A-58854, DECEMBER 21, 1934, 14 COMP. GEN. 480

A-58854: Dec 21, 1934

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THE IDENTITY OF THE PERSON BY WHOM THE ERRONEOUS PAYMENT WAS MADE. OTHER EVIDENCE NECESSARY TO SATISFY THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA THAT THE CLAIM FOR REIMBURSEMENT IS PROPER. THE BURDEN IS UPON THE CLAIMANT TO ESTABLISH THE RIGHT TO REFUND TO THE SATISFACTION OF THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA. WHO ARE CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE MATTER. UNLESS AND UNTIL SUCH EVIDENCE IS FURNISHED AND THERE IS A DETERMINATION BY THE ACCOUNTING OFFICERS THAT THE CLAIMANT IS ENTITLED THERETO. NO REFUND IS AUTHORIZED. ALLEGED TO HAVE BEEN ERRONEOUSLY PAID DURING THE CALENDAR YEARS 1929 AND 1930. WHICH CLAIM IS SET FORTH IN ITS LETTER OF THAT DATE ENCLOSED HEREWITH.

A-58854, DECEMBER 21, 1934, 14 COMP. GEN. 480

DISTRICT OF COLUMBIA - REFUND OF TAXES ERRONEOUSLY PAID - EVIDENCE NECESSARY TO AUTHORIZE SECTION 821, TITLE 20, OF THE DISTRICT OF COLUMBIA CODE AUTHORIZING A REFUND OF TAXES ERRONEOUSLY PAID, REQUIRES A CERTIFICATE OF THE COLLECTOR OF THE ERRONEOUS PAYMENT SHOWING THE NATURE OF THE ERROR, THE IDENTITY OF THE PERSON BY WHOM THE ERRONEOUS PAYMENT WAS MADE, AND OTHER EVIDENCE NECESSARY TO SATISFY THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA THAT THE CLAIM FOR REIMBURSEMENT IS PROPER. UNDER THIS PROVISION, THE BURDEN IS UPON THE CLAIMANT TO ESTABLISH THE RIGHT TO REFUND TO THE SATISFACTION OF THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA, WHO ARE CHARGED WITH THE RESPONSIBILITY OF DETERMINING THE MATTER. UNLESS AND UNTIL SUCH EVIDENCE IS FURNISHED AND THERE IS A DETERMINATION BY THE ACCOUNTING OFFICERS THAT THE CLAIMANT IS ENTITLED THERETO, NO REFUND IS AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, DECEMBER 21, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 17, 1934, WITH INCLOSURES, AS FOLLOWS:

UNDER DATE OF DECEMBER 10, 1931, WASHINGTON PETROLEUM PRODUCTS, INC., THROUGH ITS ATTORNEY, LOUIS A. SPEISS, MADE APPLICATION FOR A REFUND OF GASOLINE TAX AMOUNTING TO $1,107.68, ALLEGED TO HAVE BEEN ERRONEOUSLY PAID DURING THE CALENDAR YEARS 1929 AND 1930, WHICH CLAIM IS SET FORTH IN ITS LETTER OF THAT DATE ENCLOSED HEREWITH. THE CLAIM OF THE COMPANY WAS ORIGINALLY DISALLOWED ON THE THEORY THAT THE EVIDENCE SUBMITTED DID NOT SUPPORT OR JUSTIFY A REFUND.

BY SUBSEQUENT LETTER DATED APRIL 11, 1932, THE ATTORNEY FOR THE COMPANY ADVISED THAT THE WAY IT ARRIVED AT THE AMOUNT OF TAXES TO BE PAID TO THE DISTRICT OF COLUMBIA WAS "WE TAKE THE OPENING INVENTORY AT THE BEGINNING OF THE MONTH, ADD THE PURCHASES FOR THE MONTH, DEDUCT THE CLOSING INVENTORY; THEN FROM OUR CARD RECORDS WE TAKE ALL SALES MADE TO THE STATES OF VIRGINIA, MARYLAND, AND SALES MADE TO THE GOVERNMENT ON TAX-FREE GASOLINE, AND DEDUCT THIS FROM THE TOTAL SALES, THEN PAY ON THE BALANCE TO THE DISTRICT.'

