capital allowance, the legislature would so specify.
Secondly, it is to that extent, and that extent only, that I consider the proviso to be of relevance or assistance to the proper construction of para. (d). The necessity to deem certain uses as use within para. (d) does not support an argument for an expansive interpretation of para. (d). The proviso is suggestive of what does not, rather than what does, come within the ambit of para. (d).
Thirdly, in a context in which it is urged by both sides that the expression in issue, "the trade of hotel-keeping", should be given its ordinary or colloquial meaning, I have misgivings as to the appropriateness of adopting a purposive approach to interpretation on the lines suggested on behalf of the respondent – that the court should have regard to the objective of the legislation which is to encourage capital expenditure on buildings which would help to create employment or help to develop important sectors of the economy, for example, the tourism sector. I have not done so because such approach could, I believe, have the effect of violating the fundamental rubric – that a taxing statute is to be strictly construed.
Turning now to the questions which, in my view, arise on the case stated and my answers to them, which are as follows:
(1) What was the issue to be determined by the learned Circuit Court judge?
In my view, as she correctly identified, it was not whether Kinlay House, in the relevant accounting periods, was a hotel, but whether Kinlay House was in use for the purpose of the trade of hotel-keeping. That question was a mixed issue of law and fact. It involved identifying the meaning of the expression and applying that meaning to the primary facts as found.
(2) Did the learned Circuit Court judge adopt a wrong view of the law?
On the basis of the submissions made, it seems to me that the following three elements fall for consideration in answering this question, which I will deal with in turn:
(a) Whether the determination was defective because the learned Circuit Court judge did not expressly define the activities which are comprehended in the expression "the trade of hotel-keeping"?
It is true that the learned Circuit Court judge did not give a separate thumbnail sketch of the activities which denote that trade. However, her definition is implicit in the findings of fact which she made, when read in conjunction with her comprehensive recording of the submissions made to her. She specifically addressed the factors which it had been contended by the appellants took the trade outside the scope of para. (d): the nature of the sleeping accommodation and the limited range of meals. I have quoted her findings in full earlier for the purposes of illustrating this point. In paras. (iv) and (v) she dealt at length with the range of sleeping accommodation, the manner of its utilisation and the standard of bedding, as well as the sanitary accommodation. In para. (ii) she dealt with the provision of meals and made the point that budget hotels in cities frequently do not provide meals other than breakfast.
In my view, the task which faced the learned Circuit Court judge is distinguishable from the task which faced the Appeal Commissioners in the Tara Mines case. She was concerned with interpreting an expression which, by consensus, is not a term of art, whereas the Appeal Commissioners were concerned with defining an activity of a very technical and specialist nature. I do not consider that the determination of the learned Circuit Court judge was defective because she did not include an express definition of the activities involved in the trade of hotel-keeping.
(b) Whether the learned circuit Court judge misconstrued the expression "the trade of hotel-keeping"?
The answer to this question to a large extent overlaps with the answer to the immediately preceding question. The learned Circuit Court judge clearly rejected the contention of the appellants that private rooms and a full range of meals are essential features of the trade of "hotel-keeping", preferring the interpretation proffered on behalf of the respondent. In doing so, she was entitled to draw on her own experience as well as the evidence before her. In my view, it has not been established that she fell into error in doing so.
(c) Whether the finding of the learned Circuit Court judge that Kinlay House is not a hotel precluded a conclusion that the premises were in use for the purpose of the trade of hotel-keeping?
In my view, one has to consider the finding that Kinlay House is not a hotel in the context of the conclusions of the learned Circuit Court judge which I have quoted above. While she recorded that she had made the finding that, as a matter of fact, it was not a hotel, she immediately made it clear that that was not the issue: the issue was whether it was in use for the purpose of the trade of hotel-keeping. She expressly stated that the fact that the premises were not registered as a hotel with Bord Faílte Éireann was not determinative and there was no requirement for registration in s. 255(1)(d). In my view, she was correct in so determining.
The summary of conclusions contained in the case stated subsumed two passages in the judgment delivered by the learned Circuit Court judge on 15th February, 1999. In relation to her ultimate determination, the transcript records that she stated:
". . . I am of the opinion that the terminology used [in the Act] is such that it is wider than [counsel for the appellant] wanted to put on it. In other words it includes others than strictly hotels. If they wanted to have hotels they would have put in hotel. They didn't. They put in the trade of hotel-keeping. In my view Kinlay House falls within that terminology."
I am satisfied that the learned Circuit Court judge did not adopt a wrong view of the law in her approach. The conclusion that the premises are in use for the purposes of the trade of hotel-keeping is not necessarily inconsistent with the finding that the building is not a hotel, the legislature having implicitly drawn a distinction between a hotel per se and a building used for the purposes of the trade of hotel-keeping. In any event, the learned Circuit Court judge, in my view, correctly identified and determined the relevant issue, and it is that determination which is under scrutiny.
(3) Whether the conclusions of the learned Circuit Court judge were based on inferences from primary facts which no reasonable judge could have drawn?
As is frequently stated in judgments on cases stated, the weight which one judge will give to an element of the evidence as opposed to another will vary. The test is not whether a different judge, or the judge who is giving an opinion on the case stated, would have arrived at a different conclusion. The test is whether no reasonable judge would have arrived at the conclusions which the learned Circuit Court judge made. That test is not satisfied. While I consider that this is a case in which the arguments were fairly finely balanced, the inferences drawn by the learned Circuit Court judge from the primary facts were reasonable.
Opinion
I am satisfied on the facts as found by the learned Circuit Court judge that she was correct in law in her determination that Kinlay House is in use for the purposes of the trade of hotel-keeping within the meaning of s. 255(1)(d) of the Act of 1967.
