Eggers v Commissioner of Inland Revenue CA25/86 [1988] NZCA 281; [1988] 2 NZLR 365 ; (1988) 10 NZTC 5,153 ; (1988) 11 TRNZ 669 (30 June 1988)

Last Updated: 28 June 2021

IN THE COURT OF APPEAL OF NEW ZEALAND CA25/86

BETWEEN WALTER ERNEST EGGERS

of Levin, Farmer

Appellant

AND THE COMMISSIONER OF INLAND REVENUE

Respondent

Coram: Cooke P

Richardson J

McMullin J

Somers J

Casey J

Hearing: 7, 8 June 1988

Counsel: G J Harley with Miss Christine Greiner for Appellant

P J H Jenkin, Q C with G D Pearson for Respondent

Judgment: 30 June 1988

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JUDGMENT OF THE COURT DELIVERED BY RICHARDSON J

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This case concerns the deductibility in calculating the assessable income of the appellant for the 1981 and 1982 income years of certain expenses incurred by the appellant in relation to a farm property at Levin. Numerous questions of principle were canvassed before the Taxation Review Authority at the hearing of objections made by the appellant to the assessments in respect of those income years. By agreement of the parties the decision of the Authority of 16 October 1984 reported at (1984) 6 NZTC 60,230 did not go into the arithmetical results of the findings made on issues of principle. The parties considered they would be able to resolve those details. On the major issues the Authority (Judge Barber) found in favour of the Commissioner. He accordingly concluded that broadly speaking the Commissioner had acted correctly in disallowing the objections. The ensuing appeal was removed into this Court by the Chief Justice on 24 March 1986 because at that time the appeal was said to involve a review of a number of decisions of this Court and also because it was considered that a decision of this Court on "Rental Losses" cases would assist in bringing to a speedy conclusion similar cases which were then pending.

The arguments of both the appellant and the Commissioner on the appeal developed somewhat differently from the arguments before the Authority and to some extent were refined further in the course of the hearing in this Court. In the result there are fewer issues for our consideration and in some cases they require some restatement. However, before turning to the crucial questions on the appeal it is necessary to summarise the factual background.

The facts

The facts are essentially common ground. Apart from the financial records and other documentary material contained in the cases stated, there was evidence from two witnesses: the appellant himself, whom the Judge described as an honest person; and a tax accountant he referred to as a chartered accountant of high integrity. The following factual narrative is taken largely from the decision of the Authority which was not challenged on the appeal by either party.

Mr Eggers purchased a 60 acre farm property at Levin, taking possession in June 1978. It is extremely fertile rolling farmland and had been used for market gardening but it required substantial development work and in particular power installation, water reticulation, fencing and buildings to suit it for beef cattle farming, which was his intention.

Mr Eggers was a company manager approaching retirement and was seeking retirement income. His wife was from a farming background and her brother, a most experienced farmer, provided advice and worked on the property with the appellant at weekends. At all times Mr Eggers took appropriate professional advice. He realised it would take some years to fund and complete the development work. His intention was to use all his spare time until retirement on development about the farm, and after retirement to farm it with his own beef cattle. From the purchase in 1978 until February 1982, while he had other full-time employment, he spent virtually every weekend at the farm. He and his brother-in-law often stayed overnight in caravans on the property and worked all weekend, and he also spent periods of leave working on the farm. He employed no other labour to help with farm development. His first project was the laying on of power. Without power there could be no water reticulation. During 1979 he put in shelter belts which included some pine as a potential cash crop. In 1980 he concentrated on fencing. In the main the property had contained only boundary fences and it was necessary to reduce the paddocks in size in order to use them for rotational grazing of cattle. The farm was originally in six paddocks and it is now divided into 11 paddocks. Water reticulation was also effected and drainage work undertaken.

He had leased the land for 3 years from 1 July 1979. The lease was to the owners of the neighbouring farm at a market rent of $2,950 per year. They used the land as a grazing run off for their dairy cattle. Mr Eggers did so in order to defray expenses and the arrangement made him feel secure because the lessees living next door could oversee the property. And the lease gave him the right to enter and to continue with development work.

By early October 1981 a new house had been built on the farm and Mr and Mrs Eggers moved in. As noted earlier, he retired in February 1982 and when the lease expired on 30 June he immediately commenced grazing cattle - and successfully as the farm accounts for the next year ending 31 August 1983 amply show.

