A-11495, DECEMBER 1, 1925, 5 COMP. GEN. 400

A-11495: Dec 1, 1925

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WILL NOT NECESSARILY BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OF ACCOUNTS AS CONCLUSIVE EVIDENCE OF THAT FACT. WHERE OTHER ADMINISTRATIVE ORDERS AND ACTIONS OF THE EMPLOYEE PURSUANT THERETO AND CIRCUMSTANCES INCIDENT THERETO ARE SO INCONSISTENT WITH THE ORDER PURPORTING TO FIX THE POST OF DUTY AS TO SHOW BEYOND A REASONABLE DOUBT THAT THE POST OF DUTY IS NOT THE PLACE DESIGNATED IN THE WRITTEN ORDER. STATE THAT IN THE PROCESS OF AUDITING INTERNAL REVENUE ACCOUNTS THIS OFFICE IS DETERMINING AND DESIGNATING THE POSTS OF DUTY OF SUCH EMPLOYEES. WHICH IS CLEAR AND SPECIFIC IN ITS TERMS. THERE IS NO DOUBT BUT THAT THE ACT OF MAY 10. THE EVIDENT INTENT AND PURPOSE OF THE PROVISION WAS TO RELIEVE THE SECRETARY OF THE TREASURY.

A-11495, DECEMBER 1, 1925, 5 COMP. GEN. 400

SUBSISTENCE, AT HEADQUARTERS - DESIGNATION OF POSTS OF DUTY THE WRITTEN ORDER OF THE COMMISSIONER OF INTERNAL REVENUE ISSUED UNDER THE PROVISIONS OF THE ACT OF MAY 10, 1916, 39 STAT. 87, PURPORTING TO FIX THE DESIGNATED POST OF DUTY OF A FIELD EMPLOYEE OF THE INTERNAL REVENUE SERVICE, WILL NOT NECESSARILY BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OF ACCOUNTS AS CONCLUSIVE EVIDENCE OF THAT FACT, WHERE OTHER ADMINISTRATIVE ORDERS AND ACTIONS OF THE EMPLOYEE PURSUANT THERETO AND CIRCUMSTANCES INCIDENT THERETO ARE SO INCONSISTENT WITH THE ORDER PURPORTING TO FIX THE POST OF DUTY AS TO SHOW BEYOND A REASONABLE DOUBT THAT THE POST OF DUTY IS NOT THE PLACE DESIGNATED IN THE WRITTEN ORDER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, DECEMBER 1, 1925:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 10, 1925, IN WHICH YOU QUOTE FROM THE ACT OF MAY 10, 1916, 39 STAT. 87, PROVIDING THAT THE COMMISSIONER OF INTERNAL REVENUE SHALL DETERMINE AND DESIGNATE THE POSTS OF DUTY OF ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA, AND STATE THAT IN THE PROCESS OF AUDITING INTERNAL REVENUE ACCOUNTS THIS OFFICE IS DETERMINING AND DESIGNATING THE POSTS OF DUTY OF SUCH EMPLOYEES.

YOU REQUEST DECISION--- "WHETHER THE GENERAL ACCOUNTING OFFICE MAY PROPERLY DETERMINE AND DESIGNATE THE POSTS OF DUTY OF THE CLASS OF EMPLOYEES IN QUESTION, OR DOES THE STATUTE, WHICH IS CLEAR AND SPECIFIC IN ITS TERMS, VEST THIS AUTHORITY SOLELY IN THE COMMISSIONER OF INTERNAL REVENUE.'

THERE IS NO DOUBT BUT THAT THE ACT OF MAY 10, 1916, SUPRA, VESTS IN THE COMMISSIONER OF INTERNAL REVENUE THE DUTY OF DETERMINING AND DESIGNATING THE POSTS OF DUTY OF FIELD EMPLOYEES OF THE INTERNAL REVENUE SERVICE. THE EVIDENT INTENT AND PURPOSE OF THE PROVISION WAS TO RELIEVE THE SECRETARY OF THE TREASURY, THE HEAD OF THE DEPARTMENT, OF THE DETAIL INVOLVED IN THE DESIGNATION OF POSTS OF DUTY OF INTERNAL REVENUE EMPLOYEES. IT GRANTED TO THE COMMISSIONER OF INTERNAL REVENUE NO GREATER POWER OR AUTHORITY WITH RESPECT TO THE MATTER THAN IS ORDINARILY VESTED IN THE HEAD OF A DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT RELATIVE TO FIXING THE POSTS OF DUTY OF FIELD EMPLOYEES. JUDGING FROM NUMEROUS CASES THAT HAVE COME TO THE ATTENTION OF THIS OFFICE IT WOULD SEEM THAT THE COMMISSIONER OF INTERNAL REVENUE HAS CONSTRUED THE PROVISION IN QUESTION AS AUTHORIZING HIM TO CONFER UPON AN EMPLOYEE A RIGHT TO SUBSISTENCE OR PER DIEM IN LIEU THEREOF AT HIS REGULAR OR PERMANENT POST OF DUTY MERELY BY NAMING SOME OTHER PLACE AS "DESIGNATED POST OF DUTY.' THE AUTHORITY TO DETERMINE AND DESIGNATE A POST OF DUTY INCLUDES ONLY THE AUTHORITY TO FIX THE PLACE AT WHICH THE EMPLOYEE SHOULD ACTUALLY ESTABLISH OFFICIAL HEADQUARTERS AND FROM WHICH HE SHOULD IN FACT OPERATE. ATTENTION IS INVITED TO THE CLOSING PARAGRAPH OF DECISION DATED MARCH 6, 1925, A-4945, AS FOLLOWS:

