A-56266, JULY 16, 1934, 14 COMP. GEN. 46

A-56266: Jul 16, 1934

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NO REFUND IS AUTHORIZED WHERE THE LICENSEE ABANDONS HIS RIGHT TO OPERATE OR VOLUNTARILY FAILS TO EXERCISE THE FULL PRIVILEGE GRANTED. OR WHERE THE LICENSE IS LEGALLY AND PROPERLY REVOKED OR WITHDRAWN. ADVICE IS REQUESTED AS TO THE LEGALITY OF REFUNDING LICENSE FEES OR TAXES TO PERSONS LICENSED UNDER SECTION 31 (B) OF THE ACT OF JULY 1. DURING THE PERIOD FOR WHICH LICENSES WERE ISSUED. OPERATED LESS MILES THAN WAS CONTEMPLATED AT THE TIME SCHEDULE AND ESTIMATED TOTAL NUMBER OF MILES TO BE OPERATED WERE APPROVED BY THE PUBLIC UTILITIES COMMISSION. OR CALLING IN THE DISTRICT OF COLUMBIA FOR WHICH A LICENSE FEE OR TAX IS IMPOSED WITHOUT FIRST OBTAINING A LICENSE SO TO DO. FEES ARE PRESCRIBED FOR CARRYING ON THE DIFFERENT VOCATIONS.

A-56266, JULY 16, 1934, 14 COMP. GEN. 46

TAXES - LICENSE FEES - REFUNDS A LICENSE FEE DETERMINED AND PAID ACCORDING TO LAW FOR THE PRIVILEGE OF EXERCISING CERTAIN CALLINGS, PROFESSIONS, OR VOCATIONS IN THE DISTRICT OF COLUMBIA MAY BE RECOVERED ONLY UPON FAILURE OF THE PRIVILEGE DUE TO FACTS AND CIRCUMSTANCES BEYOND THE CONTROL OF THE LICENSEE AND WITHOUT HIS CONSENT. NO REFUND IS AUTHORIZED WHERE THE LICENSEE ABANDONS HIS RIGHT TO OPERATE OR VOLUNTARILY FAILS TO EXERCISE THE FULL PRIVILEGE GRANTED, OR, IN THE ABSENCE OF A STATUTE, VOLUNTARILY SURRENDERS HIS LICENSE, OR WHERE THE LICENSE IS LEGALLY AND PROPERLY REVOKED OR WITHDRAWN.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JULY 16, 1934:

BY YOUR LETTER OF JUNE 19, 1934, ADVICE IS REQUESTED AS TO THE LEGALITY OF REFUNDING LICENSE FEES OR TAXES TO PERSONS LICENSED UNDER SECTION 31 (B) OF THE ACT OF JULY 1, 1932 (47 STAT. 555), WHO, DURING THE PERIOD FOR WHICH LICENSES WERE ISSUED, OPERATED LESS MILES THAN WAS CONTEMPLATED AT THE TIME SCHEDULE AND ESTIMATED TOTAL NUMBER OF MILES TO BE OPERATED WERE APPROVED BY THE PUBLIC UTILITIES COMMISSION, THE SAID OPERATORS REMAINING IN SERVICE AT END OF LICENSE YEAR.

THE ACT OF JULY 1, 1932, CITED, MAKES IT UNLAWFUL FOR ANY PERSON TO ENGAGE IN OR CARRY ON ANY BUSINESS, TRADE, PROFESSION, OR CALLING IN THE DISTRICT OF COLUMBIA FOR WHICH A LICENSE FEE OR TAX IS IMPOSED WITHOUT FIRST OBTAINING A LICENSE SO TO DO. IT PRESCRIBES THE PROCEDURE FOR OBTAINING, DESIGNATES THE AUTHORITY FOR GRANTING, AND PROVIDES FOR ASSIGNMENT OF LICENSES, AND PROHIBITS THE ISSUING OF ANY LICENSE UNTIL AFTER THE FEE THEREFOR HAS BEEN PAID. AFTER MAKING GENERAL PROVISIONS FOR THE GRANTING AND USE OF SUCH LICENSES, FEES ARE PRESCRIBED FOR CARRYING ON THE DIFFERENT VOCATIONS. AS A RULE THE FEES ARE FIXED AT A FLAT RATE PER ANNUM, BUT THE AMOUNT OF THE TAX IN SOME INSTANCES IS TO BE DETERMINED BY THE EXTENT AND DURATION OF OPERATIONS. PROVISION IS MADE FOR PROPORTIONING THE FEE WHEN A LICENSE IS ISSUED AFTER THE BEGINNING OF THE LICENSE YEAR, LIMITED TO A MINIMUM FEE OF $5, BUT NO PROVISION IS MADE FOR REFUNDING THE FEE, OR ANY PART THEREOF, IN CASE A LICENSEE FAILS TO EXERCISE THE RIGHT OR PRIVILEGE GRANTED BY THE LICENSE TO ITS FULLEST EXTENT.

