B-158699, SEPT. 6, 1968

B-158699, SEPT. 6, 1968

TO MR. SECRETARY:

BY LETTER OF APRIL 4, 1968, THE HONORABLE SHELDON S. COHEN, COMMISSIONER OF INTERNAL REVENUE, REQUESTED RECONSIDERATION OF THE ACTION TAKEN BY OUR CIVIL DIVISION IN ITS LETTER TO HIM DATED SEPTEMBER 7, 1966, DENYING RELIEF TO REVENUE OFFICER HENRY C. WIETMARSCHEN, FOR THE LOSS OF $140 OF REVENUE RECEIPTS AND A RECEIPT BOOK WHILE CARRYING OUT HIS DUTIES OF CALLING ON DELINQUENT TAXPAYERS.

THE RECORD ON WHICH THE DETERMINATION TO DENY RELIEF TO MR. WIETMARSCHEN WAS MADE INDICATED THAT THE MONEY (AND THE RECEIPT BOOK - FOR WHICH NO CHARGE AGAINST HIM IS MADE) DISAPPEARED WHILE IN HIS POSSESSION AND CUSTODY. MR. WIETMARSCHEN'S STATEMENT DATED AUGUST 20, 1962, INCLUDED IN SAID RECORD, INDICATED THAT HE HAD NOIDEA OF WHAT HAD HAPPENED TO THE MONEY, OTHER THAN THAT HE MUST HAVE CARELESSLY LEFT IT SOMEWHERE WHILE MAKING HIS ROUNDS. HE FURTHER STATED THAT HE DID NOT EVEN REALIZE THAT THE MONEY AND THE RECEIPT BOOK WERE MISSING UNTIL THE FOLLOWING DAY AT APPROXIMATELY 11:00 A.M., WHEN HE ATTEMPTED TO WRITE HIS FORM 795.

MR. COHEN'S REQUEST FOR RECONSIDERATION FURNISHES NO ADDITIONAL FACTS REGARDING THIS LOSS, BUT CITES FOR CONSIDERATION MR. WIETMARSCHEN'S RECORD OF 23 YEARS OF SERVICE WITH NO OTHER LOSS AND REFERS TO THE DIFFICULT CONDITIONS AND IMPROVISED FACILITIES WITH WHICH MUCH OF A REVENUE OFFICER'S WORK MUST BE CONDUCTED AS MITIGATING CIRCUMSTANCES. MR. WIETMARSCHEN'S MEMORANDUM OF FEBRUARY 27, 1968, ADDRESSED TO THE CHIEF OF THE COLLECTION DIVISION, LIKEWISE FURNISHES NO ADDITIONAL FACTUAL INFORMATION AS TO THE LOSS IN QUESTION, BUT ALSO REFERS TO HIS RECORD AND TO THE DIFFICULT CONDITIONS UNDER WHICH HIS WORK MUST BE CONDUCTED. THE MEMORANDUM OF MARCH 4, 1968, FROM THE CHIEF, COLLECTION DIVISION, TO THE DISTRICT DIRECTOR, STATES THAT THE "FINE DISTINCTION" MADE BY OUR OFFICE BETWEEN SIMPLE NEGLIGENCE AND GROSS NEGLIGENCE SEEMS NOT ONLY UNJUST BUT IMPRACTICAL, AND THAT SIMPLE NEGLIGENCE IS MERE "HUMAN ERROR" AND SHOULD NOT PRECLUDE RELIEF.

WE MAY STATE AT THIS POINT THAT OUR OFFICE HAS MADE NO DISTINCTION - FINE OR OTHERWISE -- BETWEEN GROSS AND SIMPLE NEGLIGENCE IN CASES OF THIS NATURE. THE RELIEF STATUTE HERE INVOLVED -- 31 U.S.C. 82A-1 -- AUTHORIZES RELIEF OF AN ACCOUNTABLE OFFICER WHERE IT IS FOUND THAT (AMONG OTHER THINGS) THE "LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF SUCH OFFICER * * *.' IT DOES NOT SPECIFY GROSS FAULT OR GROSS NEGLIGENCE AND THERE IS NOTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY TO INDICATE A CONGRESSIONAL INTENT THAT ONLY GROSS FAULT OR GROSS NEGLIGENCE WOULD PRECLUDE RELIEF. IT SEEMS CLEAR THAT, UNDER THIS STATUTE, ANY FAULT OR NEGLIGENCE, GROSS OR SIMPLE, ON THE PART OF THE ACCOUNTABLE OFFICER WOULD PRECLUDE RELIEF IF SUCH FAULT OR NEGLIGENCE WERE THE PROXIMATE CAUSE OF THE LOSS, AND WE HAVE CONSISTENTLY SO INTERPRETED AND APPLIED THE STATUTE. THE STATEMENT IN OUR CIVIL DIVISION'S LETTER OF SEPTEMBER 7, 1966, CONCERNING GROSS NEGLIGENCE AS OPPOSED TO SIMPLE NEGLIGENCE, WHICH APPEARS TO BE THE ONE REFERRED TO BY THE CHIEF, COLLECTION DIVISION, WAS INCLUDED THEREIN SOLELY BECAUSE ONE OF THE SEVERAL CASES COVERED BY SAID LETTER CONTAINED AN ADMINISTRATIVE DETERMINATION THAT THE PERSON INVOLVED WAS NOT GUILTY OF GROSS NEGLIGENCE. THE ONLY PURPOSE OF SAID STATEMENT WAS TO ADVISE THAT WHILE WE AGREED THAT THE PERSON'S CONDUCT DID NOT CONSTITUTE GROSS NEGLIGENCE, IT DID CONSTITUTE SIMPLE NEGLIGENCE AND UNDER THE STATUTE SUCH SIMPLE NEGLIGENCE WAS SUFFICIENT TO PRECLUDE RELIEF, AS INDICATED ABOVE.

