A-61059, JULY 2, 1935, 15 COMP. GEN. 5

A-61059: Jul 2, 1935

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PARTICULARLY WHEN IT WAS TO THE ACKNOWLEDGED INTERESTS OF THE DEPARTMENT OF JUSTICE TO CONDUCT SUCH PROCEEDINGS IN ORDER THAT IT MIGHT BE IN A POSITION TO HANDLE AN APPEAL TO THE COURTS MORE EFFICIENTLY. 1935: THERE WAS RECEIVED YOUR LETTER OF APRIL 26. YOU STATE THAT BECAUSE OF THE IMPORTANCE OF THE CASE IT WAS DESIRABLE TO EMPLOY SPECIAL COUNSEL OF OUTSTANDING AND RECOGNIZED ABILITY IN ADDITION TO THE REGULAR STAFF OF ATTORNEYS EMPLOYED IN THE BUREAU OF INTERNAL REVENUE. THAT THE DEPARTMENT OF JUSTICE INDICATED ITS WILLINGNESS TO FURNISH SPECIAL COUNSEL BUT WAS UNABLE TO DO SO WITHIN THE LIMITS OF ITS APPROPRIATION. ARRANGEMENT WAS MADE TO REIMBURSE THE DEPARTMENT OF JUSTICE. THAT INASMUCH AS THE APPROPRIATION FOR THE BUREAU OF INTERNAL REVENUE WAS AVAILABLE FOR THE PROSECUTION OF THE CASE BEFORE THE BOARD OF TAX APPEALS.

A-61059, JULY 2, 1935, 15 COMP. GEN. 5

DEPARTMENTS, EXECUTIVE - SERVICES BETWEEN - SPECIAL COUNSEL AN APPROPRIATION NOT AVAILABLE FOR THE APPOINTMENT OF SPECIAL COUNSEL MAY NOT BE USED TO REIMBURSE THE DEPARTMENT OF JUSTICE FOR THE SERVICES OF SPECIAL COUNSEL ESPECIALLY EMPLOYED BY IT UPON REQUEST OF THE COMMISSIONER OF INTERNAL REVENUE TO CONDUCT PROCEEDINGS BEFORE THE BOARD OF TAX APPEALS, PARTICULARLY WHEN IT WAS TO THE ACKNOWLEDGED INTERESTS OF THE DEPARTMENT OF JUSTICE TO CONDUCT SUCH PROCEEDINGS IN ORDER THAT IT MIGHT BE IN A POSITION TO HANDLE AN APPEAL TO THE COURTS MORE EFFICIENTLY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 2, 1935:

THERE WAS RECEIVED YOUR LETTER OF APRIL 26, 1935, REQUESTING REVIEW OF THE ACTION OF THIS OFFICE IN NOT CERTIFYING FOR PAYMENT UPON PREAUDIT A VOUCHER IN FAVOR OF THE DEPARTMENT OF JUSTICE FOR $12,455.44 PROPOSING TO REIMBURSE THAT DEPARTMENT FOR LEGAL SERVICES FURNISHED IN A CASE BEFORE THE BOARD OF TAX APPEALS, INVOLVING CERTAIN INCOME-TAX RETURNS. YOU STATE THAT BECAUSE OF THE IMPORTANCE OF THE CASE IT WAS DESIRABLE TO EMPLOY SPECIAL COUNSEL OF OUTSTANDING AND RECOGNIZED ABILITY IN ADDITION TO THE REGULAR STAFF OF ATTORNEYS EMPLOYED IN THE BUREAU OF INTERNAL REVENUE; THAT THE DEPARTMENT OF JUSTICE INDICATED ITS WILLINGNESS TO FURNISH SPECIAL COUNSEL BUT WAS UNABLE TO DO SO WITHIN THE LIMITS OF ITS APPROPRIATION; THAT, ACCORDINGLY, ARRANGEMENT WAS MADE TO REIMBURSE THE DEPARTMENT OF JUSTICE; THAT INASMUCH AS THE APPROPRIATION FOR THE BUREAU OF INTERNAL REVENUE WAS AVAILABLE FOR THE PROSECUTION OF THE CASE BEFORE THE BOARD OF TAX APPEALS, YOU FEEL THAT THERE IS AUTHORITY TO REIMBURSE THE DEPARTMENT OF JUSTICE FOR SUCH SERVICE; ALSO, THAT IT WAS DESIRABLE FOR A SPECIAL ASSISTANT TO THE ATTORNEY GENERAL TO HANDLE THE CASE SO THAT HE WOULD BE BETTER PREPARED TO HANDLE THE CASE IN THE CIRCUIT COURT OF APPEALS, IN THE EVENT AN APPEAL SHOULD BE TAKEN.

IN YOUR LETTER OF JANUARY 8, 1934, ADDRESSED TO THE ATTORNEY GENERAL, IT WAS STATED THERE WAS NO STATUTORY AUTHORITY FOR THE TREASURY DEPARTMENT TO HIRE SPECIAL COUNSEL; THAT TWO ATTORNEYS IN PRIVATE PRACTICE IN NEW YORK CITY, WHOM YOU HAD IN MIND FOR THIS CASE, WOULD NOT ACCEPT REGULAR EMPLOYMENT; AND, ACCORDINGLY, YOU SUGGESTED THAT THE DEPARTMENT OF JUSTICE ENGAGE THESE TWO ATTORNEYS AS SPECIAL COUNSEL.

IT THUS APPEARS THAT THE SERVICES FURNISHED BY THE DEPARTMENT OF JUSTICE WERE NOT THE SERVICES OF ITS REGULAR ATTORNEYS BUT OF TWO ATTORNEYS ESPECIALLY EMPLOYED FOR THAT PURPOSE AND THAT SUCH EMPLOYMENT BY THE DEPARTMENT OF JUSTICE WAS REQUESTED PRIMARILY BECAUSE THE APPROPRIATIONS OF THE BUREAU OF INTERNAL REVENUE WERE NOT AVAILABLE FOR SUCH EMPLOYMENT.

OBVIOUSLY, AN APPROPRIATION WHICH IS NOT AVAILABLE FOR A PARTICULAR OBJECT MAY NOT BE USED TO REIMBURSE ANOTHER DEPARTMENT FOR SUCH AN OBJECT. SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, UPON WHICH YOU RELY FOR THE PROPOSED REIMBURSEMENT IN THIS CASE, REQUIRES AS A CONDITION PRECEDENT THAT THE DEPARTMENT REQUIRING THE SERVICE MUST HAVE FUNDS AVAILABLE THEREFOR. FURTHERMORE, IN VIEW OF THE REPORTED PROBABILITY THAT THE CASE WOULD BE APPEALED REGARDLESS OF HOW DECIDED IN THE LOWER COURT, AND AS IT WILL BE THE DUTY OF THE DEPARTMENT OF JUSTICE TO PRESENT THE CASE BEFORE THE CIRCUIT COURT OF APPEALS IN THAT EVENT, IT WOULD SEEM DESIRABLE FOR THAT DEPARTMENT, IN ITS OWN INTEREST, TO PARTICIPATE IN THE TRIAL BEFORE THE BOARD OF TAX APPEALS. UNDER THE CIRCUMSTANCES, THE APPROPRIATIONS UNDER THE DEPARTMENT OF JUSTICE, WHICH HAVE BORNE THE EXPENSE OF THE SPECIAL COUNSEL EMPLOYED BY THE ATTORNEY GENERAL, MAY NOT BE REIMBURSED FROM ANY APPROPRIATION UNDER YOUR ADMINISTRATIVE CONTROL.