A-3402, JULY 30, 1924, 4 COMP. GEN. 129

A-3402: Jul 30, 1924

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SEIZURE AND SALE OF VEHICLES BY CUSTOMS SERVICE - CLAIMS FOR PROCEEDS CLAIMANTS ASSERTING AN INTEREST IN THE PROCEEDS RECEIVED FROM THE SALE OF VEHICLES SEIZED FOR VIOLATION OF THE CUSTOMS LAWS ARE REQUIRED BY THE ACT OF SEPTEMBER 21. FAILURE TO DO SO WITHIN THE TIME LIMIT FORFEITS ANY RIGHTS CLAIMANTS MAY HAVE TO THE PROCEEDS THEREOF. WHEREIN WAS DISALLOWED ITS CLAIM FOR $46.86. THE ASSISTANT SECRETARY OF THE TREASURY STATED: IT APPEARS FROM THE REPORT OF THE CUSTOMS OFFICERS THAT THE SAID AUTOMOBILE WAS APPRAISED AT A VALUE OF LESS THAN $1. THAT THE FORFEITURE WAS INCURRED WITHOUT WILLFUL NEGLIGENCE OR INTENT TO DEFRAUD UPON ITS PART: THAT AT THE TIME OF THE SEIZURE AND SALE IT DID NOT KNOW AND WAS NOT IN A POSITION TO KNOW OF SUCH SEIZURE AND FORFEITURE.

A-3402, JULY 30, 1924, 4 COMP. GEN. 129

SEIZURE AND SALE OF VEHICLES BY CUSTOMS SERVICE - CLAIMS FOR PROCEEDS CLAIMANTS ASSERTING AN INTEREST IN THE PROCEEDS RECEIVED FROM THE SALE OF VEHICLES SEIZED FOR VIOLATION OF THE CUSTOMS LAWS ARE REQUIRED BY THE ACT OF SEPTEMBER 21, 1922, 42 STAT. 986, TO MAKE APPLICATION TO THE SECRETARY OF THE TREASURY WITHIN THREE MONTHS AFTER DATE OF SALE, AND FAILURE TO DO SO WITHIN THE TIME LIMIT FORFEITS ANY RIGHTS CLAIMANTS MAY HAVE TO THE PROCEEDS THEREOF. AN APPLICATION FILED WITH THE COLLECTOR OF CUSTOMS DOES NOT STOP THE RUNNING OF THE STATUTORY LIMIT.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 30, 1924:

THE AUTOMOBILE FINANCE CO. HAS APPLIED FOR REVIEW OF SETTLEMENT NO. 017896, OF MAY 12, 1924, WHEREIN WAS DISALLOWED ITS CLAIM FOR $46.86, REPRESENTING THE NET PROCEEDS OF THE SALE OF ONE FORD TOURING CAR, 1919 MODEL, ENGINE NO. 2841312, SEIZED, FORFEITED, AND SOLD BY THE CUSTOMS AUTHORITIES FOR VIOLATION OF THE CUSTOMS LAWS, HAVING BEEN SEIZED ON MAY 15, 1923, AND SOLD ON JUNE 27, 1923, BECAUSE OF ITS BEING USED "IN THE TRANSPORTATION OF 42 BOTTLES OF SMUGGLED MEXICAN LIQUOR," THE SAID PROCEEDS OF SALE BEING REPORTED AS HAVING BEEN DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

IN LETTER TO THIS OFFICE OF JANUARY 12, 1924, THE ASSISTANT SECRETARY OF THE TREASURY STATED:

IT APPEARS FROM THE REPORT OF THE CUSTOMS OFFICERS THAT THE SAID AUTOMOBILE WAS APPRAISED AT A VALUE OF LESS THAN $1,000.00 AND ADVERTISED AND SOLD PURSUANT TO THE PROVISIONS OF SECTIONS 607 TO 609 OF THE TARIFF ACT OF 1922 AND THE NET PROCEEDS DEPOSITED IN THE TREASURY.

THE CLAIMANT HAS SHOWN TO THE SATISFACTION OF THE SECRETARY OF THE TREASURY THAT IT HAS A SUBSTANTIAL INTEREST IN THE SAID AUTOMOBILE; THAT THE FORFEITURE WAS INCURRED WITHOUT WILLFUL NEGLIGENCE OR INTENT TO DEFRAUD UPON ITS PART: THAT AT THE TIME OF THE SEIZURE AND SALE IT DID NOT KNOW AND WAS NOT IN A POSITION TO KNOW OF SUCH SEIZURE AND FORFEITURE; AND THAT WITHIN THREE MONTHS AFTER THE DATE OF SALE THE APPLICATION UNDER CONSIDERATION WAS FILED.