A LICENSE IS MERELY A PERMIT OR PRIVILEGE TO CARRY ON SOME BUSINESS SUBJECT TO REGULATION. IT IS A RIGHT GRANTED BY AUTHORITY TO DO AN ACT WHICH WITHOUT SUCH GRANT OF AUTHORITY WOULD BE UNLAWFUL. A LICENSE TO CARRY ON A BUSINESS OR TRADE IS AN OFFICIAL PERMIT TO CARRY ON THE SAME OR TO PERFORM OTHER ACTS FORBIDDEN BY LAW EXCEPT TO PERSONS OBTAINING SUCH PERMITS. A LICENSE TAX IS A CHARGE IMPOSED UPON THE PRIVILEGE OF EXERCISING CERTAIN CALLINGS, PROFESSIONS, OR VOCATIONS.

IN ANY CASE WHERE PAYMENT OF A FEE IS REQUIRED IN ADVANCE FOR THE PRIVILEGE OF CARRYING ON A CERTAIN BUSINESS OTHERWISE PROHIBITED BY LAW, THE LICENSEE BUYS THE RIGHT OR PRIVILEGE. WHEN THE LICENSE IS GRANTED THE LICENSEE HAS RECEIVED VALUE IN FULL FOR THE FEE PAID. IN THE ABSENCE OF STATUTORY AUTHORITY TO THE CONTRARY, THE TRANSACTION IS COMPLETED WHEN THE FEE IS PAID AND THE LICENSE GRANTED.

BY PARAGRAPH 31 (B) THE ACT PROVIDES:

ANY PERSON, PARTNERSHIP, ASSOCIATION, TRUST, OR CORPORATION OPERATING OR PROPOSING TO OPERATE ANY VEHICLE OR VEHICLES NOT CONFINED TO RAILS OR TRACKS FOR THE TRANSPORTATION OF PASSENGERS FOR HIRE OVER ALL OR ANY PORTION OF ANY DEFINED ROUTE OR ROUTES IN THE DISTRICT OF COLUMBIA, EXCEPT WHEN SUCH VEHICLE OR VEHICLES ARE TO BE OPERATED SOLELY FOR SIGHT-SEEING PURPOSES, SHALL, ON OR BEFORE THE 1ST DAY OF OCTOBER IN EACH YEAR, OR BEFORE COMMENCING SUCH OPERATION, SUBMIT TO THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA, IN TRIPLICATE, AN APPLICATION FOR LICENSE, STATING THEREIN THE NAME OF SUCH PERSON, PARTNERSHIP, ASSOCIATION, TRUST, OR CORPORATION, THE NUMBER AND KIND OF EACH TYPE OF VEHICLE TO BE USED IN SUCH OPERATION, THE SCHEDULE OR SCHEDULES, AND THE TOTAL NUMBER OF VEHICLE-MILES TO BE OPERATED WITH SUCH VEHICLES WITHIN THE DISTRICT OF COLUMBIA DURING THE TWELVE-MONTH PERIOD BEGINNING WITH THE 1ST DAY OF NOVEMBER IN THE SAME YEAR. THE PUBLIC UTILITIES COMMISSION SHALL THEREUPON VERIFY AND APPROVE, OR RETURN TO THE APPLICANT FOR CORRECTION AND RESUBMISSION, EACH SUCH STATEMENT, AND WHEN APPROVED, FORWARD ONE COPY THEREOF TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA OR THEIR DESIGNATED AGENTS AND RETURN ONE COPY TO THE APPLICANT. UPON RECEIPT OF THE APPROVED COPY, AND PRIOR TO THE 1ST DAY OF NOVEMBER IN THE SAME YEAR, OR BEFORE COMMENCING SUCH OPERATION, EACH SUCH APPLICANT SHALL PAY TO THE COLLECTOR OF TAXES, IN LIEU OF ANY OTHER FRANCHISE, PERSONAL OR LICENSE TAX, IN CONNECTION WITH SUCH OPERATION, THE SUM OF EIGHT-TENTHS OF 1 CENT FOR EACH VEHICLE-MILE PROPOSED TO BE OPERATED IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE APPLICATION AS APPROVED. UPON PRESENTATION OF THE RECEIPT FOR SUCH PAYMENT, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA OR THEIR DESIGNATED AGENT SHALL ISSUE A LICENSE AUTHORIZING THE APPLICANT TO CARRY ON THE OPERATIONS EMBODIED IN THE APPROVED APPLICATION. NO INCREASE OF OPERATIONS SHALL BE COMMENCED OR CONTINUED UNLESS AND UNTIL AN APPLICATION SIMILAR TO THE ORIGINAL AND COVERING SUCH INCREASE IN OPERATION SHALL HAVE BEEN APPROVED AND FORWARDED IN THE SAME MANNER AND THE CORRESPONDING ADDITIONAL PAYMENT MADE AND LICENSE ISSUED. NO LICENSE SHALL BE ISSUED UNDER THE TERMS OF THIS SUBPARAGRAPH WITHOUT THE APPROVAL OF THE PUBLIC UTILITIES COMMISSION OF THE DISTRICT OF COLUMBIA.

