A-23199, JULY 20, 1928, 8 COMP. GEN. 22

A-23199: Jul 20, 1928

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UNITED STATES - FEES - ACKNOWLEDGMENTS IN INTERNAL REVENUE CASES CLAIMS OF UNITED STATES COMMISSIONERS FOR FEES ON ACCOUNT OF SERVICES PERFORMED FOR THE GOVERNMENT ARE REQUIRED. WHEREIN WAS DISALLOWED HIS CLAIM FOR $141 AS FEES AT THE RATE OF 75 CENTS EACH FOR TAKING ACKNOWLEDGMENTS TO CERTIFICATES OF DISCHARGE OF TAX LIENS DURING THE PERIOD JULY 15 TO DECEMBER 30. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THERE WAS NO AUTHORITY FOR PAYMENT OF THE FEES. IT APPEARS TO HAVE BECOME NECESSARY FOR THE COLLECTOR OF INTERNAL REVENUE AT PHILADELPHIA. A SIMILAR CONCLUSION WAS REACHED IN AN OPINION DATED NOVEMBER 5. THE ACKNOWLEDGMENTS HERE IN QUESTION WERE TAKEN BEFORE COMMISSIONER KNOX. CLAIM WAS SUBMITTED TO THE BUREAU OF INTERNAL REVENUE FOR 75 CENTS FOR EACH ACKNOWLEDGMENT.

A-23199, JULY 20, 1928, 8 COMP. GEN. 22

COMMISSIONERS, UNITED STATES - FEES - ACKNOWLEDGMENTS IN INTERNAL REVENUE CASES CLAIMS OF UNITED STATES COMMISSIONERS FOR FEES ON ACCOUNT OF SERVICES PERFORMED FOR THE GOVERNMENT ARE REQUIRED, UNDER SECTION 856, REVISED STATUTES, TO BE SETTLED IN THE GENERAL ACCOUNTING OFFICE. SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, DOES NOT AUTHORIZE A FEE TO UNITED STATES COMMISSIONERS FOR TAKING AN ACKNOWLEDGMENT OF DISCHARGE OF TAX LIENS.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 20, 1928:

ROGER KNOX, UNITED STATES COMMISSIONER, REQUESTED MAY 26, 1928, REVIEW OF SETTLEMENT NO. 017743, DATED APRIL 19, 1928, WHEREIN WAS DISALLOWED HIS CLAIM FOR $141 AS FEES AT THE RATE OF 75 CENTS EACH FOR TAKING ACKNOWLEDGMENTS TO CERTIFICATES OF DISCHARGE OF TAX LIENS DURING THE PERIOD JULY 15 TO DECEMBER 30, 1927, UNDER THE INTERNAL REVENUE LAWS OF THE UNITED STATES. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THERE WAS NO AUTHORITY FOR PAYMENT OF THE FEES.

IT APPEARS TO HAVE BECOME NECESSARY FOR THE COLLECTOR OF INTERNAL REVENUE AT PHILADELPHIA, PA., TO EXECUTE CERTAIN ACKNOWLEDGMENTS OF DISCHARGE OF TAX LIENS AND HE REQUESTED ADVICE OF THE UNITED STATES ATTORNEY, WHO ADVISED HIM THAT THE ACT OF MAY 19, 1893, OF THE STATE OF PENNSYLVANIA GAVE AUTHORITY FOR ACKNOWLEDGMENTS TO DEEDS TO JUDGES OF THE SUPREME COURT, JUDGES OF THE COURT OF COMMON PLEAS, RECORDERS OF DEEDS, PROTHONOTARIES, OR CLERKS OF ANY COURT OF RECORD, JUSTICES OF THE PEACE, AND NOTARIES PUBLIC, AND THAT THE ACT OF APRIL 21, 1869, OF SAID STATE, AUTHORIZED THE USE IN ANY COURT OF SAID STATE OF OATHS OR AFFIRMATIONS OR DEPOSITIONS BEFORE UNITED STATES COMMISSIONERS. THE UNITED STATES ATTORNEY EXPRESSED THE OPINION THAT THE UNITED STATES COMMISSIONER OR THE UNITED STATES CLERK OF COURT, OR ONE OF HIS DEPUTIES, HAD AUTHORITY UNDER THE LAWS OF PENNSYLVANIA TO TAKE ACKNOWLEDGMENTS, AND A SIMILAR CONCLUSION WAS REACHED IN AN OPINION DATED NOVEMBER 5, 1927, OF THE GENERAL COUNSEL FOR THE BUREAU OF INTERNAL REVENUE.