IT WAS APPARENT TO THE AUDITOR OF THE DISTRICT OF COLUMBIA THAT NO AFFIRMATIVE RECORD OF THE AMOUNT OF TAXABLE GASOLINE SOLD IN THE DISTRICT OF COLUMBIA WAS MAINTAINED BY THE CLAIMANT; THAT THE AMOUNT OF TAX DUE THE DISTRICT WAS ARRIVED AT BY A PROCESS OF DEDUCTION.

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, BY ACTION OF APRIL 26, 1932, REQUESTED WASHINGTON PETROLEUM PRODUCTS, INC., TO MAINTAIN ITS ACCOUNTS IN SUCH SHAPE THAT THEY WOULD DISCLOSE CLEARLY AND AFFIRMATIVELY THE SALES OF GASOLINE IN THE DISTRICT OF COLUMBIA ON WHICH TAX IS IMPOSED BY THE ACT OF APRIL 23, 1924 (43 STAT. 106).

THE AUDITOR'S REPRESENTATIVES HAVE MADE A DETAILED EXAMINATION INTO THE RECORDS OF THE COMPANY FOR THE PERIOD JANUARY 1, 1929, TO DECEMBER 31, 1930, INCLUSIVE, AND FIND ON JANUARY 1, 1929, A RECORD INVENTORY OF 38,932 GALLONS; THAT DURING THE 2-YEAR PERIOD, 7,233,364 GALLONS WERE PURCHASED, SUPPORTED BY REFINER'S INVOICES, AND 56,435 GALLONS TRANSFERRED THROUGH THE BOOKS OF THE COMPANY AND TAXED AS A SALE; THAT THERE WAS AN EXPANSION DURING THIS PERIOD OF 9,178 GALLONS, OR A TOTAL FOR THE PERIOD OF 7,337,909 GALLONS.

THIS GASOLINE, ACCORDING TO THE WAREHOUSE AND INVENTORY RECORD OF THE COMPANY, WAS DISPOSED OF AS FOLLOWS:

CHART TAX-EXEMPT GASOLINE SOLD TO THE GOVERNMENT ------------------ $929,819 SALES IN THE DISTRICT OF COLUMBIA, AS SHOWN BY THE SALES

RECORDS OF THE COMPANY ----------------------------------- 5,848,998 1/4 SALES IN MARYLAND ------------------------------------------ 80,879 1/2 SALES IN VIRGINIA ----------------------------------------- 250,330 SALES ON WHICH TAX WAS PAID BY STANDARD OIL COMPANY, ON WHICH

A 2-CENT TAX WAS CHARGED TO THE CLAIMANT COMPANY --------- 56,435 SHRINKAGE -------------------------------------------------- 48,912 1/4 TANK-CAR DELIVERIES IN THE DISTRICT OF COLUMBIA WHICH DID NOT

PASS THROUGH THE PLANT OF THE COMPANY, AND FOR WHICH THE

TAX WAS PAID BY THE CONSIGNEE ---------------------------- 48,536 AMOUNT THAT COULD NOT BE DISTRIBUTED ----------------------- 11,931 INVENTORY ON HAND AT THE CLOSE OF BUSINESS, DEC. 31, 1930 -- 62,068