IT WILL BE NOTED THAT THIS PARAGRAPH IS NOT DIFFERENT FROM THE OTHER PARAGRAPHS OF THE ACT, EXCEPT AS TO DETERMINATION OF THE AMOUNT OF THE TAX OR FEE, AND IN THAT RESPECT IS MORE FAVORABLE TO THE LICENSEE THAN MANY OF THE OTHER FEES. IT IS CALCULATED ON THE BASIS OF ACTUAL OPERATIONS PROPOSED, WHEREAS THE FEE IN MANY OF THE VOCATIONS IS THE SAME AMOUNT FOR EACH LICENSEE WITHOUT REGARD TO THE AMOUNT OF BUSINESS EXPECTED. THE NATURE OF THE BUSINESS IS SUCH AND THE EQUIPMENT AND ABILITY OF THE DIFFERENT UTILITIES TO OPERATE ARE SO VARIED THAT APPARENTLY IT WAS NECESSARY TO PROVIDE A BASIS FOR COMPUTATION OF THE LICENSE TAX TO BE CHARGED IN SUCH CASES IN ORDER TO MAKE THE TAX EQUITABLE AND PRACTICABLE. THE PRIVILEGE TO OPERATE ACCORDING TO SCHEDULE IS A LICENSE AND THE FEE PAID IN ADVANCE OF OBTAINING THE LICENSE IS A LICENSE TAX. NOTHING IN THE LANGUAGE USED INDICATES ANY INTENTION OF THE CONGRESS TO PLACE THE TAX IN THIS INSTANCE IN A DIFFERENT STATUS FROM THE OTHER LICENSE TAXES PROVIDED BY THE ACT. THEY WERE ALL IMPOSED AS A REVENUE MEASURE UNDER THE GENERAL TAXING POWER OF THE CONGRESS. THE AMOUNT OF THE TAX AND THE MANNER OF ITS DETERMINATION WERE MATTERS WHOLLY WITHIN ITS DISCRETION. IF IT HAD INTENDED BUS OPERATORS SHOULD PAY A TAX OF 8 MILLS PER MILE FOR THE MILEAGE ACTUALLY OPERATED, IT WOULD HAVE BEEN A SIMPLE MATTER TO HAVE SO PROVIDED. IT IS POSSIBLE THAT THE DIFFICULTY OF DETERMINING THE ACTUAL MILEAGE OPERATED AND THE NECESSITY OF LEAVING THE MATTER LARGELY TO THE EMPLOYEES OF THE OPERATORS WERE CONSIDERED.

