A-21274, APRIL 10, 1928, 7 COMP. GEN. 649

A-21274: Apr 10, 1928

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS WITHOUT ABATEMENT OR DEDUCTION AS PROVIDED IN SECTION 3617. EXPENSES OF SALE OF SUCH VEHICLES ARE CHARGEABLE TO THE APPROPRIATION MADE UNDER THE DEPARTMENT OF JUSTICE FOR THE PAYMENT OF SALARIES. 1928: THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION AS TO WHETHER THE APPROPRIATION . THE FIRST PART RELATING TO FORFEITURES THEREUNDER PROVIDES: WHENEVER ANY GOODS OR COMMODITIES FOR OR IN RESPECT WHEREOF ANY TAX IS OR SHALL BE IMPOSED. OR VESSELS PROPER OR INTENDED TO BE MADE USE OF FOR OR IN THE MAKING OF SUCH GOODS OR COMMODITIES ARE REMOVED. OR ARE DEPOSITED OR CONCEALED IN ANY PLACE. CONTAINING OR WHICH SHALL HAVE CONTAINED.

A-21274, APRIL 10, 1928, 7 COMP. GEN. 649

VEHICLES SEIZED AND FORFEITED UNDER SECTION 3450, REVISED STATUTES THE PROCEEDS DERIVED FROM THE SALE OF VEHICLES OR OTHER MEANS OF CONVEYANCE SEIZED AND FORFEITED UNDER SECTION 3450, REVISED STATUTES, ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS WITHOUT ABATEMENT OR DEDUCTION AS PROVIDED IN SECTION 3617, REVISED STATUTES. EXPENSES OF SALE OF SUCH VEHICLES ARE CHARGEABLE TO THE APPROPRIATION MADE UNDER THE DEPARTMENT OF JUSTICE FOR THE PAYMENT OF SALARIES, FEES, AND EXPENSES OF UNITED STATES MARSHALS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 10, 1928:

THERE IS FOR CONSIDERATION BY THIS OFFICE THE QUESTION AS TO WHETHER THE APPROPRIATION ,SALARIES, FEES, AND EXPENSES, UNITED STATES MARSHALS," SHOULD BE CHARGED WITH THE EXPENSES OF SALES OF VEHICLES SEIZED AND FORFEITED UNDER THE PROVISIONS OF SECTION 3450, REVISED STATUTES, OR WHETHER SUCH EXPENSES SHOULD BE DEDUCTED FROM THE PROCEEDS OF SALE OF SAID VEHICLES BEFORE BEING COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS, INTERNAL REVENUE COLLECTIONS.

THE PROVISIONS OF SECTION 3450, REVISED STATUTES, MAY CONVENIENTLY BE DIVIDED FOR THE PURPOSE OF THIS DECISION INTO THREE PARTS. THE FIRST PART RELATING TO FORFEITURES THEREUNDER PROVIDES:

WHENEVER ANY GOODS OR COMMODITIES FOR OR IN RESPECT WHEREOF ANY TAX IS OR SHALL BE IMPOSED, OR ANY MATERIALS, UTENSILS, OR VESSELS PROPER OR INTENDED TO BE MADE USE OF FOR OR IN THE MAKING OF SUCH GOODS OR COMMODITIES ARE REMOVED, OR ARE DEPOSITED OR CONCEALED IN ANY PLACE, WITH INTENT TO DEFRAUD THE UNITED STATES OF SUCH TAX, OR ANY PART THEREOF, ALL SUCH GOODS AND COMMODITIES, AND ALL SUCH MATERIALS, UTENSILS, AND VESSELS, RESPECTIVELY, SHALL BE FORFEITED; AND IN EVERY SUCH CASE ALL THE CASKS, VESSELS, CASES, OR OTHER PACKAGES WHATSOEVER, CONTAINING OR WHICH SHALL HAVE CONTAINED, SUCH GOODS OR COMMODITIES, RESPECTIVELY, AND EVERY VESSEL, BOAT, CART, CARRIAGE, OR OTHER CONVEYANCE WHATSOEVER, AND ALL HORSES OR OTHER ANIMALS, AND ALL THINGS USED IN THE REMOVAL OR FOR THE DEPOSIT OR CONCEALMENT THEREOF, RESPECTIVELY, SHALL BE FORFEITED. * * *

THERE IS NEXT A PROVISION RELATING TO THE IMPOSING OF A PENALTY AGAINST PERSONS ATTEMPTING TO EVADE PAYMENT OF INTERNAL REVENUE TAXES AS FOLLOWS:

* * * AND EVERY PERSON WHO REMOVES, DEPOSITS, OR CONCEALS, OR IS CONCERNED IN REMOVING, DEPOSITING, OR CONCEALING ANY GOODS OR COMMODITIES FOR OR IN RESPECT WHEREOF ANY TAX IS OR SHALL BE IMPOSED, WITH INTENT TO DEFRAUD THE UNITED STATES OF SUCH TAX OR ANY PART THEREOF, SHALL BE LIABLE TO A FINE OR PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS. * * *

THE REMAINING PROVISIONS OF THE SECTION, IN SO FAR AS HERE MATERIAL, ARE AS FOLLOWS:

