A-14297, AUGUST 20, 1927, 7 COMP. GEN. 128

A-14297: Aug 20, 1927

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OR TO DATE OF ENTRY OF FINAL JUDGMENT IN EVENT SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT. AUTHORIZES THE PAYMENT OF INTEREST DURING THE INTERVAL BETWEEN THE DATE OF JUDGMENT AND THE DATE PETITION FOR CERTIORARI IS DENIED. WHEREIN WAS DISALLOWED THEIR CLAIM FOR INTEREST FROM MAY 3. DATE JUDGMENT WAS ENTERED BY THE COURT OF CLAIMS IN MAY MCKINNEY ET AL. THE DISALLOWANCE WAS ON THE GROUND THAT THERE WAS NO LEGAL AUTHORITY FOR PAYMENT OF THE INTEREST CLAIMED. THE JUDGMENT WAS FOR REFUND OF TAXES ERRONEOUSLY COLLECTED BY THE COMMISSIONER OF INTERNAL REVENUE FROM THE ESTATE OF THE DECEDENT AND THE COURT OF CLAIMS ALLOWED INTEREST OF $13. OR FOR ANY PENALTY COLLECTED WITHOUT AUTHORITY OR FOR ANY SUM WHICH WAS EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED.

A-14297, AUGUST 20, 1927, 7 COMP. GEN. 128

JUDGMENTS - INTERNAL REVENUE - INTEREST WHILE SECTION 1117B OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 120, AUTHORIZES THE ALLOWANCE OF INTEREST TO DATE OF RENDITION OF JUDGMENT, OR TO DATE OF ENTRY OF FINAL JUDGMENT IN EVENT SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT, NEITHER SAID SECTION NOR THE ACT OF SEPTEMBER 30, 1890, 26 STAT. 537, AUTHORIZES THE PAYMENT OF INTEREST DURING THE INTERVAL BETWEEN THE DATE OF JUDGMENT AND THE DATE PETITION FOR CERTIORARI IS DENIED.

DECISION BY ACTING COMPTROLLER GENERAL GINN, AUGUST 20, 1927:

MAY MCKINNEY AND WILLIAM AYER MCKINNEY, EXECUTORS OF THE ESTATE OF HENRY NELSON MCKINNEY, DECEASED, REQUESTED REVIEW OF SETTLEMENT NO. 0172493, DATED MARCH 16, 1927, WHEREIN WAS DISALLOWED THEIR CLAIM FOR INTEREST FROM MAY 3, 1926, DATE JUDGMENT WAS ENTERED BY THE COURT OF CLAIMS IN MAY MCKINNEY ET AL., EXECUTORS, V. UNITED STATES, NO. D-367, TO OCTOBER 25, 1926, DATE ON WHICH THE SUPREME COURT OF THE UNITED STATES DENIED THE GOVERNMENT'S PETITION FOR A WRIT OF CERTIORARI TO REVIEW THE JUDGMENT. THE DISALLOWANCE WAS ON THE GROUND THAT THERE WAS NO LEGAL AUTHORITY FOR PAYMENT OF THE INTEREST CLAIMED.

THE JUDGMENT WAS FOR REFUND OF TAXES ERRONEOUSLY COLLECTED BY THE COMMISSIONER OF INTERNAL REVENUE FROM THE ESTATE OF THE DECEDENT AND THE COURT OF CLAIMS ALLOWED INTEREST OF $13,937.44 FROM THE DATES OF PAYMENT OF THE VARIOUS SUMS AGGREGATING THE PRINCIPAL OF $34,460.25 TO MAY 3, 1926, DATE OF JUDGMENT, UNDER THE PROVISIONS OF SECTION 1117B OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 120, AS FOLLOWS:

IN ANY JUDGMENT OF ANY COURT RENDERED AFTER THE ENACTMENT OF THE REVENUE ACT OF 1926 * * * FOR ANY INTERNAL-REVENUE TAX ERRONEOUSLY OR ILLEGALLY ASSESSED OR COLLECTED, OR FOR ANY PENALTY COLLECTED WITHOUT AUTHORITY OR FOR ANY SUM WHICH WAS EXCESSIVE OR IN ANY MANNER WRONGFULLY COLLECTED, UNDER THE INTERNAL-REVENUE LAWS, INTEREST SHALL BE ALLOWED AT THE RATE OF 6 PERCENTUM PER ANNUM UPON THE AMOUNT OF SUCH TAX, PENALTY, OR SUM, FROM THE DATE OF THE PAYMENT OR COLLECTION THEREOF TO THE DATE OF ENTRY OF SUCH JUDGMENT OR, IF SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT, TO THE DATE OF ENTRY OF FINAL JUDGMENT.