The purchase of the land was financed with a bank loan of $45,000 and a loan of $35,875 (bearing interest at 15 per cent per year) from Mrs Eggers. At that time Mr Eggers had moneys on deposit the interest from which he included in his income for income tax purposes. The amounts of interest paid to the bank and to Mrs Eggers were treated in his accounts as deductible items along with development and other farm expenses.

The net losses shown in the farm accounts for the 1979 and 1980 income years had been set off against net employment income and other income but, following a general review by the Commissioner of his practice, he rejected that setting off approach and allowed the deductions claimed in the farm accounts only up to the amount of the rent received, treating the balance as a rental loss. From 1 July 1982 and so including the last 2 months of the taxpayer's accounting year ending 31 August 1982, the Commissioner treated Mr Eggers as being in the business of farming and entitled to all the deductions claimed referable to that last part of the 1982 income year.

For the 1981 income year the rent (and petrol rebates) received totalled $2,999 and there were, as has been noted, employment income (the figure shown is after deducting employment-related expenses) and interest of $5,335. The farm accounts show development expenditure totalling $1,098, depreciation of $789 and expenses of $19,082.74, the largest item being interest at $16,003. For the 1982 year the farm accounts show a gross profit on cattle trading of $780, hay sales $909, rent received $2,213, and petrol rebates $219. And Mr Eggers had certain employment and other income. Development expenditure totalled $4,734, depreciation $1,038 and other expenditure totalled $12,341.

The taxpayer contended that his income for income tax purposes was $13,116 in 1981 and $10,830 in 1982. The Commissioner's assessment was for $31,087 in 1981 reflecting "rental loss disallowed" of $17,971 and for $20,675 in 1982 reflecting the disallowance of $9,845 in respect of farming deductions claimed.

The issues before the Taxation Review Authority

For present purposes it is sufficient to refer to 4 broad issues of mixed fact and law raised by the parties before the Authority and determined by him.

The first and second relate to the deduction of business expenditure under s 104(b) of the Income Tax Act 1976, the third to the general deductibility of expenditure under s 104(a), and the fourth to the deduction of interest and the effect of s 106(1)(h).

The first is whether a farming business existed prior to 1 July 1982. The Authority's conclusion was:

" I find from the evidence that O merely owned a farm prior to 1 July 1982 in order to effect development work thereon prior to commencing a farmings business. In order to defray costs O leased the farm until 30 June 1982. By 1 July 1982 he was in a position to begin farming operations as he had retired from his managerial job and the lease to the neighbouring farmer had expired. Although O and his brother-in-law carried out much farm activity prior to 1 July 1982, that activity was not effected to produce income but was of a capital development nature in order to develop the farm as much as possible prior to the commencement of farming operations. "

The second is whether a rental business existed prior to 1 July 1982. The Authority's conclusion was:

" I also find from the evidence that O's purpose in leasing the property was not solely to obtain rental. O held a capital investment in the farm and while he worked out his time as a company manager, he developed the land for farming. In terms of the definition of 'business' in s 2 of the Act, the letting was not carried on for pecuniary profit. The letting was not carried on as an end in itself so that O cannot be regarded as seeking long term profit from letting. The letting was only of an interim nature to defray holding costs and was confined to a period of three years. Neither during that three year period or thereafter was profit sought from letting. Accordingly I find that there was no business of any type being conducted by O in relation to the farm property prior to 1 July 1982... In short I find that there was no intention of profit in O's mind from either farming or leasing prior to 1 July 1982 so that s 104(b) of the Act has no application to the facts of this case. "

The third concerns the effect of s 104(a). The Authority's conclusion was:

" It follows from the evidence of O that prior to 1 July 1982 the expenditure relating to the farm land was not totally or solely incurred 'in gaining or producing the assessable income'. The evidence was clearly to the effect that the expenditure was to hold the farm pending its development and the commencement of farming activities and to defrays expenses in the meantime by obtaining rental from the leasing. There was clearly duality of purpose or of advantage sought in O's expenditure. Accordingly it is necessary to ascertain the portion of the expenditure which is deductible under s 104(a). There are now quite a number of rental loss cases which, although all are based on their own facts, were decided on the apportionment principles flowing from Buckley & Young v CIR [1978] NZCA 22; (1978) 2 TRNZ 485. As is well known, in the absence of any sensible alternative the pragmatic apportionment approach of R is to be applied namely, that the portion of expenditure which equates the rental received is accepted as related to the income earning process. "