TOTAL, AS ABOVE -------------------------------------- 7,337,909

THE FOREGOING FIGURES ARE SUPPORTED BY MONTHLY STATEMENTS OF TRANSACTIONS OF WASHINGTON PETROLEUM PRODUCTS, INC., AS TAKEN FROM THE AVAILABLE RECORDS OF THE COMPANY, AND AS CERTIFIED BY THE FIELD EXAMINER OF THE AUDITOR'S OFFICE. THE DISTRICT RECORDS SHOW THAT THE TOTAL NUMBER OF GALLONS OF GASOLINE SOLD IN THE DISTRICT OF COLUMBIA, ON WHICH THE COMPANY PAID THE 2-CENT TAX IMPOSED BY THE ACT OF APRIL 23, 1924, TO BE5,940,578 GALLONS, OR $118,811.56, AS COMPARED WITH THE RECORDS OF WASHINGTON PETROLEUM PRODUCTS, INC., SHOWING 5,848,998 GALLONS, OR A TOTAL TAX OF $116,979.96. THIS WOULD INDICATE AN APPARENT BOOKKEEPING SHORTAGE OF SALES ON THE BOOKS OF THE COMPANY OF 91,580 GALLONS, OR A DIFFERENCE OF $1,831.60.

THE AUDITOR'S REPRESENTATIVES HAVE SPENT CONSIDERABLE TIME IN THE OFFICES OF THE COMPANY WITH A VIEW TO RECONCILING THE ACCOUNTS WITH THOSE OF THE DISTRICT, AND ARE UNABLE TO PRODUCE POSITIVE PROOF THAT THE CLAIM OF THE COMPANY FOR A REFUND OF $1,107.68 IS A JUST AND PROPER CLAIM. THE RECORDS OF THE WASHINGTON PETROLEUM PRODUCTS, INC., WERE FURTHER COMPLICATED BY THE FACT THAT IN NOVEMBER 1930 ALL PURCHASES FROM THE STANDARD OIL COMPANY WERE DELIVERED BY IT TO THE VARIOUS LOCAL DEALERS, AND THAT THE TAX WAS PAID TO THE DISTRICT OF COLUMBIA BY THE STANDARD OIL COMPANY. THESE AMOUNTS ARE REFLECTED IN THE TOTAL COLUMN OF THE ENCLOSED REPORT, BUT NOT IN THE RECEIPTS COLUMN, AS THEY DID NOT PASS THROUGH THE BOOKS OF THE COMPANY.

IN SUPPORT OF ITS CLAIM, HOWEVER, THERE IS ENCLOSED A PHOTOSTAT COPY OF CHECK OF THE COMPANY, DATED SOUTH WASHINGTON, VIRGINIA, MARCH 16, 1931, PAYABLE TO THE DIRECTOR OF MOTOR VEHICLES OF VIRGINIA, IN THE AMOUNT OF $2,769.20, TOGETHER WITH A DETAILED STATEMENT SHOWING ALLEGED SALES IN VIRGINIA OF THAT AMOUNT, FOR WHICH IT IS CLAIMED TAX WAS PAID TO THE COLLECTOR OF TAXES, D.C.

IN VIEW OF THE FOREGOING THE COMMISSIONERS WOULD APPRECIATE ADVICE FROM YOU AS TO WHETHER IN YOUR OPINION THERE IS SUFFICIENT PROOF IN THE RECORD TO JUSTIFY THE CLAIM OF THE COMPANY.

