Portage Tax Services v. The Queen, 82 DTC 6104, [1982] CTC 95 (FCTD)

Nitikman, DJ:—In the within action, the following paragraphs of plaintiffs’ Statement of claim are admitted, namely:

1. The plaintiff Hooper is a bookkeeper and resides at the City of Brandon, in Manitoba. The plaintiff Robinson is a realtor and resides at the Rural Municipality of Portage la Prairie, in the Province of Manitoba.

2. At all material times the plaintiffs carried on business as Income Tax consultants and discounters under the provisions of the Tax Rebate Discounting Act, Statutes of Canada, 1977, c 25 and under the Income Tax Act (Manitoba) c 110 Statutes of Manitoba, 1970, and amendments thereto.

4. In the month of January, 1979, the plaintiffs advised the defendant of their intention to commence business as discounters and were advised by the defendant as to the steps required for such purpose. On the 15th day of January, 1979, the plaintiffs advised the defendant in writing of such intention and requested a copy of the Tax Rebate Discounting Act and any related material required to perform the intended service and as a result of such communication, the defendant furnished to the plaintiffs a copy of the said Act, explanatory brochures of information required for the completion of the necessary forms and a supply of forms required for the operation of a discounting business.

5. On the eighteenth day of January, 1979, the plaintiffs made application for registration as discounters pursuant to the provisions of the Income Tax Act (Manitoba) and received a Certificate of Registration dated February 12th, 1979 pursuant to the provisions of the Income Tax Act (Manitoba) together with a copy of the Manitoba Act and Regulation 239/78 and of the forms required to comply with the provisions of the Income Tax Act (Manitoba).

6. On or about the twenty-first day of February, 1979, the plaintiffs commenced the operation of a tax rebate discounting business at the City of Portage la Prairie aforesaid.

8. The plaitiffs in the case of each of the said clients, either prepared for them an Income Tax Return or obtained from the client a copy of their Income Tax Return if prepared elsewhere and then in each case prepared a statement of discounting transaction on form CCA1714 being schedule 1 and a form of Power of Attorney supplied by the defendant and forms 1 and 2 being Tax Rebate Discounting Reports supplied by the Province of Manitoba.

9. A copy of the client’s Income Tax Return, a copy of the Power of Attorney, and a copy of the said schedule 1 (form CCA1714) was in each case forwarded forthwith upon completion to the Defendant and copies as required were furnished to each of the Plaintiffs’ clients.

The Tax Rebate Discounting Act (the Act) was assented to April 20, 1978.

Sections 2, 3, 4(1) and (2), and (5), and Schedule 1 referred to in s 4(1 )(b), and Schedule 2, referred to in s 5, are respectively as follows:

2. (1) In this Act,

“discounter” means a person who acquires, for a consideration, a right to a refund of tax from a person entitled thereto;

“refund of tax” means the amount of

(a) an overpayment of tax paid under the Income Tax Act or collected pursuant to an agreement entered into under section 7 of the Federal-Provincial Fiscal Arrangements and Established Programs Financing Act, 1977,

and any interest paid on any such overpayment or payment.

(2) For the purposes of this Act, a person acquires a right to a refund of tax where that person, as between himself and another person, acquires a right to a refund of tax or to an amount equal to the amount of a refund of tax, notwithstanding that, by virtue of section 80 of the Financial Administration Act or any provision of any other Act of Parliament or of the legislature of a province, the refund of tax is not assignable.

3. (1) Any discounter who acquires a right to a refund of tax from the person entitled to the refund for a consideration that is less than eighty-five per cent of the refund of tax is guilty of an offence.

(2) In determining for the purposes of this Act the consideraton paid or provided by a discounter for the acquisition of a right to a refund of tax from the person entitled to the refund, there shall be deducted from the consideration as otherwise determined the amount of any fee or charge levied or made by or on behalf of the discounter for the service of preparing that person’s return of income pursuant to subsection 150(1) of the Income Tax Act or for any other service directly related to the discounting transaction.

(3) Subsection (1) does not apply where the discounter who acquires the right to the refund of tax pays to the person otherwise entitled to the refund a consideration therefor that is at least equal to eighty-five per cent of the amount estimated to be the refund of tax at the time the amount is paid and who, if the actual refund of tax exceeds the estimated refund by more than one dollar, forthwith after receipt of the refund, pays or makes every reasonable effort to pay that excess to the person otherwise entitled to the refund and, in the event that the excess is not so paid within thirty days, remits the excess to the Receiver General to be held on account of any future tax liability of the person otherwise entitled to the refund.

