B-144997, MAR. 31, 1961

B-144997, MAR. 31, 1961

TO MISS ELOISE ENGLISH:

THIS IS IN REFERENCE TO YOUR CLAIM FOR TREASURY CHECK NO. 23,986,190, IN THE AMOUNT OF $14,949.70, ISSUED FOR AN INCOME TAX REFUND. BY LETTER DATED MARCH 3, 1961, WE ADVISED YOUR ATTORNEY MR. NATHANIEL ROTHSTEIN, 11 EAST 44TH STREET, NEW YORK 17, NEW YORK, THAT INSTRUCTIONS HAD BEEN ISSUED TO EFFECT PAYMENT.

SUBSEQUENT TO MARCH 3 ADDITIONAL FACTS CAME TO THE ATTENTION OF OUR OFFICE WHICH NECESSITATED REVOCATION OF OUR INSTRUCTIONS TO EFFECT PAYMENT.

THE CHECK WHICH IS THE SUBJECT OF YOUR CLAIM WAS DRAWN TO YOUR ORDER AND MAILED TO YOUR HOME ADDRESS, BUT LATER CAME INTO THE POSSESSION OF MR. RALPH SCHWARTZ, A CERTIFIED PUBLIC ACCOUNTANT, WHO WAS RETAINED BY YOU FOR THE PURPOSE OF FILING INCOME TAX REFUND CLAIMS. UNDER THE RETAINER AGREEMENT, DATED MARCH 9, 1959, YOU AUTHORIZED MR. SCHWARTZ TO DEDUCT HIS COMPENSATION FROM THE REFUND PROCEEDS TO BE COLLECTED AND DEPOSITED BY MR. SCHWARTZ PURSUANT TO POWER OF ATTORNEY EXECUTED FEBRUARY 1, 1959. THE CHECK WAS ENDORSED "ELOISE ENGLISH, RALPH SCHWARTZ, ATTORNEY UNDER P.A. DATED MARCH 9, 1959" AND CASHED BY THE INDUSTRIAL TRUST COMPANY, PHILADELPHIA, PENNSYLVANIA. COPIES OF THE POWER OF ATTORNEY, INTERNAL REVENUE SERVICE FORM RC BOS 967, EXECUTED MARCH 9, 1959, WHICH ARE ON FILE WITH THE INTERNAL REVENUE SERVICE, BY DELETION OF THE WORD "NOT" APPARENTLY INITIALED BY YOU, AUTHORIZE MR. SCHWARTZ TO RECEIVE, ENDORSE AND COLLECT CHECKS WHICH MAY BE ISSUED INCIDENT TO THE HANDLING OF YOUR INCOME TAX LIABILITY FOR THE YEARS 1955, 1956, AND 1957.

THE CONTROVERSY WHICH NOW EXISTS OVER THE ALLEGED MANNER IN WHICH MR. SCHWARTZ OBTAINED THE CHECK, AND YOUR ALLEGATIONS CONCERNING THE ALTERING OF THE POWERS OF ATTORNEY, ALL OF WHICH ARE CATEGORICALLY DENIED BY MR. SCHWARTZ, WHEN CONSIDERED WITH POSSIBLE RIGHTS THE BANK MAY HAVE AS A HOLDER IN DUE COURSE, RAISE SUFFICIENT DOUBT AS NOT TO REQUIRE OR JUSTIFY OUR OFFICE TO TAKE ACTION IN THE MATTER. IT IS WELL ESTABLISHED THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS OF DOUBTFUL VALIDITY. SEELONGWILL V. UNITED STATES, 17 CT.CL. 288, 291 (1881); CHARLES V. UNITED STATES, 19 ID. 316, 319 (1884); 18 COMP. GEN. 199; 26 ID. 778. IN VIEW OF THE CONFLICTING EVIDENCE AND UNUSUAL CIRCUMSTANCES AS DISCLOSED BY THE RECORD, NO ACTION WILL BE TAKEN IN REGARD TO CHECK NO. 23,986,190, IN THE ABSENCE OF A JUDICIAL DETERMINATION AS TO THE RIGHTS OF THE PARTIES INVOLVED OR OF A CURRENT WRITTEN AGREEMENT BETWEEN THE PARTIES AS TO THE DISPOSITION TO BE MADE OF THE PROCEEDS OF THE CHECK.