IT IS ASSERTED IN THE LETTER OF DECEMBER 10, 1931, FROM THE ATTORNEY FOR THE WASHINGTON PETROLEUM PRODUCTS, INC., THAT THE CONTRACTOR, DURING THE YEARS 1929 AND 1930, HAD A BULK-GASOLINE AND LUBRICATING OIL PLANT AT SOUTH WASHINGTON, VA., FROM WHICH IT WHOLESALED GASOLINE TO RETAIL DEALERS IN THE CITY OF WASHINGTON AND IN THE STATE OF VIRGINIA; THAT DURING THAT TIME THE COMPANY USED IN ITS ROLLING EQUIPMENT 29,059 GALLONS OF GASOLINE TO DELIVER ITS PRODUCTS IN THE CITY OF WASHINGTON AND PAID THE TAX ON THAT AMOUNT OF GASOLINE TO THE DISTRICT OF COLUMBIA; THAT DURING THE SAME PERIOD THE COMPANY SOLD AND DELIVERED AT ITS PLANT IN VIRGINIA 22,779 GALLONS OF GASOLINE ON WHICH TAX WAS PAID TO THE DISTRICT OF COLUMBIA; THAT DURING SAID PERIOD THE COMPANY SOLD 1,546 GALLONS OF GASOLINE WHICH WAS USED IN VIRGINIA, BUT THAT THE COMPANY WAS UNDER THE IMPRESSION THAT SUCH GASOLINE WAS FOR USE IN THE DISTRICT OF COLUMBIA AND PAID TO THE DISTRICT THE TAX THEREON; THAT AFTERWARD, UPON AN AUDIT OF THE COMPANY'S BOOKS BY THE TAX DEPARTMENT OF THE STATE OF VIRGINIA, IT WAS DETERMINED THAT THE GASOLINE USED IN THE COMPANY'S ROLLING EQUIPMENT HAD BEEN PUT IN IN THE STATE OF VIRGINIA, AND THAT THE GASOLINE SOLD AS ABOVE HAD BEEN DELIVERED IN THE STATE OF VIRGINIA; AND THAT UNDER THE VIRGINIA LAW, THE COMPANY WAS REQUIRED TO AND DID PAY TO THE STATE OF VIRGINIA A TAX OF 5 CENTS PER GALLON ON THE TOTAL AMOUNT OF SAID GASOLINE. IT IS OBSERVED THAT THERE IS A DISCREPANCY OF 2,000 GALLONS IN FAVOR OF THE CLAIMANT IN THE LETTER, SUPRA, IN THAT THE GALLONS LISTED TOTAL 53,384, ON WHICH THE TAX WOULD BE $1,067.68, WHILE THE CLAIM WAS ON 55,384 GALLONS IN THE AMOUNT OF $1,107.68.

THE ACT OF APRIL 23, 1924, 43 STAT. 106, LAYS A TAX OF 2 CENTS PER GALLON ON MOTOR-VEHICLE FUELS WITHIN THE DISTRICT OF COLUMBIA, SOLD OR OTHERWISE DISPOSED OF BY AN IMPORTER, OR USED BY HIM IN A MOTOR VEHICLE OPERATED BY HIM FOR HIRE OR FOR COMMERCIAL PURPOSES. AN IMPORTER IS DEFINED AS ANY PERSON WHO BRINGS INTO, OR WHO PRODUCES, REFINES, MANUFACTURES, OR COMPOUNDS, IN THE DISTRICT OF COLUMBIA, MOTOR-VEHICLE FUEL TO BE SOLD OR OTHERWISE DISPOSED OF BY HIM OR TO BE USED BY HIM IN A MOTOR VEHICLE OPERATED FOR HIRE OR FOR COMMERCIAL PURPOSES.

IF THE ALLEGATIONS CONTAINED IN THE LETTER OF DECEMBER 10, 1931, FROM THE CLAIMANT'S ATTORNEY ARE ESTABLISHED BY EVIDENCE, IT WOULD APPEAR TO BE CLEAR THAT THE GASOLINE INVOLVED IN ITS CLAIM, WITH THE EXCEPTION OF THAT USED IN THE ROLLING STOCK OF THE CLAIMANT, WAS NOT BROUGHT INTO THE DISTRICT OF COLUMBIA AND, THEREFORE, WAS NOT SUBJECT TO THE DISTRICT TAX.

