A-14428, AUGUST 13, 1926, 6 COMP. GEN. 108

A-14428: Aug 13, 1926

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UNITED STATES - FEES - DEPOSITIONS TAKEN FOR BOARD OF TAX APPEALS THE FEES TO WHICH A UNITED STATES COMMISSIONER IS ENTITLED FOR TAKING AND CERTIFYING DEPOSITIONS IN A TAX APPEAL CASE UNDER AUTHORITY FROM THE BOARD OF TAX APPEALS ON BEHALF OF THE COMMISSIONER OF INTERNAL REVENUE ARE NOT PAYABLE FROM THE JUDICIAL APPROPRIATION FOR "FEES OF COMMISSIONERS. " BUT ARE PAYABLE FROM THE APPROPRIATION FOR EXPENSES OF ASSESSING AND COLLECTING THE INTERNAL REVENUE TAXES AS DIRECTED BY SECTION 909 (1) OF THE REVENUE ACT OF 1924. IN WHICH WAS DISALLOWED HIS CLAIM FOR $46.90 AS FEES FOR TAKING AND CERTIFYING DEPOSITIONS. I HAVE THE HONOR TO ADVISE YOU THAT UNDER DATE OF OCTOBER 2. AN ORDER TO TAKE DEPOSITIONS WAS ISSUED IN THE MATTER OF THE APPEAL OF THE ESTATE OF FRANK G.

A-14428, AUGUST 13, 1926, 6 COMP. GEN. 108

COMMISSIONERS, UNITED STATES - FEES - DEPOSITIONS TAKEN FOR BOARD OF TAX APPEALS THE FEES TO WHICH A UNITED STATES COMMISSIONER IS ENTITLED FOR TAKING AND CERTIFYING DEPOSITIONS IN A TAX APPEAL CASE UNDER AUTHORITY FROM THE BOARD OF TAX APPEALS ON BEHALF OF THE COMMISSIONER OF INTERNAL REVENUE ARE NOT PAYABLE FROM THE JUDICIAL APPROPRIATION FOR "FEES OF COMMISSIONERS, UNITED STATES COURTS," BUT ARE PAYABLE FROM THE APPROPRIATION FOR EXPENSES OF ASSESSING AND COLLECTING THE INTERNAL REVENUE TAXES AS DIRECTED BY SECTION 909 (1) OF THE REVENUE ACT OF 1924, AS AMENDED BY THE ACT OF FEBRUARY 26, 1926, 44 STAT. 108.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 13, 1926:

ROBERT E. FOOT, UNITED STATES COMMISSIONER, REQUESTED MAY 4, 1926, REVIEW OF SETTLEMENT OF MARCH 27, 1926, NO. 0112998-J, IN WHICH WAS DISALLOWED HIS CLAIM FOR $46.90 AS FEES FOR TAKING AND CERTIFYING DEPOSITIONS, THE CLAIM BEING ITEMIZED AS FOLLOWS:

THE UNITED STATES, BOARD OF TAX APPEALS, TO ROBERT E. FOOT, UNITED STATES COMMISSIONER, DR., 224 POST OFFICE BUILDING, DENVER, COLORADO:

FOR SERVICES IN TAKING DEPOSITION ON BEHALF OF THE GOVERNMENT IN THE CASE OF THE UNITED STATES. IN RE APPEAL OF THE ESTATE OF FRANK G. CURTIS---

DATE OF DEPOSITION OR HEARING, OCTOBER 10, 12, AND 13,

3 DAYS ATTENDANCE TAKING TESTIMONY AT $3.00 PER DAY

UNDER ORDER OF THE BOARD -------------------------- $9.00

1 DAY EXTRA ON OBTAINING SIGNATURES TO

DEPOSITIONS --------------------------------------- 3.00

TAKING AND CERTIFYING DEPOSITIONS, 340 FOLIOS AT

10 CENTS FOR EACH FOLIO (INST. SEC. 1381 O-P) ----- 34.00

ADMINISTERING OATHS TO 9 WITNESSES ------------------ .90

46.90

THE FOLLOWING ADMINISTRATIVE REPORT ON THIS CLAIM HAS BEEN SUBMITTED BY THE CHAIRMAN, UNITED STATES BOARD OF TAX APPEALS:

IN RESPONSE TO YOUR INQUIRY OF JUNE 24, 1926, I HAVE THE HONOR TO ADVISE YOU THAT UNDER DATE OF OCTOBER 2, 1925, AN ORDER TO TAKE DEPOSITIONS WAS ISSUED IN THE MATTER OF THE APPEAL OF THE ESTATE OF FRANK G. CURTIS. THE ORDER DIRECTED THAT THESE DEPOSITIONS BE TAKEN ON BEHALF OF THE COMMISSIONER OF INTERNAL REVENUE BEFORE SUCH PERSONS AS MIGHT BE AGREED UPON BY AND BETWEEN THE PARTIES TO SAID APPEAL OR THEIR RESPECTIVE ATTORNEYS. THE WITNESSES WERE T. A. DINES, CASSIUS A. FISCHER, AND KARL G. SCHUYLER, AND A COPY OF SAID ORDER IS INCLOSED HEREWITH FOR YOUR INFORMATION.

THE RECORD SHOWS THAT THIS TESTIMONY WAS TAKEN BEFORE UNITED STATES COMMISSIONER ROBERT E. FOOT. IT WAS SUPPOSED THAT HIS CHARGE FOR THE SERVICES THUS RENDERED WOULD BE MADE IN HIS REGULAR QUARTERLY ACCOUNT AGAINST THE UNITED STATES, AS THE SERVICE WAS RENDERED FOR A UNITED STATES OFFICIAL. MR. FOOT SENT HIS BILL TO THE BOARD AND IT WAS RETURNED TO HIM WITH THE SUGGESTION, THAT THE MATTER BE TAKEN UP WITH THE ACCOUNTING OFFICIALS OF THE BUREAU OF INTERNAL REVENUE.

AS THIS SERVICE WAS RENDERED ON BEHALF OF THE UNITED STATES, IT IS RECOMMENDED THAT FAVORABLE ACTION BE TAKEN ON THE CLAIMED FILED BY MR. FOOT.

SECTION 900 (I) OF THE REVENUE ACT OF 1924, 43 STAT. 338, HAS BEEN AMENDED AND RENUMBERED AS SECTIONS 908 AND 909 BY SECTION 1000 OF THE REVENUE ACT OF 1926, 44 STAT. 108, WHICH SECTIONS NOW PROVIDE:

SEC. 908. FOR THE EFFICIENT ADMINISTRATION OF THE FUNCTIONS VESTED IN THE BOARD OR ANY DIVISION THEREOF, ANY MEMBER OF THE BOARD, OR ANY EMPLOYEE OF THE BOARD DESIGNATED IN WRITING FOR THE PURPOSE BY THE CHAIRMAN, MAY ADMINISTER OATHS, AND ANY MEMBER OF THE BOARD MAY EXAMINE WITNESSES AND REQUIRE, BY SUBPOENA ORDERED BY THE BOARD OR ANY DIVISION THEREOF AND SIGNED BY THE MEMBER, (1) THE ATTENDANCE AND TESTIMONY OF WITNESSES, AND THE PRODUCTION OF ALL NECESSARY RETURNS, BOOKS, PAPERS, DOCUMENTS, CORRESPONDENCE, AND OTHER EVIDENCE, FROM ANY PLACE IN THE UNITED STATES AT ANY DESIGNATED PLACE OF HEARING, OR (2) THE TAKING OF A DEPOSITION BEFORE ANY DESIGNATED INDIVIDUAL COMPETENT TO ADMINISTER OATHS UNDER THIS ACT. IN THE CASE OF A DEPOSITION THE TESTIMONY SHALL BE REDUCED TO WRITING BY THE INDIVIDUAL TAKING THE DEPOSITION OR UNDER HIS DIRECTION AND SHALL THEN BE SUBSCRIBED BY THE DEPONENT.