BY VIRTUE OF THE AUTHORITY VESTED IN THE SECRETARY OF THE TREASURY BY SECTION 613 OF THE TARIFF ACT OF 1922, THE FORFEITURE OF THE SAID AUTOMOBILE IS HEREBY REMITTED, AND IT IS ORDERED THAT THE NET PROCEEDS OF THE SALE THEREOF, AMOUNTING TO $46.86, BE RESTORED TO THE APPLICANT.

SECTION 606 OF THE TARIFF ACT OF 1922, ACT OF SEPTEMBER 21, 1922, 42 STAT. 985, REQUIRES AN APPRAISEMENT AT THE INSTANCE OF THE COLLECTOR OF CUSTOMS OF ANY VEHICLE SEIZED UNDER THE CUSTOMS LAWS; SECTION 607 OF THE SAME ACT REQUIRES PUBLICATION OF THE SEIZURE AND THE INTENTION TO FORFEIT AND SELL, IF THE VEHICLE IS NOT VALUED AT OVER $1,000; SECTION 608 PERMITS CLAIMS TO BE FILED BY PARTIES CLAIMING INTEREST IN THE SEIZED VEHICLE WITHIN 20 DAYS OF THE FIRST PUBLICATION OF NOTICE OF SEIZURE; SECTION 609 PROVIDES FOR DECLARATION OF FORFEITURE AND SALE AT PUBLIC AUCTION IF NO SUCH CLAIM IS FILED, AND SECTION 613 PROVIDES:

ANY PERSON CLAIMING ANY VESSEL, VEHICLE, MERCHANDISE, OR BAGGAGE, OR ANY INTEREST THEREIN, WHICH HAS BEEN FORFEITED AND SOLD UNDER THE PROVISIONS OF THIS ACT, MAY AT ANY TIME WITHIN THREE MONTHS AFTER THE DATE OF SALE APPLY TO THE SECRETARY OF THE TREASURY IF THE FORFEITURE AND SALE WAS UNDER THE CUSTOMS LAWS, OR TO THE SECRETARY OF COMMERCE IF THE FORFEITURE AND SALE WAS UNDER THE NAVIGATION LAWS, FOR A REMISSION OF THE FORFEITURE AND RESTORATION OF THE PROCEEDS OF SUCH SALE, OR SUCH PART THEREOF AS MAY BE CLAIMED BY HIM. UPON THE PRODUCTION OF SATISFACTORY PROOF THAT THE APPLICANT DID NOT KNOW OF THE SEIZURE PRIOR TO THE DECLARATION OR CONDEMNATION OF FORFEITURE, AND WAS IN SUCH CIRCUMSTANCES AS PREVENTED HIM FROM KNOWING OF THE SAME, AND THAT SUCH FORFEITURE WAS INCURRED WITHOUT ANY WILFUL NEGLIGENCE OR INTENTION TO DEFRAUD ON THE PART OF THE APPLICANT, THE SECRETARY OF THE TREASURY OR THE SECRETARY OF COMMERCE MAY ORDER THE PROCEEDS OF THE SALE, OR ANY PART THEREOF, RESTORED TO THE APPLICANT, AFTER DEDUCTING THE COST OF SEIZURE AND OF SALE, THE DUTIES, IF ANY, ACCRUING ON THE MERCHANDISE OR BAGGAGE, AND ANY SUM DUE ON A LIEN FOR FREIGHT, CHARGES, OR CONTRIBUTION IN GENERAL AVERAGE THAT MAY HAVE BEEN FILED. IF NO APPLICATION FOR SUCH REMISSION OR RESTORATION IS MADE WITHIN THREE MONTHS AFTER SUCH SALE, OR IF THE APPLICATION BE DENIED BY THE SECRETARY OF THE TREASURY OR THE SECRETARY OF COMMERCE, THE PROCEEDS OF SALE SHALL BE DISPOSED OF AS FOLLOWS:

(1) FOR THE PAYMENT OF ALL PROPER EXPENSES OF THE PROCEEDINGS OF FORFEITURE AND SALE, INCLUDING EXPENSES OF SEIZURE, MAINTAINING THE CUSTODY OF THE PROPERTY, ADVERTISING AND SALE, AND IF CONDEMNED BY A DECREE OF A DISTRICT COURT AND A BOND FOR SUCH COSTS WAS NOT GIVEN, THE COSTS AS TAXED BY THE COURT;

(2) FOR THE SATISFACTION OF LIENS FOR FREIGHT, CHARGES, AND CONTRIBUTIONS IN GENERAL AVERAGE, NOTICE OF WHICH HAS BEEN FILED WITH THE COLLECTOR ACCORDING TO LAW;

(3) FOR THE PAYMENT OF THE DUTIES ACCRUING ON SUCH MERCHANDISE OR BAGGAGE, IF THE SAME IS SUBJECT TO DUTY; AND

(4) THE RESIDUE SHALL BE DEPOSITED WITH THE TREASURER OF THE UNITED STATES AS A CUSTOMS OR NAVIGATION FINE.