THE ACKNOWLEDGMENTS HERE IN QUESTION WERE TAKEN BEFORE COMMISSIONER KNOX, AND CLAIM WAS SUBMITTED TO THE BUREAU OF INTERNAL REVENUE FOR 75 CENTS FOR EACH ACKNOWLEDGMENT, NOTWITHSTANDING SECTION 856, REVISED STATUTES, AS AMENDED BY THE ACT OF MAY 28, 1896, 29 STAT. 179, 186, WHICH PROVIDES THAT:

THE FEES OF * * * COMMISSIONERS, IN CASES WHERE THE UNITED STATES ARE LIABLE TO PAY THE SAME, SHALL BE PAID ON SETTLING THEIR ACCOUNTS AT THE TREASURY.

THE ACT OF FEBRUARY 22, 1875, 18 STAT. 333, AS AMENDED BY THE ACT OF MAY 28, 1896, 29 STAT. 184, PROVIDED THAT:

UNITED STATES COMMISSIONERS SHALL FORWARD THEIR ACCOUNTS, DULY VERIFIED BY OATH, TO THE DISTRICT ATTORNEYS OF THEIR RESPECTIVE DISTRICTS, BY WHOM THEY SHALL BE SUBMITTED FOR APPROVAL IN OPEN COURT, AND THE COURT SHALL PASS UPON THE SAME IN THE MANNER AFORESAID (AS MAY BE ACCORDING TO LAW AND JUST).

THE ACT OF MAY 29, 1928, 45 STAT. 998, DISPENSED WITH THE APPROVAL BY THE COURT OF THE ACCOUNTS OF COMMISSIONERS BUT THE PROCEDURE STILL MAINTAINS THAT CLAIMS OF COMMISSIONERS FOR FEES ARE TO BE SUBMITTED THROUGH THE OFFICE OF THE UNITED STATES ATTORNEY TO THE DEPARTMENT OF JUSTICE FOR ADMINISTRATIVE APPROVAL OR DISAPPROVAL AND FOR TRANSMISSION TO THIS OFFICE FOR SETTLEMENT AS CLAIMS.

ASIDE FROM THE FAILURE TO FOLLOW THE PROPER PROCEDURE IN THE SUBMISSION OF THIS CLAIM FOR FEES FOR TAKING ACKNOWLEDGMENTS IN INTERNAL-REVENUE CASES, THERE IS NOTHING IN SECTION 21 OF THE ACT OF MAY 28, 1896, 29 STAT. 184, PRESCRIBING AND FIXING THE FEES OF UNITED STATES COMMISSIONERS, WHICH WOULD AUTHORIZE THE PAYMENT OF A FEE OF 75 CENTS EACH, OR ANY OTHER SUM FOR TAKING ACKNOWLEDGMENTS IN INTERNAL REVENUE CASES. AN ACKNOWLEDGMENT IS A PROCEEDING PROVIDED BY STATUTE WHEREBY A PERSON WHO HAS EXECUTED AN INSTRUMENT MAY, BY GOING BEFORE A COMPETENT OFFICER OR COURT AND DECLARING IT TO BE HIS ACT AND DEED, ENTITLE IT TO BE RECORDED OR RECEIVED IN EVIDENCE, OR BOTH, WITHOUT FURTHER PROOF OF EXECUTION. WHEN AN ACKNOWLEDGMENT IS PRESCRIBED BY STATUTE, WITHOUT DECLARING OF WHAT IT SHALL CONSIST, IT IS MEANT THAT THE PERSON EXECUTING THE INSTRUMENT MUST APPEAR BEFORE A DULY AUTHORIZED OFFICER AND STATE THAT HE EXECUTED IT. SEE PUNCHARD V. MASTERSON, 101 S.W. 204, QUOTING THE DEFINITION IN 1 CYC. 512.