SEC. 909. (A) ANY WITNESS SUMMONED OR WHOSE DEPOSITION IS TAKEN UNDER SECTION 908 SHALL RECEIVE THE SAME FEES AND MILEAGE AS WITNESSES IN COURTS OF THE UNITED STATES. SUCH FEES AND MILEAGE AND THE EXPENSES OF TAKING ANY SUCH DEPOSITION SHALL BE PAID AS FOLLOWS:

(1) IN THE CASE OF WITNESSES FOR THE COMMISSIONER, SUCH PAYMENTS SHALL BE MADE BY THE SECRETARY OUT OF ANY MONEYS APPROPRIATED FOR THE COLLECTION OF INTERNAL-REVENUE TAXES, AND MAY BE MADE IN ADVANCE.

(2) IN THE CASE OF ANY OTHER WITNESSES, SUCH PAYMENTS SHALL BE MADE, SUBJECT TO RULES PRESCRIBED BY THE BOARD, BY THE PARTY AT WHOSE INSTANCE THE WITNESS APPEARS OR THE DEPOSITION IS TAKEN.

(B) THIS SECTION SHALL TAKE EFFECT AS OF JUNE 2, 1924, IN THE CASE OF FEES, MILEAGE, OR EXPENSES ACCRUED PRIOR TO, BUT REMAINING UNPAID AT THE TIME OF, THE ENACTMENT OF THE REVENUE ACT OF 1926.

WITH REFERENCE TO THOSE AUTHORIZED TO ADMINISTER OATHS UNDER THE REVENUE ACT OF 1924, SECTION 1002 (D) THEREOF, 43 STAT. 339, REENACTED VERBATIM AS SECTION 1102 (D) OF THE REVENUE ACT OF 1926, 44 STAT. 112, PROVIDES:

(D) ANY OATH OR AFFIRMATION REQUIRED BY THE PROVISIONS OF THIS ACT OR REGULATIONS MADE UNDER AUTHORITY THEREOF, MAY BE ADMINISTERED BY ANY OFFICER AUTHORIZED TO ADMINISTER OATHS FOR GENERAL PURPOSES BY THE LAW OF THE UNITED STATES OR OF ANY STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES, WHEREIN SUCH OATH OR AFFIRMATION IS ADMINISTERED, OR BY ANY CONSULAR OFFICER OF THE UNITED STATES.

SECTION 1018 OF THE REVENUE ACT OF 1924 AND SECTION 1115 OF THE REVENUE ACT OF 1926 ALSO REENACT SECTION 3165, REVISED STATUTES, AS FOLLOWS:

SEC. 3165. EVERY COLLECTOR, DEPUTY COLLECTOR, INTERNAL-REVENUE AGENT, AND INTERNAL-REVENUE OFFICER ASSIGNED TO DUTY UNDER AN INTERNAL REVENUE AGENT, IS AUTHORIZED TO ADMINISTER OATHS AND TO TAKE EVIDENCE TOUCHING ANY PART OF THE ADMINISTRATION OF THE INTERNAL-REVENUE LAWS WITH WHICH HE IS CHARGED, OR WHERE SUCH OATHS AND EVIDENCE ARE AUTHORIZED BY LAW OR REGULATION AUTHORIZED BY LAW TO BE TAKEN.

THE ORDER OF THE BOARD OF THE TAX APPEALS OF OCTOBER 2, 1925, AUTHORIZING THE TAKING OF THE DEPOSITIONS IN THIS CASE DID NOT DESIGNATE THE PERSON BEFORE WHOM THEY WERE TO BE TAKEN, AS WOULD APPEAR TO BE THE INTENT OF SECTION 908 (2) OF THE REVENUE ACT OF 1924, AS AMENDED, SUPRA, BUT AUTHORIZED THE DEPOSITIONS TO BE TAKEN "AT SUCH PLACES AND BEFORE SUCH PERSONS AS MAY BE AGREED UPON BY AND BETWEEN THE PARTIES TO SAID APPEAL AND THEIR RESPECTIVE ATTORNEYS.'