IT IS REASONABLE TO ASSUME THAT THE CONGRESS, IN AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO DETERMINE AND DESIGNATE THE POSTS OF DUTY OF EMPLOYEES, CONTEMPLATED THAT HE WOULD BE GUIDED BY THE INTERESTS OF THE SERVICE IN MAKING SUCH DETERMINATION AND DESIGNATION, AND ORDINARILY SUCH INTERESTS WOULD DICTATE THAT THE PLACE WHERE THE EMPLOYEE WOULD BE REQUIRED TO SPEND MOST OF HIS TIME SHOULD BE DESIGNATED AS HIS POST OF DUTY, AND IN SUCH CASES THE DESIGNATION OF ANY OTHER PLACE FOR THE PURPOSE OF GIVING THE EMPLOYEE A PER DIEM FOR THE GREATER PORTION, OR ALL, OF HIS TIME WOULD APPEAR TO BE AN IMPROPER EXERCISE OF THE AUTHORITY VESTED IN THE COMMISSIONER BY THE STATUTE.

THE UNIFORM RULINGS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE BEEN THAT IN DETERMINING THE LEGALITY OF PAYMENTS MADE BY DISBURSING OFFICERS FOR SUBSISTENCE OF EMPLOYEES AS IN A TRAVEL STATUS, THE ACTUAL FACTS AND CIRCUMSTANCES INCIDENT TO EACH CASE MUST GOVERN, RATHER THAN THE WRITTEN ORDER OF THE ADMINISTRATIVE OFFICER PURPORTING TO FIX A POST OF DUTY; THAT IS TO SAY, THE WRITTEN ORDER OF AN ADMINISTRATIVE OFFICER CAN NOT BE ACCEPTED AS CONCLUSIVE OF THE RIGHTS OF AN EMPLOYEE TO SUBSISTENCE OR PER DIEM IN LIEU THEREOF WHERE OTHER ORDERS OF THE ADMINISTRATIVE OFFICER, ACTIONS OF THE EMPLOYEE PURSUANT THERETO, AND THE CIRCUMSTANCES APPEARING ARE SO INCONSISTENT WITH THE WRITTEN ORDER PURPORTING TO FIX THE POST OF DUTY AS TO SHOW BEYOND A REASONABLE DOUBT THAT THE POST OF DUTY ACTUALLY DETERMINED AND DESIGNATED WAS NOT AT THE PLACE DESIGNATED IN THE WRITTEN ORDER PURPORTING TO FIX THE SAME, BUT THAT SUCH ORDER WAS ISSUED FOR THE SOLE PURPOSE OF ATTEMPTING TO CREATE A BASIS FOR PAYMENT OF SUBSISTENCE ALLOWANCE NOT AUTHORIZED BY LAW.

THIS OFFICE DOES NOT ASSUME THE AUTHORITY TO DETERMINE AND DESIGNATE POSTS OF DUTY OF EMPLOYEES IN THE INTERNAL REVENUE SERVICE, BUT ITS DUTIES AND RESPONSIBILITIES UNDER THE LAW IN THE MATTER OF AUDITING ACCOUNTS INVOLVING PAYMENTS TO EMPLOYEES FOR SUBSISTENCE OR PER DIEM IN LIEU THEREOF ARE PLAIN AND ARE IN NO WAY CIRCUMSCRIBED BY THE PROVISION IN THE ACT OF MAY 10, 1916, HERE IN QUESTION.

AS AN INSTANCE OF THE COMMISSIONER'S APPARENT MISCONCEPTION OF HIS AUTHORITY UNDER SAID PROVISION ATTENTION IS INVITED TO THE FACTS SET FORTH IN DECISION OF NOVEMBER 7, 1925. 5 COMP. GEN. 337.