A-10351, AUGUST 17, 1925, 5 COMP. GEN. 122

A-10351: Aug 17, 1925

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ARE NOT PAYABLE FROM ANY CURRENT APPROPRIATION MADE BY CONGRESS BASED ON YEARLY ESTIMATES FOR THE INTERNAL REVENUE SERVICE. ARE FOR CERTIFICATION TO CONGRESS FOR AN APPROPRIATION AS A PRIVATE CLAIM AGAINST THE GOVERNMENT. 1925: I HAVE YOUR LETTER OF JUNE 30. CIGARS WHICH HAVE BEEN EXPORTED MAY BE PAID FROM THE CURRENT APPROPRIATIONS UNDER THE BUREAU OF INTERNAL REVENUE. WHERE THE SAME ARE AFFIRMED IN FAVOR OF THE CLAIMANT. FROM WHICH ACT THE ABOVE SECTION APPEARS TO HAVE BEEN TAKEN. IT WAS FURTHER PROVIDED AS FOLLOWS: THAT HEREAFTER IT SHALL BE THE DUTY OF THE SECRETARY OF THE TREASURY TO CERTIFY TO CONGRESS FOR APPROPRIATION ONLY SUCH JUDGMENTS OF THE COURT OF CLAIMS AS ARE NOT APPEALED.

A-10351, AUGUST 17, 1925, 5 COMP. GEN. 122

CLAIMS, DRAWBACK - JUDGMENTS OF THE COURT OF CLAIMS AMOUNTS FOUND DUE BY JUDGMENTS OF THE COURT OF CLAIMS ON ACCOUNT OF ALLOWANCES OR DRAWBACKS CLAIMED UNDER SECTION 3386, REVISED STATUTES, AS AMENDED, ARE NOT PAYABLE FROM ANY CURRENT APPROPRIATION MADE BY CONGRESS BASED ON YEARLY ESTIMATES FOR THE INTERNAL REVENUE SERVICE, BUT ARE FOR CERTIFICATION TO CONGRESS FOR AN APPROPRIATION AS A PRIVATE CLAIM AGAINST THE GOVERNMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, AUGUST 17, 1925:

I HAVE YOUR LETTER OF JUNE 30, 1925, REQUESTING DECISION AS TO WHETHER JUDGMENTS RENDERED BY THE COURT OF CLAIMS FOR AMOUNTS FOUND DUE UNDER SECTION 3386, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 1, 1879, 20 STAT. 347, AS ALLOWANCE OR DRAWBACK OF TAXES PAID ON TOBACCO, SNUFF, AND CIGARS WHICH HAVE BEEN EXPORTED MAY BE PAID FROM THE CURRENT APPROPRIATIONS UNDER THE BUREAU OF INTERNAL REVENUE, OR WHETHER THE AMOUNT THEREOF SHOULD BE CERTIFIED TO CONGRESS FOR AN APPROPRIATION.

SECTION 1089, REVISED STATUTES, PROVIDES AS FOLLOWS:

IN ALL CASES OF FINAL JUDGMENTS BY THE COURT OF CLAIMS, OR, ON APPEAL, BY THE SUPREME COURT, WHERE THE SAME ARE AFFIRMED IN FAVOR OF THE CLAIMANT, THE SUM DUE THEREBY SHALL BE PAID OUT OF ANY GENERAL APPROPRIATION MADE BY LAW FOR THE PAYMENT AND SATISFACTION OF PRIVATE CLAIMS, ON PRESENTATION TO THE SECRETARY OF THE TREASURY OF A COPY OF SAID JUDGMENT, CERTIFIED BY THE CLERK OF THE COURT OF CLAIMS, AND SIGNED BY THE CHIEF JUSTICE, OR, IN HIS ABSENCE, BY THE PRESIDING JUDGE OF SAID COURT.

SECTION 14 OF THE ACT OF MARCH 3, 1863, 12 STAT. 768, FROM WHICH ACT THE ABOVE SECTION APPEARS TO HAVE BEEN TAKEN, PROVIDES:

THAT NO MONEY SHALL BE PAID OUT OF THE TREASURY FOR ANY CLAIM PASSED UPON BY THE COURT OF CLAIMS TILL AFTER AN APPROPRIATION THEREFOR SHALL BE ESTIMATED FOR BY THE SECRETARY OF THE TREASURY.