4. (1) Any discounter who acquires a right to a refund of tax from the person entitled to the refund for a consideration without, at or before the time the right is acquired,

(a) paying by cash or by a cheque that is negotiable at the time it is given the

full amount of the consideration based on the estimated refund of tax,

(b) providing the person from whom the right is acquired with a statement in the form and containing the information set out in Schedule I, and

(c) obtaining from the person from whom the right is acquired an address of record for the purposes of section 5,

is guilty of an offence.

(2) Any discounter who

(a) acquires a right to a refund of tax from the person entitled thereto, and

(b) files on behalf of the person from whom the right is acquired a return of his income pursuant to subsection 150(1) of the Income Tax Act without including therewith a true copy of the form set out in Schedule I as provided to that person and signed by that person to acknowledge receipt of a copy thereof,

is guilty of an offence.

5. Any discounter who acquires a refund of tax the right to which was obtained for a consideration from the person entitled thereto and who fails to give notice forthwith to that person of the actual amount of the refund of tax by notice in writing, in the form and containing the information set out in Schedule II and sent to the person at the address of record obtained from that person as described in paragraph 4(1 )(c), is guilty of an offence.

It is common ground that the defendant and the Province of Manitoba have an arrangement with respect to the collection and refunds of income tax in Manitoba and with respect to regulation of private tax discounting measures in Manitoba.

The provisions of “Tax Rebate Discounting”, Part IV, of the Income Tax Act (Manitoba) in its pertinent parts, in so far as the within action is concerned, including Schedule “A”, Forms 1 and 2, headed “Tax Rebate Discounting Report”, are similar to those in the Act, save that subsection 61(1) of the Tax Rebate Discounting Act provides:

No person shall carry on business as a discounter unless he first registers with the minister. (The Minister of Finance for Manitoba.)

The Act does not require registration.

As well, at the risk of redundancy, I quote the definitions section 60 of the Tax Rebate Discounting Act, which reads in part:

60. In this Part

(a) “discounter” means any person or any servant or agent of the person who,

acting in the course of his business, and for profit or gain, in any manner

(i) acquires from a taxpayer, the taxpayer’s right to any refund of tax,

or

(ii) Obtains or acquires from the taxpayer a power of attorney authorizing the person or his servant or agent to receive for and on behalf of the taxpayer any refund of tax to which the taxpayer is entitled;

The evidence makes clear that in all matters relating to the filing of income tax returns on behalf of their clients and the filing of tax discounting transactions and the powers of attorney, save in one instance where the power of attorney was not included, plaintiffs followed the advice, directions and requirements of defendant and the Province of Manitoba and that in each case plaintiffs paid to their taxpayer clients the amount of the expected refund, as such amounts were shown on the individual schedules aforementioned.

In the course of their discounting operations during the period in question, plaintiffs completed and filed approximately 375 discounting agreements.

The first intimation of anything amiss came to plaintiffs’ attention when a taxpayer, whose refund was discounted, came to plaintiffs’ premises with his refund cheque and turned same over to plaintiffs. Plaintiffs immediately communicated with Revenue Canada and spoke to one Cy Roberts, who plaintiff Robinson (who gave evidence on behalf of plaintiffs) believes was head of Income Tax Canada dealing with income tax returns. Roberts indicated that although all discounting forms had been filled out, unless the address of the taxpayer on the front of the T1 Return had been changed to that of the discounter, a refund cheque would be forwarded to the address shown thereon, namely the taxpayer’s address. Plaintiffs’ position was that plaintiffs had received no information, the address of the taxpayer should be changed to that of the discounters. In fact the converse was the case.

In an information bulletin from Consumer and Corporate Affairs Canada, entitled “Technical Bulletin to Income Tax Discounters in Canada” (Ex 4), and which reads in part:

TAX REBATE DISCOUNTING ACT

Explanation of Information Required for the Completion of Schedule I

Schedule I is to be completed by the discounter in three copies. The original is to be attached to the taxpayer’s T(1) form being submitted to Revenue Canada, one copy is to be given to the taxpayer, and one copy is to be retained in the discounter’s files.

items 1, 7 and 10 read:

1. Name of Discounter

Insert the full legal name of a corporation or partnership, the firm name of a sole proprietorship, or the personal name of a private individual carrying on business in his name.