The fourth concerns the effect of s 106(1)(h). As to that Judge Barber said:

" I consider that s 106(1) is a restriction on the generality of deductibility provided by s 104 of the Act, and that due to the words in s 106(1)(h) regarding interest 'except so far as' apportionment is allowed and contemplated with regard to interest. In any case s 106 does not stand alone; it must be read with s 104 which allows deductions 'to the extent to which' there is a nexus between expenditure and income. Accordingly it is necessary to ascertain some sensible basis of apportionment of the annual interest expenditure in a manner similar to the apportionment of other outgoings. R has adhered to his policy (analysed by me in other cases) of allowing that portion of expenditure which equates income received on the basis that there is clearly a nexus between expenditure and an income earning process to at least that extent. The civil onus of proof rests on O to disprove that approach. O's argument that s 127(2)(a)(iv) must also cover interest expended in land preparation seems to me to beg the question. The interest expenditure did not relate to land preparation only, but also to land ownership as an end in itself and not merely as a corollary from land development. "

There was also considerable discussion in the decision of the deduction of development expenditure under s 131 and s 127 but, while it will be necessary to refer to those provisions later in the judgment, on the view we take no question arises as to Judge Barber's consideration of those provisions.

The issues on the appeal

The threshold question raised on the appeal can be dealt with very shortly. Relying on dicta in Grieve v Commissioner of Inland Revenue [1984] 1 NZLR 101, 103-104 Mr Harley, counsel for the appellant, submitted that the Commissioner had misdirected himself in law in disallowing deductions on the basis of a global rental loss, instead of considering deductibility on an item by item basis. It is not necessary to go into that point because it is common ground that under the wide powers conferred by s 32(1)(b) of the Income Tax Act 1976 the Authority hearing a case stated may make any assessment which the Commissioner was empowered to make at the time he made the particular assessment or direct the Commissioner to do so.

The substantial issues in this case relate to deductibility. The Income Tax Act 1976 provides a code in relation to deductibility. Section 101 bars the deduction of any expenditure or loss except as expressly provided in the Act. The general authority for such deductions is under s 104 which provides:

" In calculating the assessable income of any taxpayer, any expenditure or loss to the extent to which it -

(a) Is incurred in gaining or producing the assessable income for any income year; or

(b) Is necessarily incurred in carrying on a business for the purpose of gaining or producing the assessable income for any income year may, except as otherwise provided in this Act, be deducted from the total income derived by the taxpayer in the income year in which the expenditure or loss is incurred. "

There are 3 classes of deductions material in this case which are the subject of special provision: interest under s 106(1)(h), depreciation under s 108, and development expenditure under s 127 and s 131. The interest provision is the only one which needs to be set out in full. Section 106(1) commences:

" (1) Notwithstanding anything in section 104 of this Act, in calculating the assessable income derived by any person from any source, no deduction shall, except as expressly provided in this Act, be made in respect of any of the following sums or matters "

The relevant part of para (1)(h) as it read in the 1981 and 1982 income years provided:

" (h) Interest (not being interest of any of the kinds referred to in paragraph (g) of this subsection), except so far as the Commissioner is satisfied that (i) It is payable on capital employed in the production of the assessable income "

On the argument before us 3 points may be cleared away immediately. The first concerns the relationship between s 104 and s 106(1)(h). Judge Barber concluded that the interest provision must be read with s 104 and annual interest expenditure must be apportioned in a manner similar to that for other outgoings. His decision was given before Pacific Rendezvous Ltd v CIR (1986) TRNZ 571 was heard and decided. In that case, on a claim to deductibility of interest the Commissioner accepted for the purposes of the case that s 104 did not present any added hurdle to the company. In the course of the hearing of the present appeal the Commissioner made a similar concession. Accordingly it is not necessary to consider whether the Court should review again the judgments in Public Trustee v Commissioner of Taxes [1938] NZLR 4 and Harley v CIR [1971] NZLR 482 holding that s 106(1)(h) provided a positive entitlement to the deduction of interest, and it was not necessary, also, to satisfy s 104 - particularly now that s 106(1)(h)(i) has been replaced by a provision in different form (Income Tax Amendment Act (No 2) 1987 s 26). And Mr Jenkin did not in the end seek to challenge the reasoning in the judgments in the Pacific Rendezvous case in relation to the deductibility of interest under the old provision.