IN THE ACT OF SEPTEMBER 30, 1890, 26 STAT. 537, IT WAS FURTHER PROVIDED AS FOLLOWS:

THAT HEREAFTER IT SHALL BE THE DUTY OF THE SECRETARY OF THE TREASURY TO CERTIFY TO CONGRESS FOR APPROPRIATION ONLY SUCH JUDGMENTS OF THE COURT OF CLAIMS AS ARE NOT APPEALED, OR SUCH APPEALED CASES AS SHALL HAVE BEEN DECIDED BY THE SUPREME COURT TO BE DUE AND PAYABLE * * *.

SECTION 3386, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 1, 1879, PROVIDED IN PART AS FOLLOWS:

THERE SHALL BE AN ALLOWANCE OF DRAWBACK ON TOBACCO, SNUFF, AND CIGARS ON WHICH THE TAX HAS BEEN PAID BY SUITABLE STAMPS AFFIXED THERETO BEFORE REMOVAL FROM THE PLACE OF MANUFACTURE, WHEN THE SAME ARE EXPORTED, EQUAL IN AMOUNT TO THE VALUE OF THE STAMPS FOUND TO HAVE BEEN SO AFFIXED; THE EVIDENCE THAT THE STAMPS WERE SO AFFIXED, AND THE AMOUNT OF TAX SO PAID, AND OF THE SUBSEQUENT EXPORTATION OF THE SAID TOBACCO, SNUFF, AND CIGARS, TO BE ASCERTAINED UNDER SUCH REGULATIONS AS SHALL BE PRESCRIBED BY THE COMMISSIONER OF INTERNAL REVENUE, AND APPROVED BY THE SECRETARY OF THE TREASURY. ANY SUMS FOUND TO BE DUE UNDER THE PROVISIONS OF THIS SECTION SHALL BE PAID BY THE WARRANT OF THE SECRETARY OF THE TREASURY ON THE TREASURER OF THE UNITED STATES, OUT OF ANY MONEY ARISING FROM INTERNAL DUTIES NOT OTHERWISE APPROPRIATED: * * *.

IT MAY BE STATED AS A GENERAL RULE THAT ALL JUDGMENTS, WHETHER RENDERED BY A UNITED STATES COURT OR BY THE COURT OF CLAIMS, ARE TO BE CERTIFIED TO CONGRESS FOR AN APPROPRIATION BEFORE PAYMENT THEREOF IS MADE, UNLESS THERE IS SOME SPECIFIC PROVISION IN THE APPROPRIATION SOUGHT TO BE CHARGED INDICATING A CLEAR INTENT THAT SUCH APPROPRIATION SHOULD COVER SUCH JUDGMENT OR JUDGMENTS IN QUESTION. AN INSTANCE OF THIS KIND APPLICABLE TO THE INTERNAL REVENUE SERVICE IS SECTION 3220, AS AMENDED, WHICH WAS REENACTED BY THE REVENUE ACT OF 1924, 43 STAT. 342, PROVIDING THAT---

THE COMMISSIONER OF INTERNAL REVENUE, SUBJECT TO REGULATIONS PRESCRIBED BY THE SECRETARY OF THE TREASURY, IS AUTHORIZED TO REMIT, REFUND, AND PAY BACK ALL TAXES ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED, ALL PENALTIES COLLECTED WITHOUT AUTHORITY, AND ALL TAXES THAT APPEAR TO BE UNJUSTLY ASSESSED OR EXCESSIVE IN AMOUNT, OR IN ANY MANNER WRONGFULLY COLLECTED; ALSO TO REPAY TO ANY COLLECTOR OR DEPUTY COLLECTOR THE FULL AMOUNT OF SUCH SUMS OF MONEY AS MAY BE RECOVERED AGAINST HIM IN ANY COURT, FOR ANY INTERNAL REVENUE TAXES COLLECTED BY HIM, WITH THE COST AND EXPENSES OF SUIT; ALSO ALL DAMAGES AND COSTS RECOVERED AGAINST ANY ASSESSOR, ASSISTANT ASSESSOR, COLLECTOR, DEPUTY COLLECTOR, AGENT, OR INSPECTOR, IN ANY SUIT BROUGHT AGAINST HIM BY REASON OF ANYTHING DONE IN THE DUE PERFORMANCE OF HIS OFFICIAL DUTY, AND SHALL MAKE REPORT TO CONGRESS AT THE BEGINNING OF EACH REGULAR SESSION OF CONGRESS OF ALL TRANSACTIONS UNDER THIS SECTION.