A GOVERNMENT OFFICER COLLECTING MONEYS FOR THE UNITED STATES IS AN INSURER OF THE PUBLIC FUNDS IN HIS CUSTODY AND IS EXCUSABLE ONLY FOR LOSS DUE TO ACTS OF GOD OR THE PUBLIC ENEMY. UNITED STATES V THOMAS, 15 WALL. 337. THIS LIABILITY IS UNAFFECTED BY LACK OF NEGLIGENCE ON THE PART OF THE OFFICER, OR THE ABSENCE OF EVIDENCE THAT HE MISAPPROPRIATED THE FUNDS OR THAT THE LOSS RESULTED FROM HIS FAULT. UNITED STATES V PRESCOTT, 3 HOW. 578; SMYTHE V UNITED STATES, 188 U.S. 156; 18 COMP. GEN. 639; B-122688, SEPTEMBER 25, 1956; B-142326, MARCH 31, 1960.

HOWEVER, SECTION 1 OF THE ACT OF AUGUST 1, 1947, CH. 441, 61 STAT. 720, AS AMENDED BY THE ACT OF AUGUST 9, 1955, CH. 694, 69 STAT. 626, CODIFIED AS 31 U.S.C. 82A-1, AUTHORIZES THE GENERAL ACCOUNTING OFFICE TO RELIEVE ACCOUNTABLE OFFICERS OF SUCH RESPONSIBILITY FOR PHYSICAL LOSS OR DEFICIENCY OF GOVERNMENT FUNDS IF THE HEAD OF THE DEPARTMENT CONCERNED DETERMINES (1) THAT SUCH LOSS OR DEFICIENCY OCCURRED WHILE THE OFFICER WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTIES, OR THE LOSS OR DEFICIENCY OCCURRED BY REASON OF THE ACT OR OMISSION OF HIS SUBORDINATE; AND (2) THAT SUCH LOSS OR DEFICIENCY OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE OFFICER, AND THE GENERAL ACCOUNTING OFFICE CONCURS WITH SUCH DETERMINATIONS AFTER CONSIDERATION OF THE PERTINENT FINDINGS. RELIEF MAY BE GRANTED ONLY IN STRICT CONFORMITY WITH THE PROVISIONS OF THE STATUTE.

IN THE PRESENT CASE, IT WAS CLEAR FROM AN EXAMINATION OF THE EVIDENCE SUBMITTED WITH THE ORIGINAL REQUEST FOR RELIEF OF THE DISTRICT DIRECTOR THAT THE LOSS HAD OCCURRED BY REASON OF THE ACT OR OMISSION OF A SUBORDINATE OF THE DISTRICT DIRECTOR, AND THAT NO FAULT OR NEGLIGENCE ON THE PART OF THE DISTRICT DIRECTOR WAS INVOLVED THEREIN. HENCE, RELIEF WAS GRANTED TO THE DISTRICT DIRECTOR. WITH RESPECT TO MR. WIETMARSCHEN, THE LOSS APPARENTLY OCCURRED WHILE HE WAS ACTING IN THE DISCHARGE OF HIS OFFICIAL DUTY, BUT WE COULD NOT CONCUR WITH THE ADMINISTRATIVE DETERMINATION THAT IT OCCURRED WITHOUT FAULT OR NEGLIGENCE ON HIS PART.