7. Name of Taxpayer

Insert the name exactly as it appears on the taxpayer’s T(1) form being submitted to Revenue Canada.

10. Address of Taxpayer

Insert the full address, including the suite or apartment number if applicable, of the residence of the taxpayer, and the mailing address if different from the residence. In neither case shall the address be that of the discounter. (Italics mine)

I shall make further reference to item 10 later.

At Roberts’ request, plaintiffs furnished his office with the names, addresses and social insurance numbers of the individual taxpayers whose refunds plaintiff has discounted. Roberts then said an intercept would be attempted for the forms already sent in and “if this was successful, the address of the taxpayer would be changed to have the cheques payable to taxpayer and mailed to plaintiffs (discounters).

At about this time one Glen Houston, who identified himself as being with the Federal Department of Consumer and Corporate Affairs with the position of Chief Investigator responsible for the Federal Discounting Act, accompanied by another individual whose name Robinson does not remember, but whom he referred to as Provincial head of criminal investigation, attended at plaintiffs’ place of business re possible fraud proceedings. They intimated several forms filed had not contained the necessary documentation required under the Act and requested examinations of plaintiffs’ files. Robinson indicated the returns had included all necessary forms and opened the files willingly to them. The examination proved all proceedings in order and on Houston’s return, some 65 cheques were forwarded to plaintiffs and thereafter, from time to time, further cheques were remitted to them, but 73 cheques were forwarded directly to the taxpayers and these were never turned over to the plaintiffs, although they wrote and demanded the cheques or proceeds of them from the taxpayers, even threatening legal proceedings, but in each case with negative results. Robinson deposed plaintiffs obtained a copy of the Memorandum of Agreement between the Government of Canada and the Government of Manitoba (Ex 10) and states plaintiffs performed the procedures outlined therein as it affected discounters. Robinson further said the Power of Attorney forms for discounting were requested by plaintiffs from Revenue Canada and these were duly received and used. He stated, as well, that in respect of each T1 return, after checking same, including the expected refund, all forms under both the Federal and Provincial Act were completed as prescribed, including the Power of Attorney required under the Act. A cheque was then issued in favour of taxpayer for 85% of the expected refund and handed to him. A completed copy of the Provincial discounting form (Ex 8), the Federal discounting form (Ex 5) and the Power of Attorney were then stapled to taxpayer’s T1 income tax return, all were enclosed in the envelope which came from the Federal Government to the taxpayer, the envelope was sealed, stamped and mailed that same day.

Defendant called as its only witness Douglas Murray Smith, a taxation officer with the Department of National Revenue in the Taxation Division for 23 years. In 1975 he was working as an internal or management consultant and approximately two and one-half years ago, he moved into the policies and systems area of the tax roll. He described the tax roll as the section responsible for storing returns, obtaining the returns from taxpayers and “matching information to third party information (sic) to the taxpayer’s return, and so forth”, also the refunds area as far as the issuance and tracing of tax returns.

Smith is not an auditor. He also said the section deals, as well, with the flow of information and flow of paper. In 1978, according to his evidence, there was only one regional centre, the Winnipeg Taxation Centre. All other returns were processed in the Ottawa Taxation Centre.

On the filing of an income tax return, it is recorded on the taxpayer master card, which is stored on a computer disc. Once a year, in October, those files will be run and there will be produced a label similar to what is on the return for every taxpayer who has filed an income tax return in the previous year, except “deceased and emigrants and discounters”. The label shows the taxpayer’s account number, social insurance number, name and address. In December of each year, one of the defendant’s employees supervises at the printers and these labels are placed on the return and those returns are mailed out to the taxpayer in a window envelope with a tax form. Witness further agreed it is common knowledge that in due course the taxpayer with a taxable income will have to comply with the law and prepare, or have prepared, the return.

After the return has been filed, all its information has to be processed on the taxayer’s master. If there are no changes, that is what produces the assessment notice. If there are no changes, the refund cheque will go to the address shown on the income tax return.