THE APPLICATION FOR LICENSE MUST STATE THE NUMBER AND KIND OF EACH TYPE OF VEHICLE TO BE USED, THE SCHEDULE AND NUMBER OF MILES PROPOSED TO BE OPERATED, AND IT MUST BE APPROVED BY THE PUBLIC UTILITIES COMMISSION BEFORE A LICENSE LEGALLY MAY BE ISSUED. THE AMOUNT OF THE FEE IS DETERMINED BY MATHEMATICAL CALCULATION AND MUST BE PAID IN ADVANCE. THE ABSENCE OF MATHEMATICAL ERROR OR UNLESS THE LICENSE HAS BECOME INOPERATIVE BY REASON OF ACTS OR CIRCUMSTANCES OVER WHICH THE LICENSEE HAS NO CONTROL AND WITHOUT HIS VOLITION, AS WHERE HE IS DEPRIVED OF HIS LICENSE BY STATUTE, ORDINANCE, OR REGULATION WHICH PROHIBITS THE OPERATION FOR WHICH THE LICENSE WAS GRANTED, THERE IS NO LEGAL AUTHORITY FOR REFUNDING THE FEE PAID OR ANY PART THEREOF. (SEE 37 CORPUS JURIS, 255.) IN CASE THE PRIVILEGE GRANTED IS NOT REVOKED OR AMENDED WITHOUT FAULT OF THE LICENSEE DURING THE LICENSE PERIOD, THE FEE THEREFOR HAVING BEEN DETERMINED AND PAID STRICTLY ACCORDING TO LAW IS NOT ERRONEOUSLY PAID OR COLLECTED AND IT CANNOT BE RECOVERED. NO SUBSEQUENT VOLUNTARY ACT OF THE LICENSEE COULD HAVE THE EFFECT OF NULLIFYING THE LEGALITY OF THE ORIGINAL PAYMENT OF THE LICENSE FEE DETERMINED AND COLLECTED ACCORDING TO LAW, BUT A LICENSE TAX OR FEE IS TO BE DISTINGUISHED FROM A PROPERTY TAX VOLUNTARILY PAID, SUCH AS WAS CONSIDERED IN THE GENERAL BAKING COMPANY CASE, A-39803, DECEMBER 21, 1931. A LICENSE TAX, SUCH AS IS UNDER CONSIDERATION IN THIS CASE, MUST BE PAID IN ADVANCE, AND SUCH PAYMENT IS A CONDITION PRECEDENT TO OBTAINING THE LICENSE FOR FUTURE OPERATIONS, AND THE UNEARNED PORTION OF THE MONEY PAID FOR THE PRIVILEGE MAY BE RECOVERED ONLY UPON FAILURE OF THE PRIVILEGE DUE TO FACTS AND CIRCUMSTANCES BEYOND THE CONTROL OF THE OPERATOR AND WITHOUT HIS CONSENT. NO REFUND IS AUTHORIZED WHERE THE LICENSEE ABANDONS HIS RIGHT TO OPERATE OR VOLUNTARILY FAILS TO EXERCISE THE FULL PRIVILEGE GRANTED, OR, IN THE ABSENCE OF STATUTE, VOLUNTARILY SURRENDERS HIS LICENSE OR WHERE THE LICENSE IS LEGALLY AND PROPERLY REVOKED OR WITHDRAWN.

PROVISION IS MADE FOR PAYMENT OF ANOTHER OR ADDITIONAL FEE BEFORE BEGINNING AN INCREASE OF OPERATIONS, BUT REFUNDS ARE NOT PROVIDED FOR WHERE A DECREASE OF OPERATIONS IS CONTEMPLATED. PROVISION IS MADE FOR REFUNDING ERRONEOUS PAYMENTS, BUT NOT THE UNEARNED PORTION OF THE TAX. APPLYING THE WELL-KNOWN MAXIM OF INTERPRETATION AND CONSTRUCTION, EXPRESSIO UNIUS EST EXCLUSION ALTERIUS, IT MUST BE HELD THAT REFUNDING OF UNEARNED PORTIONS OF THE LICENSE TAX PAID WAS NOT INTENDED.

WHERE AN EXCESSIVE AMOUNT HAS BEEN COLLECTED BY REASON OF MISTAKE OR ERROR IN THE ORIGINAL COMPUTATION OF MILEAGE, OR FOR ANY REASON THE AMOUNT COLLECTED WAS ERRONEOUS AT THE TIME IT WAS PAID, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE AUTHORIZED TO REFUND THE TAX OR THAT PORTION THEREOF THAT WAS COLLECTED OR PAID IN ERROR. SEE PARAGRAPH 51 OF THE ACT UNDER CONSIDERATION. IN THE INSTANT CASE THE PAYMENTS WERE NOT ERRONEOUSLY MADE, AND THERE APPEARS NO LEGAL AUTHORITY FOR REFUNDING THE SAME OR ANY PART THEREOF. YOUR QUESTIONS ARE ANSWERED ACCORDINGLY.