The second concerns depreciation which as an allowance, not an expenditure or loss (Banks v CIR [1978] NZLR 472), is not within s 104. Deductibility under s 108(1) turns on whether the premises, plant, machinery or equipment in question were "used in the production of income". Mr Jenkin accepted that, applying a simple use test, the assets in respect of which depreciation was claimed by the appellant in the 1981 and 1982 years were clearly used in the production of income. They were not used in any other way in those years, and there was no basis for disallowing any part of the depreciation otherwise properly allowable.

The third concerns the development expenditure. Mr Jenkin informed us that there was a development plan which the Commissioner had accepted for the purposes of s 127 as imported by s 131 and that deductibility of those expenditures in the 1981 and 1982 years was not in issue.

That leaves 2 broad issues which, if answered in favour of the appellant, are expected by counsel to dispose of all the questions arising in this case. One is whether the interest in the 1981 and 1982 years is deductible in full under s 106(1)(h), and so without any apportionment. The other is whether other expenditures in the farm accounts in the 1981 and 1982 years (apart from development expenditure allowable under s 127 and s 131) are allowable deductions under s 104 without any apportionment. That turns on the application of the standard test under s 104 to any actual business or other income earning activity in which the appellant was engaged in the income years in question before he obtained possession of the land for cattle raising on expiry of the lease. It is convenient to turn first to the latter question. The nature of the income earning process between 1 July 1980 and 30 June 1982

The significance of these dates is that they cover the period from the beginning of the 1981 income year to the expiry of the lease and resumption of possession of the land by Mr Eggers.

From the beginning Mr Eggers held the land on revenue account. It was not a private or domestic asset. All that is common ground and is reflected in the characterisation of the receipts of rent and petrol rebates in those income years as income of the taxpayer. The same was true of the farm buildings, tractors and other plant and equipment. They were part of the profit making structure of the activity on which Mr Eggers embarked after purchasing the land and which he proceeded to carry through in a systematic and coherent way. He purchased 2 lots because together they constituted an economic unit. In his farm planning he was professionally advised and he was assisted by an experienced farmer. He knew exactly what he was doing and carefully organised his time and resources to the end of cattle farming for profit. Clearly he did so expecting to farm in that way in his retirement years, not as a short term pursuit.

In the period in question and while the development work continued the land was leased. The lease began after he had owned the land for about 12 months. It was relatively short term, certainly when considered in the context of the long term use of the land for cattle raising. It did not impede the development work Mr Eggers was carrying out and it involved a farming use of the land.

Against that factual background it is, we think, artificial to look at the lease in isolation and to view Mr Eggers as a passive investor. In truth, the process on which he had embarked involved during those years an amalgam of activities which together were intended to yield current income and future income. It is true that profit was not expected immediately, but it was aimed at and achieved in the near future. Letting areas of land from time to time for grazing is an everyday part of the normal conduct of a farming business. It is often not an end in itself. It helps to minimise costs and is inherently profit oriented. Whether a letting is part of and so incidental to a wider income earning process or has to be characterised as a separate and independent income earning activity must be a question of fact and degree. In some circumstances the dividing line may not be easy to draw. In this case, however, and for the reasons outlined, we consider that the leasing here was an incident of a wider income earning process.

The next step is to determine the character of the income earning activity carried on during the period in question and, in particular, whether it was the business of farming. Grieve v CIR [1984] 1 NZLR 101 and Calkin v CIR [1984] NZCA 18; [1984] 1 NZLR 440 are recent decisions concerning the meaning of business for income tax purposes. Underlying each of the words in the definition in s 2 and the term "business" itself when used in the context of a taxation statute, is the fundamental notion of the exercise of an activity in an organised and coherent way and one which is directed to an end result. The decision whether or not a taxpayer is in business involves a two-fold inquiry: as to the nature of the activities actually carried on - including the period over which they are engaged in, the scale of operations and the volume of transactions, the commitment of time, money and effort, the pattern of activity and the financial results - and as to the intention of the taxpayer in engaging in those activities (Calkin p 446).

