A-73340, APRIL 23, 1936, 15 COMP. GEN. 933

A-73340: Apr 23, 1936

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JUDGMENTS - SUITS AGAINST OFFICERS OF THE UNITED STATES - LIABILITY FOR COURT COSTS WHERE IN THE CASE OF A SUIT AGAINST AN INTERNAL REVENUE OFFICER INDIVIDUALLY AND AS SUCH OFFICER TO RESTRAIN THE COLLECTION OF PROCESSING TAXES JUDGMENT FOR COSTS IS RECOVERED BY THE PLAINTIFF. THERE IS NO LIABILITY ON THE UNITED STATES FOR PAYMENT THEREOF WHERE NO CERTIFICATE OF PROBABLE CAUSE IS ISSUED. WERE SUCH CERTIFICATE ISSUED PAYMENT WOULD BE UNAUTHORIZED. THE MATTER IS FOR REPORTING TO THE CONGRESS AS ARE OTHER ESTIMATES OF APPROPRIATIONS. 231.15 THE CERTIFIED COPY OF THE JUDGMENT WHICH ACCOMPANIES EACH OF THE CLAIMS SHOWS THAT IN EACH OF THE ABOVE EQUITY SUITS THE DEFENDANT WAS PERMANENTLY RESTRAINED AND ENJOINED FROM ASSESSING OR COLLECTING OR ATTEMPTING TO ASSESS OR COLLECT FROM THE PLAINTIFF ANY PROCESSING TAXES UNDER AND PURSUANT TO THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12.

A-73340, APRIL 23, 1936, 15 COMP. GEN. 933

JUDGMENTS - SUITS AGAINST OFFICERS OF THE UNITED STATES - LIABILITY FOR COURT COSTS WHERE IN THE CASE OF A SUIT AGAINST AN INTERNAL REVENUE OFFICER INDIVIDUALLY AND AS SUCH OFFICER TO RESTRAIN THE COLLECTION OF PROCESSING TAXES JUDGMENT FOR COSTS IS RECOVERED BY THE PLAINTIFF, THERE IS NO LIABILITY ON THE UNITED STATES FOR PAYMENT THEREOF WHERE NO CERTIFICATE OF PROBABLE CAUSE IS ISSUED. WERE SUCH CERTIFICATE ISSUED PAYMENT WOULD BE UNAUTHORIZED, THE APPROPRIATION OUT OF WHICH THE CAUSE OF ACTION AROSE NOT EXPRESSLY PROVIDING FOR PAYMENT, AND THERE BEING NO OTHER EXPRESS STATUTORY AUTHORITY THEREFOR. IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY FOR PAYMENT, THE MATTER IS FOR REPORTING TO THE CONGRESS AS ARE OTHER ESTIMATES OF APPROPRIATIONS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 23, 1936:

BY LETTER OF MARCH 11, 1935, THE COMMISSIONER OF INTERNAL REVENUE, TREASURY DEPARTMENT, TRANSMITTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT II ADMINISTRATIVELY APPROVED CLAIMS BASED ON SEPARATE JUDGMENTS RENDERED AGAINST THE DEFENDANT IN EACH OF 11 SEPARATE EQUITY SUITS IN THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF LOUISIANA, NEW ORLEANS DIVISION, AS FOLLOWS:

CHART EQUITY JUDGMENT SUIT NO. PLAINTIFF DEFENDANT DATE AMOUNT

321 RICKERT RICE MILL, -- RUFUS W. FONTENOT, FEB. 12, 1936 $323.60

INC. INDIVIDUALLY AND

AS ACTING UNITED

STATES COLLECTOR

OF INTERNAL

REVENUE, ETC.

