B-144595, MAY 16, 1961

B-144595, MAY 16, 1961

TO BRIGADIER GENERAL CECIL P. LESSIG, USAF:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 7, 1961, REQUESTING RECONSIDERATION OF OUR DECISION TO YOU DATED FEBRUARY 28, 1961, B 144595. IN THAT DECISION WE SUSTAINED THE ACTION TAKEN BY OUR CLAIMS DIVISION IN SETTLEMENT DATED OCTOBER 28, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR THE COST OF NONTEMPORARY STORAGE OF YOUR HOUSEHOLD EFFECTS FROM APRIL 1, 1955, TO NOVEMBER 30, 1958. HOWEVER, WE CONCLUDED THAT YOU WERE ENTITLED TO REIMBURSEMENT OF TEMPORARY STORAGE OF YOUR EFFECTS FOR THE PERIOD JULY 26 TO NOVEMBER 30, 1958, ON THE BASIS THAT APPLICABLE REGULATIONS AUTHORIZE SUCH TEMPORARY STORAGE AT ORIGIN (PLACE OF NONTEMPORARY STORAGE), IN TRANSIT OR AT DESTINATION, IN CONNECTION WITH THE SHIPMENT FROM PLACE OF NONTEMPORARY STORAGE TO DESTINATION.

IT APPEARS TO BE YOUR VIEW THAT YOU SHOULD BE ALLOWED REIMBURSEMENT FOR COMMERCIAL STORAGE OF YOUR EFFECTS FOR THE PERIOD DECEMBER 1, 1956, TO JULY 26, 1958. YOU SAY THAT IF YOU HAD KNOWN OF CHANGE 53 DATED DECEMBER 1, 1956, WHICH AMENDED PARAGRAPH 8006-2 OF THE JOINT TRAVEL REGULATIONS TO AUTHORIZE SUCH STORAGE, YOU WOULD HAVE IMMEDIATELY SUBMITTED A REQUEST FOR SUCH NONTEMPORARY STORAGE. THEREFORE, YOU BELIEVE THAT YOU SHOULD NOT BE DENIED THE BENEFITS OF THE REGULATIONS BECAUSE YOU WERE SERVING OVERSEAS AND HAD NO KNOWLEDGE OF THE CHANGE IN THE REGULATIONS.

AS WE EXPLAINED IN OUR LETTER OF FEBRUARY 28, 1961, PARAGRAPH 8006-2 OF THE JOINT TRAVEL REGULATIONS WAS AMENDED EFFECTIVE DECEMBER 1, 1956, TO PROVIDE THAT NONTEMPORARY STORAGE MAY BE IN EITHER GOVERNMENT OR COMMERCIAL FACILITIES, WHICHEVER IS DETERMINED BY THE TRANSPORTATION OFFICER TO BE MORE ECONOMICAL TO THE GOVERNMENT. THIS REGULATION DID NOT HAVE THE EFFECT OF AUTOMATICALLY AUTHORIZING, EFFECTIVE DECEMBER 1, 1956, THE PAYMENT OF CHARGES ON GOODS PREVIOUSLY PLACED IN COMMERCIAL STORAGE WHICH WERE ALLOWED TO REMAIN THERE WITHOUT ANY FURTHER REQUEST OR DETERMINATION IN THE MATTER. WE UNDERSTAND YOUR REASONS FOR NOT REQUESTING SUCH STORAGE AFTER THE EFFECTIVE DATE OF THE REGULATIONS; HOWEVER, IN VIEW OF THE MANDATORY PROVISIONS OF THE REGULATIONS AND SINCE WE HAVE NO AUTHORITY TO WAIVE SUCH PROVISIONS, OR TO MAKE EXCEPTIONS THERETO, WE HAVE NO BASIS UPON WHICH TO ALLOW YOUR CLAIM. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO AFFIRM THE DECISION OF FEBRUARY 28, 1961.

IN ANSWER TO YOUR SPECIFIC QUESTIONS, WE ARE AWARE OF NO AUTHORITY UNDER WHICH YOU MAY BE REIMBURSED FOR THE NONTEMPORARY STORAGE CHARGES HERE INVOLVED AND WE HAVE NO SUGGESTIONS TO OFFER AS TO HOW YOU MAY ADMINISTRATIVELY SECURE PAYMENT FOR SUCH STORAGE. THE ACTION OF OUR OFFICE ON CLAIMS AGAINST THE UNITED STATES IS BY LAW MADE FINAL AND CONCLUSIVE ON ALL EXECUTIVE DEPARTMENTS OF THE GOVERNMENT. THEREFORE, THERE IS NO FURTHER ACTION THAT MAY BE TAKEN ADMINISTRATIVELY ON YOUR CLAIM. HOWEVER, THE COURT OF CLAIMS HAS JURISDICTION TO CONSIDER AND DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES IF FILED THERE WITHIN SIX YEARS AFTER THE CLAIMS FIRST ACCRUE. 28 U.S.C. 2501.

YOUR QUESTION AS TO WHETHER THE AMOUNT YOU PAID FOR STORAGE IS DEDUCTIBLE FROM THIS CALENDAR YEAR'S INCOME TAX IS FOR CONSIDERATION BY THE INTERNAL REVENUE SERVICE OF THE TREASURY DEPARTMENT. OUR OFFICE HAS NO JURISDICTION TO CONSIDER YOUR RIGHTS UNDER THE INCOME TAX LAWS AND HENCE THE ..END :