If there are changes after the return is filed or before assessing, when that additional information comes in it is given a number and that number is also recorded into the computer system. There is a facility within the computer to input what the Department calls a flag, being a code number in the system which indicates there is a change of some sort to be made. When this return has the data keyed in, whether just basic data or full information, it will at this point stop the assessment and give a print-out. The additional information is put in an envelope with the number recorded in the computer system and that is held until the return comes along to be processed and that is when the print-out comes in. The computer prints out a print-out and the additional information. It indicates the return is coming through. The three of these, the return, the print-out and the envelope containing whatever change there may be, are matched up together. It could be a change of address, an additional T4 slip, or any information that might change the assessment or the return. Then they look at this, making changes in the print-out. The print-out is put back through the keying operation and then the proper assessment is made and a cheque is issued if a refund is due.

It becomes clear from Smith’s evidence that the refund cheque is always made payable to the taxpayer, but I believe it to be a fact that if the information had been keyed into the computer, indicating the cheque should be mailed to the discounter at the address shown in the form annexed to the return, the cheque would have been so mailed.

I referred earlier to intercepts having been made after Roberts became apprised of the fact the cheques were going to the taxpayer despite the discount provisions. Following his meeting with Robinson, he arranged for an intercept to be made in respect of all tax returns that had been listed with him by Robinson that had not yet been processed. As a result, a considéra- ble number of cheques reached plaintiffs and were duly cashed by reason of the Powers of Attorney held by said plaintiffs, as discounters.

In cross-examination, Smith explained what happens to a return when it comes into the Winnipeg Office:

The mail is opened in the mail room and all the documents are placed in a certain order on the Income Tax Return and, if there is a schedule, that is removed. If there is a payment the payment is put on the front of the return.

In fact, all the discount material, all discount documents annexed to the return, were removed by mail clerks, some of whom were part time help not particularly trained in the Act, and the removed documents were sent to the Department of Consumer and Corporate Affairs in another building and there fed into a computer by Consumer and Corporate Affairs, not the same computer used for T1 returns.

No reason has been advanced by defendant for the removal of the discount documents from the income tax returns, despite the fact that the discounter is required by the Act to file on behalf of the taxpayer with his income tax return a true copy of Schedule I, as provided to that person and signed by that person, to acknowledge receipt of a copy thereof. A discounter failing to do so is guilty of an offence (subsection 4(3) of the Act already mentioned). As well, the technical bulletin to income tax discounters informs that Schedule I is to be completed by the discounter, and three copies, the original to be attached to the taxpayer’s T1 form being submitted to Revenue Canada.

The following is part of the cross-examination of Smith:

Q . . . So that some unknowledgeable individual in the mail room office takes the discount material and shoots it over to Consumer and Corporate Affairs, and then the Income Tax Department processes the T-1?

A That is correct.

Q Now, as far as the Income Tax computer is concerned, there is no record of the discount transaction put on the computer?

A That is not correct.

Q What record was put on with respect to any of these files we are dealing with?

A Okay; I will continue on stating what happens when it first comes in. When the schedule is removed there is a note put on the Income Tax return. This indicates there was a schedule 1 attached and this was a discounted transaction.

Q Yes?

A And when it goes into the computer that code is picked up and that signals it was a discount.

Q Was the discounter’s name and address put on the coding?

A That is not done, no.

Q The answer is “no”?

A No.

Q In the documentation that has been produced to the Court, or any other documentation you know of, was there any written direction to the Portage Tax Services before they embarked on their activity in 1979, directing them to change the address of the taxpayer on the T-1 form to that of their own office?

A No.

Plaintiffs’ position is that having complied in all respects with the requirements of the Act and Tax Rebate Discounting, the Income Tax Act (Manitoba), they acquired a right to a refund of the tax of those taxpayers of whom the plaintiffs were discounters and that the cheques representing such refunds, made payable to the respective taxpayers, should have been sent to the plaintiffs, instead of the taxpayers.

That defendant, by accepting the filing of the necessary documentation, undertook, or should be taken to have undertaken, to forward said refund cheques, payable to the taxpayers, to the plaintiffs and that the failure of defendant to do so and wrongfully sending the cheques to the taxpayers, with the exception of those cheques which were, after intercept, sent to plaintiffs, were the result of the negligence and/or breach of duty on the part of defendant, or her servants or agents, and by reason thereof plaintiffs suffered damages claimed in the statement of claim of $37,154.74, but which amount, without defendant admitting liability, has been agreed to by the parties as being $25,708.25, subject to certain minor adjustments that will be dealt with later in this judgment.