IT IS ASSUMED FROM THE WORDING OF THE ORDER THAT NO MEMBER OR DESIGNATED EMPLOYEE OF THE BOARD OF TAX APPEALS, NOR ANY OFFICER OR EMPLOYEE OF THE BUREAU OF INTERNAL REVENUE WITHIN THE PURVIEW OF SECTION 3165, REVISED STATUTES, SUPRA, WAS AVAILABLE FOR TAKING THE DEPOSITIONS IN THIS CASE AT LESS EXPENSE TO THE UNITED STATES THAN THE FEE BILL OF THE UNITED STATES COMMISSIONER. SEE A-14517, JULY 9, 1926.

THE DEPOSITIONS HAVING BEEN TAKEN UNDER AUTHORITY FROM THE BOARD OF TAX APPEALS, NEITHER THE DEPARTMENT OF JUSTICE NOR THE UNITED STATES COURTS HAD TECHNICALLY ANY INTEREST IN OR CONTROL OVER SUCH DEPOSITIONS. THEREFORE, THE APPROPRIATION UNDER THE DEPARTMENT OF JUSTICE FOR "FEES OF COMMISSIONERS, UNITED STATES COURTS," IS NOT CHARGEABLE WITH THE COST OF SUCH DEPOSITIONS. 13 COMP. DEC. 442. SEE ALSO 26 COMP. DEC. 1039. THE SETTLEMENT WAS, ACCORDINGLY, CORRECT IN SO FAR AS IT HELD THAT THE CLAIM WAS NOT PAYABLE UNDER THAT APPROPRIATION.

HOWEVER, THE DEPOSITIONS IN THIS CASE WERE DULY AUTHORIZED BY THE BOARD TO BE TAKEN AND WERE TAKEN BEFORE AN OFFICER AUTHORIZED TO ADMINISTER OATHS UNDER THE REVENUE ACTS, AND THE OFFICER WHO PERFORMED THE NECESSARY SERVICES INCIDENT THERETO IS ENTITLED TO PAYMENT FOR THE SERVICES RENDERED. THE FEES CHARGED ARE REASONABLE, BEING AT THE RATES AUTHORIZED BY THE ACT OF MAY 28, 1896, 29 STAT. 184, TO BE CHARGED BY UNITED STATES COMMISSIONERS.

THE ORDER FOR TAKING THE DEPOSITIONS HAVING BEEN ISSUED UPON THE APPLICATION OF THE COMMISSIONER OF INTERNAL REVENUE, THE EXPENSES INCURRED IN CONNECTION THEREWITH ARE PAYABLE IN ACCORDANCE WITH SECTION 909 (A) (1) OF THE REVENUE ACT OF 1924, AS AMENDED, OUT OF THE MONEYS APPROPRIATED FOR THE COLLECTION OF INTERNAL-REVENUE TAXES. THE DECISION OF MARCH 24, 1925, A-8269, IN SO FAR AS IT HELD THAT, UNDER THE REVENUE ACT OF 1924, THE EXPENSES OF WITNESSES IN HEARINGS BEFORE THE BOARD OF TAX APPEALS SHOULD BE PAID FROM THE FUNDS ALLOTTED TO OR APPROPRIATED FOR THE EXPENSES OF THE BOARD, IS NO LONGER APPLICABLE TO SUCH EXPENSES ACCRUED PRIOR TO BUT REMAINING UNPAID FEBRUARY 26, 1926, THE DATE OF THE REVENUE ACT OF 1926--- SEE SECTION 909 (B) OF THE REVENUE ACT OF 1924, AS AMENDED, SUPRA.

UPON REVIEW THERE IS CERTIFIED DUE THE CLAIMANT $46.90, PAYABLE FROM THE APPROPRIATION ,COLLECTING THE INTERNAL REVENUE, 1926.'