THE UNITED STATES SUBMITTED PURSUANT TO SECTION 3B OF THE ACT OF FEBRUARY 13, 1925, 43 STAT. 939, A PETITION TO THE SUPREME COURT OF THE UNITED STATES FOR A WRIT OF CERTIORARI TO REVIEW THE JUDGMENT BUT ITS PETITION WAS DENIED OCTOBER 25, 1926. A TRANSCRIPT OF THE JUDGMENT WAS FILED MAY 6, 1926, IN THE DIVISION OF BOOKKEEPING AND WARRANTS, TREASURY DEPARTMENT. THE SETTLEMENT UNDER REVIEW ALLOWED INTEREST, AS STATED IN THE JUDGMENT OF THE COURT OF CLAIMS, FROM THE DATES OF PAYMENT OF THE SEVERAL SUMS AGGREGATING $34,460.25, THE PRINCIPAL OF THE JUDGMENT, TO MAY 3, 1926, BUT INTEREST IS CLAIMED FROM THE LATTER DATE TO OCTOBER 25, 1926, UNDER THE PROVISIONS OF SECTION 1117B OF THE ACT OF FEBRUARY 26, 1926, SUPRA, AND THE ACT OF SEPTEMBER 30, 1890, 26 STAT. 537, AS FOLLOWS:

* * * ON JUDGMENTS IN FAVOR OF CLAIMANTS WHICH HAVE BEEN APPEALED BY THE UNITED STATES AND AFFIRMED BY THE SUPREME COURT, INTEREST, AT THE RATE OF FOUR PERCENTUM PER ANNUM, SHALL BE ALLOWED AND PAID FROM THE DATE OF FILING THE TRANSCRIPT OF JUDGMENT IN THE TREASURY DEPARTMENT UP TO AND INCLUDING THE DATE OF THE MANDATE OF AFFIRMANCE BY THE SUPREME COURT. * *

HOWEVER, THE ACT OF SEPTEMBER 30, 1890, AUTHORIZED THE PAYMENT OF INTEREST WHEN A JUDGMENT OF THE COURT OF CLAIMS WAS APPEALED BY THE UNITED STATES AND THERE WAS A MANDATE OF AFFIRMANCE BY THE SUPREME COURT OF THE UNITED STATES. AS THIS CASE WAS NEITHER APPEALED NOR AFFIRMED BY SAID COURT, THE ACT OF 1890 DOES NOT AFFORD ANY AUTHORITY FOR THE PAYMENT OF THE CLAIMED INTEREST.

EQUALLY INAPPLICABLE IN SECTION 1117B OF THE ACT OF FEBRUARY 26, 1926, SUPRA, FOR IT AUTHORIZES PAYMENT OF INTEREST TO THE DATE OF ENTRY OF JUDGMENT--- WHICH HAS BEEN DONE--- OR "IF SUCH JUDGMENT IS REVIEWED BY AN APPELLATE COURT, TO THE DATE OF ENTRY OF FINAL JUDGMENT.' THERE HAS BEEN NO REVIEW OF THE FINAL JUDGMENT OF MAY 3, 1926, OF THE COURT OF CLAIMS IN THIS CASE. A DENIAL OF A WRIT OF CERTIORARI BY THE SUPREME COURT OF THE UNITED STATES DOES NOT CONSTITUTE EITHER AN AFFIRMANCE OR A REVIEW OF A JUDGMENT, FOR THAT COURT SAID IN HAMILTON SHOE COMPANY V. WOLF BROTHERS, 240 U.S. 251, AT PAGE 258, THE REFUSAL OF THE EXTRAORDINARY WRIT OF CERTIORARI "IS IN NO CASE EQUIVALENT TO AN AFFIRMANCE OF THE DECREE THAT IS SOUGHT TO BE REVIEWED.'

THIS CONCLUSION IS APPARENTLY CONCEDED BY CLAIMANTS, BUT THEY CONTEND IT WAS THE INTENTION OF THE LAW TO ALLOW INTEREST AS A PENALTY ON THE UNITED STATES FOR DELAYS RESULTING FROM THE ACTION OF THE GOVERNMENT IN ATTEMPTING TO HAVE A JUDGMENT REVERSED AND THAT THIS DELAY OBTAINS WHETHER SUCH ACTION BE BY APPEAL OR BY CERTIORARI, AND THAT SINCE THE ACT OF FEBRUARY 13, 1925, SUPRA, ABOLISHED APPEALS FROM THE COURT OF CLAIMS AND SUBSTITUTED CERTIORARI THEREFOR, IT SHOULD BE CONSIDERED THAT A DENIAL OF A PETITION FOR CERTIORARI IS EQUIVALENT TO AN AFFIRMANCE ON APPEAL FOR THE PURPOSE OF PAYING INTEREST DURING THE INTERIM BETWEEN THE DATE OF THE JUDGMENT OF THE LOWER COURT AND THE DENIAL OF THE PETITION. HOWEVER, IT IS TO BE OBSERVED THAT SECTION 1117B OF THE ACT OF FEBRUARY 26, 1926, IS SUBSEQUENT IN POINT OF TIME TO THE ACT OF FEBRUARY 13, 1925, AND HAD IT BEEN THE INTENTION TO PAY INTEREST DURING SUCH INTERIM PROVISION TO THAT EFFECT DOUBTLESS WOULD HAVE BEEN MADE IN SAID SECTION. EVEN IF SUCH A PROVISION WAS INADVERTENTLY OMITTED THEREFROM, ITS INCLUSION WOULD BE LEGISLATION, AND THIS OFFICE IS WITHOUT AUTHORITY TO LEGISLATE.