It is reasonable to assume that defendant, in passing the Act, by its provisions intended to safeguard the rights of the taxpayers against usurious rates which had, at earlier dates, been charged by discounters, particularly in the case of impecunious taxpayers who might be attracted by an immediate cash payment, instead of having to wait for a refund cheque which would arrive at a later date. Accordingly, the maximum discount rate was set and completion was required of the schedules, as provided under the Act, as well as under Tax Rebate Discounting, the Income Tax Act (Manitoba), including the name and business address of the discounter or proprietor, and of the taxpayer.

But, as well, the Act also provided assurance that the discounter, subject to his compliance with the provisions of the Act and the Tax Rebate Discounting, would in due course receive the cheque for the refund he had discounted.

Thus, subsection 2(1) reads:

In this Act,

“discounter means a person who acquires, for a consideration, a right to a refund of tax from a person entitled thereto; (italics mine)

And the same words “acquires, for a consideration, a right to a refund of tax from a person entitled thereto, read in the context of the respective sections or subsections, appear in subsections 2(2), 3(1), 3(3), 4(1) and section 5, as earlier set out.

And to further assure the discounter who acquires, for a consideration, a right to a refund of the tax from a person entitled thereto, the defendant caused to be sent to the discounter forms of Power of Attorney, three copies of each Power of Attorney to be completed by the discounter and signed by the taxpayer.

Smith’s evidence was that the reason the refund cheques were not mailed to plaintiffs was because plaintiffs’ address did not appear on the T1 return as the address of the taxpayer.

I referred earlier to items 7 and 10 of Technical Bulletin to Income Tax Discounters in Canada (Ex 4). Item 7, it will be remembered, stated the name of the taxpayer should be the same as it appears on the taxpayer’s T1 form being submitted to Revenue Canada, and item 10, dealing with the address of taxpayer, after stating the full address of taxpayer’s residence and the mailing address, if different from the residence, should be inserted continued in the next sentence: “In neither case shall the address be that of the discounter.” (Italics mine) I recognize that the items referred to completion of Schedule I of the Act, but just as item 7 refers to the name being exactly as it appears on the T1 form, so also, in my opinion, by analogy it follows that “the address shall not be that of the discounter” refers as well to the address shown on the T1 form.

The 1978 Income Tax Guide, prepared exclusively for residents of the Province of Manitoba (Ex 25), in Step 2, headed “Identifying yourself”, reads in part:

If you received your return in the mail, your name and address will already appear on it, but check to see if it is correct and that your given name and at least one initial are included. (emphasis added)

And the 1978 Combined Federal and Provincial Income Tax Return, guide and tables for residents of Canada — Revenue Canada Taxation — (Ex 26) in step 2, headed “Identifying yourself’, reads in part:

Please complete all the boxes in the identification area of your return that apply to you. Make sure that you show your current address so that your assessment notice (and refund, if applicable) will not be misdirected . . .

Under “General Information”, item number 58, under the heading of “Penalty”, after dealing with penalties for late filing and attempts at tax evasion, failing to file a return as required, there follows the sentence, “There are even more severe penalties for filing a false return.” I am of the view that showing the discounter’s address as that of the taxpayer would result in the filing of a false return.

I believe that one of the purposes in requiring a discounter to include Schedule I with the T1 return of the taxpayer, whose right to a tax refund was being discounted, was to assure that the refund cheque, while payable to the taxpayer, would be mailed to the discounter. That information would have become readily known had the discounting forms been left attached to the T1 forms for input into the computer. There would have been no problem. The cheques would have been forwarded to the plaintiffs (discounters). The removal by defendant’s employees from the T1 return of the completed discounting material, and particularly Schedule I, for a totally unexplained reason was an act of negligence for which defendant is liable.

In addition, Smith’s evidence was that a flag was fed into the computer to Signify the return was a discounted return. That surely should have alerted defendant’s employees to the necessity of an intercept so the computer could be fed the necessary information to assure the refund cheque would be mailed to the discounter. The failure of defendant’s employees to do so further compounded the original acts of negligence.

Plaintiffs having complied with the requirements of the Act in every respect and followed fully the advice and direction and requirements of defendant and of the Province of Manitoba, there was a duty and an obligation on the defendant to cause to be forwarded to plaintiffs at their place of business, as shown in Schedule I of the Act, the refund cheques payable to the respective taxpayers. Plaintiffs having under the Act acquired a right to such refunds could have negotiated said cheques to their own credit by reason of the Powers of Attorney they held. Defendant failed to carry out that duty. That constituted negligence by defendant.