SECTION 821, TITLE 20, DISTRICT OF COLUMBIA CODE, PREPARED UNDER DIRECTION OF A COMMITTEE OF THE HOUSE OF REPRESENTATIVES, READS AS FOLLOWS:

TAXES ERRONEOUSLY PAID TO BE REFUNDED.--- THE COMMISSIONERS ARE HEREBY AUTHORIZED AND INSTRUCTED TO CAUSE ALL TAXES ERRONEOUSLY PAID IN THE DISTRICT OF COLUMBIA TO BE REFUNDED BY THE PROPER ACCOUNTING AND DISBURSING OFFICERS OF SAID DISTRICT, UPON THE CERTIFICATE OF THE COLLECTOR OF SUCH ERRONEOUS PAYMENT, WHICH CERTIFICATE SHALL STATE THE NATURE OF THE ERROR, THE NAME OF THE PERSON OR PERSONS BY WHOM SUCH EXCESSIVE PAYMENT WAS MADE, AND SUCH OTHER PARTICULARS AS MAY BE NECESSARY TO SATISFY THE ACCOUNTING OFFICERS THAT SUCH CLAIM FOR REIMBURSEMENT IS JUST AND EQUITABLE; AND THE SAID ACCOUNTING AND DISBURSING OFFICERS SHALL PAY ALL MONEYS SO REFUNDED OUT OF, AND CHARGE THE SAME TO, THE FUND WHICH WAS CREDITED WITH THE ERRONEOUS PAYMENT.

THIS STATUTE REQUIRES:

(1) A CERTIFICATE OF THE COLLECTOR OF THE ERRONEOUS PAYMENT STATING (A) THE NATURE OF THE ERROR, (B) THE NAME OF THE PERSON OR PERSONS BY WHOM THE EXCESSIVE PAYMENT WAS MADE, AND (C) OTHER PARTICULARS NECESSARY TO SATISFY THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA THAT THE CLAIM FOR REIMBURSEMENT IS JUST AND EQUITABLE.

(2) A DECISION BY THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA BASED UPON SUCH CERTIFICATE, THAT THE CLAIM FOR REIMBURSEMENT IS JUST AND EQUITABLE.

NEITHER THE REQUIRED CERTIFICATE OF THE COLLECTOR NOR A DECISION OF THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA ACCOMPANIES YOUR SUBMISSION. THE BROAD GENERAL PROPOSITION MAY BE STATED THAT THE BURDEN IS UPON ONE ASSERTING A CLAIM TO ESTABLISH IT BY EVIDENCE SATISFACTORY TO THE TRIBUNAL CHARGED WITH THE RESPONSIBILITY FOR ITS DETERMINATION. THIS INSTANCE, SUCH RESPONSIBILITY IS PLACED SPECIFICALLY UPON THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA BY THE QUOTED STATUTE, WHICH, LIKEWISE, PRESCRIBES THE EVIDENCE UPON WHICH THE DETERMINATION SHALL BE MADE. THE MERE FACT THAT THE CLAIMANT WAS REQUIRED TO PAY TO THE STATE OF VIRGINIA A TAX OF 5 CENTS PER GALLON ON 55,384 GALLONS OF GASOLINE IS NO EVIDENCE TO SUPPORT THE REFUND HERE CLAIMED. IT SHOULD BE AFFIRMATIVELY ESTABLISHED TO THE SATISFACTION OF THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA THAT THE TAX AT 2 CENTS PER GALLON WAS PAID TO THE DISTRICT OF COLUMBIA ON THE IDENTICAL GASOLINE, AND THAT SUCH PAYMENT WAS ERRONEOUS. YOUR LETTER STATES THAT THE REPRESENTATIVES OF THE AUDITOR OF THE DISTRICT OF COLUMBIA HAVE SPENT CONSIDERABLE TIME IN THE OFFICES OF THE WASHINGTON PETROLEUM PRODUCTS, INC., AND ARE UNABLE TO PRODUCE POSITIVE PROOF THAT THE CLAIM OF THE COMPANY FOR A REFUND OF $1,107.68 IS A JUST AND PROPER CLAIM. IT FOLLOWS THAT UNLESS AND UNTIL THERE BE FURNISHED BY THE CLAIMANT SUCH EVIDENCE AS WILL BE SATISFACTORY TO THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA AND THE DETERMINATION AND CERTIFICATION REQUIRED BY THE STATUTE ARE MADE, NO REFUND WOULD BE AUTHORIZED.