THE REASON FOR THE DISALLOWANCE WAS AS FOLLOWS:

THE CAR WAS SOLD BY CUSTOMS OFFICERS ON JUNE 27, 1923, AFTER HAVING BEEN DULY ADVERTISED IN ACCORDANCE WITH THE LAW. NO CLAIM HAVING BEEN MADE FOR THE PROCEEDS OF THE SALE WITHIN THE REQUIRED TIME, IT WAS PROPERLY DEPOSITED IN THE TREASURY AND CAN NOW ONLY BE WITHDRAWN BY VIRTUE OF AN ACT OF CONGRESS.

CLAIMANT IN ITS AFFIDAVIT EXECUTED UNDER DATE OF DECEMBER 19, 1923,STATED:

THAT ON MAY 15, 1923, THIS CAR WAS SEIZED FROM GEORGE HANLEY AND DANIEL MUNOZ BY CUSTOMS OFFICER ROY HEARN AND IMMIGRATION OFFICER COTTINGHAM, FOR BEING USED IN THE TRANSPORTATION OF FORTY-TWO (42) BOTTLES OF SMUGGLED MEXICAN LIQUOR.

THAT THE CAR WAS SOLD ON JUNE 27TH, 1923, TO C. M. LOUGHLIN, OF PREMONT, TEXAS, THE PROCEEDS OF SAID SALE REVERTING TO THE TREASURY DEPARTMENT.

THAT THE AUTOMOBILE FINANCE COMPANY HAD NO KNOWLEDGE OF THIS CAR HAVING BEEN SEIZED UNTIL AFTER THE SALE OF THE CAR HAD BEEN MADE, ITS FIRST INFORMATION TO THIS EFFECT HAVING BEEN RECEIVED UNDER DATE OF JULY 14, 1923.

THAT UNDER DATE OF JULY 21ST, 1923, WE TOOK THIS MATTER UP WITH MR. ED COTULLA, ASSISTANT COLLECTOR, DISTRICT NO. 23, SAN ANTONIO, TEXAS, ADVISING HIM OF OUR MORTGAGE ON THE ABOVE-MENTIONED CAR, AND ON JULY 28TH, 1923, WE RECEIVED HIS ADVICES TO THE EFFECT THAT THE CAR HAD BEEN SOLD UNDER DATE OF JUNE 27TH, 1923.

IT IS NOT SHOWN WHEN THE AMOUNT OF $46.86 WAS DEPOSITED IN THE TREASURY, BUT PRESUMABLY SUCH DEPOSIT WAS NOT MADE UNTIL AFTER THREE MONTHS FROM THE DATE OF SALE, SECTION 613, OF THE ACT QUOTED, SUPRA, REQUIRING THE PROCEEDS TO BE HELD FOR THREE MONTHS, OR, IN THE WORDS OF THAT SECTION, THE PROCEEDS OF SALE SHALL BE DISPOSED OF AS DIRECTED, "IF NO APPLICATION FOR SUCH REMISSION OR RESTORATION IS MADE WITHIN THREE MONTHS AFTER SUCH SALE," ETC.

THE FACT THAT THE PROCEEDS WERE DEPOSITED IN THE TREASURY, PRESUMABLY AFTER THREE MONTHS FROM DATE OF SALE, INDICATES THAT CLAIMANT DID NOT MAKE APPLICATION TO THE SECRETARY OF THE TREASURY ,WITHIN THREE MONTHS AFTER THE DATE OF SALE" AS REQUIRED BY SECTION 613. TAKING THE MATTER UP WITH THE COLLECTOR WITHIN THREE MONTHS DOES NOT SATISFY THE REQUIREMENTS OF THE STATUTE, AND FAILURE TO MAKE PROPER APPLICATION WITHIN THREE MONTHS FORFEITS ANY RIGHTS OF CLAIMANT TO THE PROCEEDS OF THE SALE.