* * * AND ALL BOILERS, STILLS, OR OTHER VESSELS, TOOLS, AND IMPLEMENTS USED IN DISTILLING OR RECTIFYING, AND FORFEITED UNDER ANY OF THE PROVISIONS OF THIS TITLE, AND ALL CONDEMNED MATERIAL, TOGETHER WITH ANY ENGINE OR OTHER MACHINERY CONNECTED THEREWITH, AND ALL EMPTY BARRELS, AND ALL GRAIN OR OTHER MATERIAL SUITABLE FOR DISTILLATION, SHALL, UNDER THE DIRECTION OF THE COURT IN WHICH THE FORFEITURE IS RECOVERED, BE SOLD AT PUBLIC AUCTION, AND THE PROCEEDS THEREOF, AFTER DEDUCTING THE EXPENSES OF SALE, SHALL BE DISPOSED OF ACCORDING TO LAW. * * *

THE LAST PART QUOTED PROVIDES THAT THERE MAY BE DEDUCTED THE EXPENSES OF SALE FROM THE PROCEEDS THEREOF, BUT, AS WILL BE NOTED, NOTHING IS SAID THEREIN WITH RESPECT TO SALES OF VEHICLES OR OTHER MEANS OF CONVEYANCE. THE CONVEYANCES ARE COVERED UNDER THE FIRST PART OF THE SECTION, IN WHICH A FORFEITURE OF THE SAME IS PROVIDED, AND WHILE IT IS EVIDENT THAT IN PROCEEDINGS FOR FORFEITURE THERE IS OF NECESSITY INVOLVED A SALE OR OTHER DISPOSITION OF THE ARTICLE AS THE COURT BEFORE WHICH THE PROCEEDINGS ARE HELD MAY DETERMINE, IT DOES NOT FOLLOW THAT THE EXPENSES OF SALE OF SEIZED AND FORFEITED VEHICLES SHOULD BE DEDUCTED FROM THE PROCEEDS OF THE SALE, AS IS PROVIDED WITH RESPECT TO THE SALES SPECIFICALLY SET FORTH IN THE LAST PART OF THE SECTION QUOTED.

IN A DECISION OF THIS OFFICE, 4 COMP. GEN. 594, IT WAS HELD THAT STORAGE CHARGES UPON VEHICLES SEIZED, FORFEITED, AND SOLD UNDER THE PROVISIONS OF SECTION 3450, REVISED STATUTES, ARE CHARGEABLE AGAINST THE APPROPRIATION OF THE DEPARTMENT OF JUSTICE FOR "SALARIES, FEES, AND EXPENSES OF MARSHALS, UNITED STATES COURTS.' OTHER EXPENSES IN CONNECTION WITH SEIZURE, KEEPING, FORFEITURE, AND SALE OF THE VEHICLES ARE IN NO DIFFERENT STATUS THAN STORAGE CHARGES PROPER.

SECTION 3617, REVISED STATUTES, PROVIDES:

THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES EXCEPT AS OTHERWISE PROVIDED IN THE NEXT SECTION, SHALL BE PAID BY THE OFFICER OR AGENT RECEIVING THE SAME INTO THE TREASURY, AT AS EARLY A DAY AS PRACTICABLE, WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER. BUT NOTHING HEREIN SHALL AFFECT ANY PROVISION RELATING TO THE REVENUES OF THE POST OFFICE DEPARTMENT.

IN THE SALE OF VEHICLES OR OTHER MEANS OF CONVEYANCE SEIZED AND FORFEITED UNDER THE PROVISIONS OF SECTION 3450, REVISED STATUTES, THERE IS NOT INVOLVED THE SALE OF OLD MATERIAL, CONDEMNED STORES, SUPPLIES, OR OTHER PUBLIC PROPERTY COVERED BY SECTION 3618, REVISED STATUTES, THE PROCEEDS OF WHICH ARE PROPERLY CHARGEABLE WITH THE EXPENSES OF THE SALE PRIOR TO THEIR BEING COVERED INTO THE TREASURY AS PROVIDED BY THE ACT OF JUNE 8, 1896, 29 STAT. 268. THE PROCEEDS OF THE SALE OF A VEHICLE SEIZED AND FORFEITED UNDER SECTION 3450, REVISED STATUTES, ARE "MONEYS RECEIVED * * * FOR THE USE OF THE UNITED STATES," WITHIN THE MEANING OF SECTION 3617, REVISED STATUTES, SUPRA, AND ARE PROPERLY FOR DISPOSITION AS PROVIDED THEREIN "WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER.' SEE GOLDSMITH- GRANT COMPANY V. UNITED STATES, 254 U.S. 505, IN WHICH IT WAS HELD THAT THE FORFEITURE UNDER SECTION 3450, REVISED STATUTES, WAS ABSOLUTE AND THAT NO CLAIM OF AN INNOCENT THIRD PARTY CLAIMING AN INTEREST IN THE ARTICLE COULD BE CONSIDERED AND PAID FROM THE PROCEEDS OF THE SALE.

ACCORDINGLY, IT MUST BE HELD THAT EXPENSES OF SALES OF VEHICLES SEIZED AND FORFEITED UNDER THE PROVISIONS OF SECTION 3450, REVISED STATUTES, ARE NOT CHARGEABLE TO THE PROCEEDS OF THE SALE OF SUCH VEHICLES. SUCH PROCEEDS ARE FOR DISPOSITION UNDER THE PROVISIONS OF SECTION 3617, REVISED STATUTES, WITHOUT DEDUCTION OR ABATEMENT. THE EXPENSES OF THE SEIZURE AND SALE IN SUCH CASES SHOULD BE CHARGED TO THE APPROPRIATION MADE FOR THE SALARIES, FEES, AND EXPENSES OF UNITED STATES MARSHALS.