It is not determinative that the focus of commercial activity extended beyond the income tax year in question and that the expenditure was not of such a kind as to produce income in the tax year in which it was actually incurred. While for fiscal and administrative reasons income tax is calculated on annual income, the tax system must recognise the continuing nature of much business and other income earning activity. It does so in numerous ways and both limbs of s 104 also reflect that reality in linking deductibility to gaining or producing the assessable income "for any income year". That clearly covers the case of a continuing business or existing income earning activity. Perhaps a more important question here involves the well-recognised distinction between transactions which are preparatory to the commencement of business and those which occur once the business has begun (Birmingham and District Cattle By-Products Co Ltd v CIR (1919) 12 TC 92; Calkin v CIR). It is not sufficient to intend to enter into business or even to make a commitment to do so. A taxpayer must begin business activity.

Looked at overall we conclude that throughout the period in question Mr Eggers was carrying on the business of farming. It was an economic farming unit suited, with some development, for beef cattle raising. With advice and assistance he committed substantial time, effort and money to make the property more suitable and productive for that kind of farming while temporarily receiving revenues from a neighbour grazing dairy cattle on the land. And farm development is a continuing process. Some development work may be preparatory to the commencement of business but much development is undertaken as part of the operations of an existing farming business.

The income tax treatment of development expenditure is complicated by the standard prohibition of deduction of expenditures on improvements (s 106(1)(a)) and by various specific incentive provisions. One such provision is s 127. It applies only to a "taxpayer engaged in any farming or agricultural business" and proceeds on the premise that where a development plan has been entered into "for the purpose of development or expansion of that business" the taxpayer is entitled to deduct in calculating the assessable income derived by him "from that business ... any expenditure incurred in that business" under various categories including such items as drainage, fencing, access roading, water reticulation and the preparation of the land for farming or agriculture. It is thus assumed for the purposes of that section that the activities involved have the character of a business activity and that the taxpayer may be in business while developing the business. While s 127 is a separate incentive provision, its presence and language provide some reinforcement for the view that development work may have a business character and so be part of a new farming business. In this case, and whatever the position in the 1979 and 1980 years, we are satisfied that the taxpayer was carrying on a farming business throughout the period in question.

This conclusion is contrary to that reached by Judge Barber. However, following the approach advanced by counsel the Authority considered in separate compartments the farm activity in the form of development work carried out by Mr Eggers up to July 1982 on the one hand and the leasing on the other. And in each case he applied a purpose test - the purpose of the appellant in effecting development work and his purpose in leasing the property. For reasons given earlier we consider that a compartmentalised approach of that kind was not appropriate: the farm development activity and the associated leasing were part of a single income earning process and the amalgam of activities was intended to yield current income and future income.

Deductibility of interest under s 106(1)(h)

Under this paragraph the interest must be "payable on capital employed in the production of the assessable income". In Pacific Rendezvous the borrowed capital was put into additions and improvements to the company's motel with the dual purposes of facilitating a sale and securing a capital profit and of producing additional business income. The Court held that under the statute deductibility depended on the use to which the assets provided with the borrowed funds were put and it rejected the purpose test contended for by the Commissioner (see Cooke P p 573, Richardson J pp 577-578 and Somers J p 581).

The decision of the Authority (given before Pacific Rendezvous was decided) was that the interest was to be apportioned. But Judge Barber did not apply a use test. He considered that s 106 had to be read with s 104. He drew a distinction between the obtaining of rent and holding the property pending development and pending the commencement of farming activities and concluded that there was clearly duality of purpose. In these circumstances we must review the matter afresh.

In this case, as in Pacific Rendezvous, it is not possible to say of any part of the capital employed that it was not used in the production of assessable income. The land purchased with the borrowed money was fully committed to the income earning process. There was no other use to which it was put or could be put.

A further point arises under s 106(1)(h). It is whether or not the expression "the assessable income" in that paragraph has the same meaning as it does in the opening words of s 106(1) which are directed to deductions made "in calculating the assessable income derived by any person". If, then, the subsection is concerned with calculating the assessable income derived in a particular year, does it follow that the capital must have been employed in the production of the same assessable income, that is the assessable income of that income year, and not of any future income year?