Further, when the respective taxpayers, parties to the refund transactions, signed Schedule I, they authorized defendant to make out refund cheques in the name of the taxpayers, but to send said cheques to the plaintiffs. These were authorizations from the taxpayers and that is what defendant was duly bound to carry out pursuant to the Act. Failure by the defendant to carry out its duty, as already said, constituted negligence and defendant is liable to plaintiffs for the resulting damages.

The executed Powers of Attorney forming part of the discount documents attached to the T1 forms clearly signified the refund cheques should be made payable to the taxpayer. Otherwise there would be no necessity for the Powers of Attorney and I am in no doubt that was envisaged by the Act. The cheques would be made payable to the taxpayers and mailed to the discounters.

For all of the above reasons, plaintiffs’ action succeeds.

I stated earlier the parties had agreed that if there is judgment in favour of plaintiffs, the amount should be in the sum of $25,708.25, subject to minor adjustments. These related to assignments in bankruptcy made by some of the taxpayers, whose refunds had been discounted. The evidence discloses that only two assignments were made prior to the completion of the discount transactions. These were the case of Lynn Pashe (#33 on Ex 1) and Barry Pashe (#32 on Ex 1). Cheque sent by the Trustee in Bankruptcy re Lynn Pashe was for $69. No evidence was led of the amount of the cheque from the Trustee in the Barry Pashe case, but the amount of his respective refund was about one-half of that of Lynn Pashe and I calculate the amount of his cheque would have been approximately $35, making a total of $104. Deducting this amount from $25,708.25 leaves $25,604.25, and plaintiffs are entitled to judgment against defendant for this amount.

I have considered the question of interest on the amount due the plaintiffs. Section 35 of the Federal Court Act, RSC 1970 (2d Supp), c 10, provides:

In adjudicating upon any claim against the Crown, the court shall not allow interest on any sum of money that the court considers to be due to the claimant, in the absence of any contract stipulating for payment of such interest or of a statute providing in such a case for the payment of interest by the Crown. (emphasis added)

Subsection 164(3) of the Income Tax Act is to the following effect:

Where an amount in respect of an overpayment is refunded, or applied under this section on other liability, interest at a prescribed rate per annum shall be paid or applied thereon for the period commencing with the latest of

(a) the day when the overpayment arose,

(b) the day on or before which the return of the income in respect of which the tax was paid was required to be filed, and

(c) the day when the return of income was actually filed,

and ending with the day of refunding or application aforesaid, unless the amount of the interest so calculated is less than $1, in which event no interest shall be paid or applied under this subsection.

Under this section defendant is obligated to pay interest on any refunds due to the taxpayer and comes within the exception in the Federal Court Act “in the absence of . . . a statute providing in such a case for the payment of interest by the Crown.” Under the provisions of the Act, the discounter became entitled to the refund due to the taxpayer and just as interest would be payable to the taxpayer on a refund, so also is it payable to the discounter as a person entitled to the refund. In the result, I hold interest is payable to the plaintiffs on the amount of the judgment.

As will be noted from subsection 164(3), interest at a prescribed rate per annum on the refund due is to be paid or applied on the latest of subsections (a), (b) or (c) thereof. It would appear to me the latest period of (a), (b) and (c) in the within case would be (b), the day when the return was required to be filed. As April 30, 1979 was the last day for filing returns for the year in question, I accept that date as the date referred to in subsection (b).

Regulation 4300(4) under the Income Tax Act sets out the prescribed income tax rate for the purposes of subsection 164(3) of that Act, and reads in part:

(d) 9% per annum in respect of that portion of the period that is after December 31, 1978 and before January 1, 1980;

(e) 11% per annum in respect of that portion of the period that is after December 31, 1979 and before January 1, 1981; and

(f) 12% per annum in respect of that portion of the period that is after December 31, 1980.

Plaintiffs claimed interest at 10% per annum. I incline to the view that 4300(4)(d) (9% per annum) is the governing rate applicable in the within case.

There will accordingly be judgment for the plaintiffs against the defendant in the amount of $25,604.75 and interest thereon at the rate of 9% per annum, calculated from May 1, 1979, together with costs.