JUDGMENTS RECOVERED UNDER THE FIRST TWO CLAUSES OF THIS SECTION ARE HELD TO BE PAYABLE FROM CURRENT APPROPRIATIONS MADE BY CONGRESS, BUT NOT THOSE UNDER THE THIRD CLASS BEING FOR CERTIFICATION TO CONGRESS UPON THE THEORY THAT THEY ARE NOT JUDGMENTS FOR THE RECOVERY OF TAXES. 2 COMP. GEN. 501, 821.

THE TYPE OF JUDGMENT INVOLVED IN THE PRESENT SUBMISSION DOES NOT INVOLVE TAXES "ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED" AS CONTEMPLATED BY THE ABOVE-QUOTED SECTION, AND IS NOT PROPERLY FOR CONSIDERATION THEREUNDER, THE TAXES HERE HAVING BEEN PROPERLY COLLECTED AND COVERED INTO THE TREASURY AND THE POINT INVOLVED BEING ONE OF REFUNDING OF THE TAX UPON THE HAPPENING OF A CONTINGENCY.

THE PROVISIONS OF SECTION 3386, REVISED STATUTES, SUPRA, AUTHORIZED ALLOWANCE OF DRAWBACK ON CERTAIN GOODS WHICH HAVE BEEN EXPORTED, THE AMOUNT OF SUCH DRAWBACK TO BE ASCERTAINED UNDER SUCH REGULATIONS AS SHALL BE PRESCRIBED BY THE COMMISSIONER OF INTERNAL REVENUE AND APPROVED BY THE SECRETARY OF THE TREASURY. THERE IS NO PROVISION MADE THEREIN FOR THE PAYMENT OF ANY AMOUNT FOUND DUE UNDER THIS SECTION BY JUDGMENT OF THE COURT OF CLAIMS. THE CLAUSE "ANY AMOUNT FOUND DUE" MUST BE CONSTRUED AS APPLYING TO AMOUNTS FOUND DUE UNDER THE PROVISIONS OF SAID SECTION BY THE COMMISSIONER OF INTERNAL REVENUE, THE LANGUAGE USED THEREIN EVIDENTLY NOT CONTEMPLATING THE PAYMENT OF JUDGMENTS RENDERED BY THE COURT OF CLAIMS FROM CURRENT APPROPRIATIONS MADE FOR THE INTERNAL REVENUE SERVICE.

THE PHRASE "APPROPRIATION MADE BY LAW FOR THE PAYMENT AND SATISFACTION OF PRIVATE CLAIMS" AS USED IN SECTION 1089, REVISED STATUTES, SUPRA, MUST BE CONSTRUED TO MEAN AN APPROPRIATION FOR CLAIMS WHICH THE EXECUTIVE DEPARTMENTS HAVE REJECTED OR OVER WHICH THEY HAVE NO JURISDICTION, SUCH APPROPRIATION BEING FOR DEBTS WHICH WERE NOT TO BE PAID OUT OF SPECIFIC APPROPRIATIONS. SWEENEY V. UNITED STATES, 5 CT.CLS. 285, 290.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ACCORDINGLY ADVISED THAT JUDGMENTS RENDERED BY THE COURT OF CLAIMS ON ACCOUNT OF ALLOWANCES OR DRAWBACKS CLAIMED UNDER SECTION 3386, REVISED STATUTES, AS AMENDED, ARE NOT PAYABLE FROM ANY CURRENT APPROPRIATION MADE BY CONGRESS BASED ON YEARLY ESTIMATES FOR THE INTERNAL REVENUE SERVICE, SUCH JUDGMENTS BEING FOR INDIVIDUAL CERTIFICATION TO CONGRESS FOR AN APPROPRIATION AS A PRIVATE CLAIM AGAINST THE GOVERNMENT.