SECTION 3165, REVISED STATUTES, AS AMENDED, AND WHICH WAS REENACTED BY SECTION 1115 OF THE ACT OF FEBRUARY 26, 1926, 44 STAT. 117, PROVIDED THAT:

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 AUTHORITY TO ADMINISTER OATHS AND TAKE EVIDENCE "TOUCHING ANY PART OF THE ADMINISTRATION OF THE INTERNAL REVENUE LAWS" IS VERY BROAD AND A DISCHARGE OF A TAX LIEN UNDER THE INTERNAL REVENUE LAWS WOULD APPEAR TO BE A PART OF THE ADMINISTRATION OF SAID LAWS. HOWEVER, IT IS UNNECESSARY, AT THIS TIME, TO DECIDE WHETHER THE AUTHORITY TO "ADMINISTER OATHS AND TAKE EVIDENCE" INCLUDES THE TAKING OF ACKNOWLEDGMENTS FOR DISCHARGE OF TAX LIENS BECAUSE THE FACT REMAINS THAT THERE IS NO AUTHORITY IN THE STATUTES FIXING THE FEES OF UNITED STATES COMMISSIONERS FOR CHARGING THE UNITED STATES FOR TAKING SUCH ACKNOWLEDGMENTS. THIS CONCLUSION DOES NOT IN ANY MANNER HAMPER THE EXECUTION OF THE INTERNAL REVENUE LAWS FOR THE REASON, AS POINTED OUT BY THE GENERAL COUNSEL FOR THE BUREAU OF INTERNAL REVENUE IN HIS OPINION OF NOVEMBER 5, 1927, NOTARIES PUBLIC ARE AUTHORIZED TO TAKE ACKNOWLEDGMENTS, AND IT WAS SUGGESTED THAT THE SERVICES OF A NOTARY"COULD BE UTILIZED WITH ADVANTAGE BY THE COLLECTOR TO TAKE ALL THE ACKNOWLEDGMENTS * * * EXECUTED BY SUCH COLLECTOR," AND ATTENTION WAS ALSO CALLED TO ACCOUNTS AND COLLECTION CIRCULAR NO. 345, DATED FEBRUARY 24, 1923, BUREAU OF INTERNAL REVENUE, TREASURY DEPARTMENT, TO THE EFFECT THAT CLERKS OF UNITED STATES DISTRICT COURTS WERE AUTHORIZED AND REQUIRED TO ADMINISTER OATHS, ETC., FOR THE UNITED STATES WITHOUT CHARGE. IN OTHER WORDS, IF IT SHOULD BE ADMINISTRATIVELY CONCLUDED THAT SECTION 3165, REVISED STATUTES, AS AMENDED, DOES NOT AUTHORIZE COLLECTORS, DEPUTY COLLECTORS, INTERNAL-REVENUE AGENTS, AND INTERNAL REVENUE OFFICERS TO TAKE ACKNOWLEDGMENTS FOR DISCHARGE OF TAX LIENS AS A PART OF THEIR OFFICIAL DUTIES FOR WHICH THEY RECEIVE SALARIES FROM THE UNITED STATES, THE LAW HAS OTHERWISE MADE PROVISION FOR THE SECURING OF SUCH ACKNOWLEDGMENTS WITHOUT EXPENSE TO THE UNITED STATES.

IN VIEW OF THE FACT THAT THE LAW HAS MADE PROVISION FOR SECURING ACKNOWLEDGMENTS TO DISCHARGE TAX LIENS WITHOUT EXPENSE TO THE UNITED STATES AND HAS MADE NO PROVISION FOR PAYMENT OF FEES TO COMMISSIONERS FOR TAKING SUCH ACKNOWLEDGMENTS THE DISALLOWANCE OF THE INSTANT CLAIM MUST BE AND IS SUSTAINED.

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