There is no reported decision under identical statutory language. But in Ward & Co Ltd v Commissioner of Taxes [1923] AC 145, the Judicial Committee took a contrary view on similar statutory language. In that case their Lordships held that the appellant, a brewing company, was not entitled to deduct expenditure on anti-prohibition literature. If as a result of the poll prohibition came into effect, that would have affected the income of future years. Section 86(l) of the Land and Income Tax Act 1916 provided:

" In calculating the assessable income derived by any person from any source no deduction shall be made in respect of any of the following sums or matters: (a) Expenditure or loss of any kind not exclusively incurred in the production of the assessable income derived from that source ... "

Viscount Cave, delivering the judgment, said at pp 148-149:

" It will appear from the above statement that the question of law to be determined is whether the expenditure in question was or was not 'exclusively incurred in the production of the assessable income' derived by the appellants from their business in the tax-year 1918-19. In considering that question, their Lordships put aside the circumstance that the expenditure was not of such a nature as to produce income in the actual tax-year in which it was incurred. In every trade, much of the expenditure in each year - such as expenditure in the purchase of raw material, in the repair of plant or the advertisement of goods for sale - is designed to produce results wholly or partly in subsequent years; but, nevertheless, such expenditure is constantly allowed as a deduction for the year in which it is incurred. The real question is whether the expenditure in question was, within the true meaning of s 86, subs l, of the Act of 1916, exclusively incurred in the production of assessable income; and after fully considering the arguments adduced, their Lordships are of the opinion that this is not made out. "

In other words it appears that the use of the same expression "the assessable income" in both para (a) and the opening words of s 86(1) did not confine deductibility to the production of the assessable income for the income year in question.

Section 104 of the 1976 Act is based on s 51 of the Australian Income Tax Assessment Act 1936 but, while the first limb in each case refers to "the assessable income", in the second limb the Australian Act refers to "such income" rather than "the assessable income" and s 104 in relation to each limb contains the added words "the assessable income for any income year". Australian authorities clearly establish that the words "the assessable income" and "such income" refer to assessable income generally of the taxpayer and not to the assessable income of a particular accounting period. In short, an expenditure may precede or succeed related income so long as, applying the general tests under the respective limbs, there is a sufficient nexus between expenditure and income earning activity. The authorities are gathered in the judgment of Lockhart J in FCT v Total Holdings (Aust) Pty Ltd (1979) 9 ATR 885-888. And in AGC (Advances) Ltd v FTC [1975] HCA 7; (1975) 132 CLR 175, 197 Mason J (in whose judgment Barwick CJ concurred) said:

" Looking at the question de novo the case for saying that 'the assessable income' in sec 51(1) means assessable income of the taxpayer generally without regard to division into accounting periods is to my mind irresistible. There is every reason for thinking that the definite article was used so as to designate the income of the taxpayer generally rather than the income of the taxpayer in the year in question. It is inconceivable that Parliament intended to confine deductions to losses and outgoings incurred in connection with the production of income in the year in question and to exclude losses and outgoings incurred in connexion with the production of income in preceding or succeeding years. "

While the respective statutory provisions are not identical, we would be prepared to adopt the reasoning in Ward & Co Ltd v Commissioner of Taxes and follow the approach taken in Australia under s 51 and hold that the expression "the assessable income" in s 106(1)(h)(i) refers to the assessable income generally. But it may not be necessary to reach that conclusion on this interpretation point. In the particular income year the land was leased and a market rent received. There were no competing uses in respect of any part of the assets involved or for any part of the time involved affecting that assessable income.

Section 105

As a final submission Mr Jenkin contended that to allow the deductions in full would result in their being made from employment income contrary to s 106(1)(i) and s 105(2). Section 106(1)(i) bars deduction of any expenditure incurred by any taxpayer in gaining or producing assessable income which consists of income from employment as defined in s 105(1) in excess of the amount specified in s 105. But that prohibition only limits the deductibility of outlays in gaining employment income. It does not affect the deductibility of other expenditure allowable under the general or other specific deduction provisions.

For the reasons given the appeal is allowed. In answer to the questions posed in the cases stated, it is declared that the Commissioner erred in making the assessments for the years ended on 31 August 1981 and 31 August 1982 in disallowing deductions claimed in the farm accounts of the appellant in respect of those years. The costs of the appellant in respect of the appeal are fixed at $3,000 together with all reasonable disbursements, including the costs of printing the case, as fixed by the Registrar.