WE AGREE WITH MR. COHEN THAT THERE IS NO POSITIVE OR AFFIRMATIVE EVIDENCE OF NEGLIGENCE ON THE PART OF MR. WIETMARSCHEN IN CONNECTION WITH THIS LOSS. HOWEVER, THE RECORD SHOWS UNEQUIVOCALLY THAT THE MONEY (AND THE RECEIPT BOOK) DISAPPEARED WHILE IN THE POSSESSION AND CUSTODY OF MR. WIETMARSCHEN. THERE IS NO EXPLANATION AS TO WHAT HAPPENED TO THE MONEY AND THE BOOK, ALTHOUGH IT IS INTIMATED THAT MR. WIETMARSCHEN MAY HAVE LEFT THEM SOMEWHERE WHILE MAKING HIS ROUNDS. WE HAVE REPEATEDLY HELD THAT POSITIVE OR AFFIRMATIVE EVIDENCE OF NEGLIGENCE IS NOT NECESSARY, AND THAT THE MERE FACT THAT AN UNEXPLAINED SHORTAGE OCCURRED IS, IN AND OF ITSELF, SUFFICIENT TO RAISE AN INFERENCE OR PRESUMPTION OF NEGLIGENCE. GOVERNMENT OFFICIAL CHARGED WITH THE HANDLING OF PUBLIC MONEYS IS EXPECTED TO EXERCISE THE HIGHEST DEGREE OF CARE IN THE PERFORMANCE OF HIS DUTY AND, WHEN FUNDS DISAPPEAR WITHOUT EXPLANATION OR EVIDENT REASON, THE PRESUMPTION NATURALLY ARISES THAT THE OFFICIAL HAVING CUSTODY THEREOF WAS DERELICT IN SOME WAY. MOREOVER, GRANTING RELIEF TO GOVERNMENT OFFICIALS FOR UNEXPLAINED LOSSES OR SHORTAGES OF THIS NATURE MIGHT TEND TO MAKE SUCH OFFICIALS LAX IN THE PERFORMANCE OF THEIR DUTIES. B-122688, SEPTEMBER 25, 1956; B-142326, MARCH 31, 1960.

HENCE, IF WE CONSIDER THE LOSS AS UNEXPLAINED, THERE IS A PRESUMPTION OF NEGLIGENCE, AND THERE IS NOTHING IN THE RECORD TO REBUT THAT PRESUMPTION. IF WE ACCEPT THE INTIMATION THAT MR. WIETMARSCHEN MAY HAVE LEFT THE MONEY AND THE BOOK SOMEWHERE WHILE MAKING HIS ROUNDS AS AN ,EXPLANATION" OF THE LOSS, RELIEF STILL CANNOT BE GRANTED. IT SEEMS SELF-EVIDENT THAT ANY GOVERNMENT OFFICIAL CHARGED WITH THE COLLECTION OF MONEY OWED TO THE GOVERNMENT, WHO SETS SUCH MONEY DOWN SOMEWHERE IN THE PREMISES OF A TAXPAYER (OR ANYWHERE ELSE) AND THEN LEAVES THE PREMISES WITHOUT ASSURING HIMSELF THAT HE HAS NOT LEFT ANY OF HIS DOCUMENTS OR THE MONEY, IS GUILTY OF NEGLIGENCE. THE VERY FACT THAT THE OFFICER WORKS UNDER DIFFICULT CONDITIONS AND MUST USE IMPROVISED FACILITIES RENDERS ALL THE MORE NEGLIGENT HIS LEAVING THE PREMISES WITHOUT SO ASSURING HIMSELF. ALSO, WHILE MR. WIETMARSCHEN'S GOOD RECORD IS INDICATIVE OF EFFICIENCY AND LACK OF NEGLIGENCE ON HIS PART GENERALLY, THIS IS NOT THE TEST TO BE APPLIED CONCERNING THE GRANTING OF RELIEF UNDER 31 U.S.C. 82A-1. THE DETERMINATION REQUIRED TO BE MADE UNDER THAT ACT CONCERNS THE PARTICULAR LOSS FOR WHICH RELIEF IS REQUESTED, AND WHETHER THAT LOSS OCCURRED WITHOUT FAULT OR NEGLIGENCE ON THE PART OF THE OFFICER. HENCE, IN THE INSTANT CASE THERE IS FOR CONSIDERATION IN THE MATTER OF GRANTING RELIEF ONLY THE FACTS AND CIRCUMSTANCES SURROUNDING THE PARTICULAR LOSS FOR WHICH RELIEF IS REQUESTED.

IN VIEW OF THE ABOVE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION TAKEN BY OUR CIVIL DIVISION IN ITS LETTER OF SEPTEMBER 7, 1966, AND DENY MR. WIETMARSCHEN RELIEF FROM LIABILITY FOR THE $140 LOSS HERE IN QUESTION.