322 A. B. DORE ---------- --- DO ----------- -- DO ------- 288.75

323 UNITED RICE MILLING

PRODUCTS CO. ------- --- DO ----------- -- DO ------- 288.50

324 BATON ROUGE RICE

MILL, INC. --------- --- DO ----------- -- DO ------- 288.50

325 T. SIMON ------------ --- DO ----------- -- DO ------- 288.50

326 LEVY RICE MILLING

CO., INC. --------- --- DO ----------- -- DO ------- 198.15

327 FARMERS RICE MILLING

CO., INC. --------- --- DO ----------- -- DO ------- 290.30

328 NOBLE-TROTTER RICE

MILLING CO., INC. - --- DO ----------- -- DO ------- 289.05

305 JOSE ESCALANTE AND

CO. ---------------- --- DO ----------- FEB. 19, 1936 178.10

311 PHIL D. MOYER AND

SON, LTD. ---------- --- DO ----------- -- DO ------- 117.85

312 M. TRELLES AND CO. -- --- DO ----------- -- DO ------ 231.15

THE CERTIFIED COPY OF THE JUDGMENT WHICH ACCOMPANIES EACH OF THE CLAIMS SHOWS THAT IN EACH OF THE ABOVE EQUITY SUITS THE DEFENDANT WAS PERMANENTLY RESTRAINED AND ENJOINED FROM ASSESSING OR COLLECTING OR ATTEMPTING TO ASSESS OR COLLECT FROM THE PLAINTIFF ANY PROCESSING TAXES UNDER AND PURSUANT TO THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12, 1933, 48 STAT. 31, AS AMENDED AUGUST 24, 1935, 49 STAT. 750, AND FROM IMPOSING OR GIVING NOTICE OF INTENTIONS TO IMPOSE ANY LIEN FOR SAID TAXES UPON THE REAL OR PERSONAL PROPERTY OF THE PLAINTIFF. IN EACH OF SAID JUDGMENTS, ALSO, THE COURT ORDERED, ADJUDGED, AND DECREED THAT THE PLAINTIFF RECOVER OF AND FROM THE DEFENDANT ITS COSTS OF SUIT, THEREIN STATED IN THE RESPECTIVE AMOUNTS ABOVE SET FORTH, AND THAT EXECUTION THEREFOR SHOULD ISSUE.

IN A SUIT, SUCH AS THOSE HERE UNDER CONSIDERATION, WHERE THE JUDGMENT IS RECOVERED AGAINST A COLLECTOR OF INTERNAL REVENUE FOR COSTS INCURRED BY PLAINTIFF IN CONNECTION WITH AN INJUNCTION PROCEEDING FOR PREVENTING COLLECTION OF TAXES, THE JUDGMENT IS NOT AGAINST THE UNITED STATES AND THERE IS NO LIABILITY ON THE UNITED STATES FOR PAYMENT OF A JUDGMENT SO RENDERED AGAINST THE COLLECTOR OF INTERNAL REVENUE IN THE ABSENCE OF A CERTIFICATE OF PROBABLE CAUSE DULY ISSUED PURSUANT TO SECTION 989, REVISED STATUTES. IN THIS CONNECTION SEE 8 COMP. GEN. 126, AND 12 ID. 474, AND CASES THERE CITED.

IN THESE CASES IT DOES NOT APPEAR THAT THE COURT HAS ISSUED IN ANY OF THE 11 EQUITY SUITS A CERTIFICATE OF PROBABLE CAUSE. THEREFORE, THE UNITED STATES IS NOT LIABLE FOR THE PAYMENT OF THE COSTS ASSESSED AGAINST THE DEFENDANT IN SUCH SUITS.

WITH REFERENCE TO THE SUGGESTION THAT PAYMENT OF THE SAID JUDGMENT CLAIMS BE MADE FROM THE APPROPRIATION,"SALARIES AND EXPENSES, AGRICULTURAL ADJUSTMENT ADMINISTRATION," EVIDENTLY ON THE THEORY THAT THE COSTS AWARDED THE PLAINTIFFS IN SAID EQUITY SUITS BE CONSIDERED IN THE NATURE OF ADMINISTRATIVE EXPENSES OF THE AGRICULTURAL ADJUSTMENT ADMINISTRATION, DEPARTMENT OF AGRICULTURE, ATTENTION IS INVITED TO SECTION 21 OF THE AGRICULTURAL ADJUSTMENT ACT AS AMENDED BY SECTION 30 OF THE ACT OF AUGUST 24, 1935, 49 STAT. 770.

EVEN IF CERTIFICATES OF PROBABLE CAUSE SHOULD BE ISSUED IN THESE CASES AND THE UNITED STATES BECAME LIABLE FOR PAYMENT OF THESE JUDGMENTS THERE WOULD APPEAR TO BE NO APPROPRIATION OR FUND AVAILABLE THEREFOR. SEE IN THIS CONNECTION THE REQUIREMENT OF THE ACT OF APRIL 27, 1904, 33 STAT. 422, UNDER THE HEADING "JUDGMENTS, UNITED STATES COURTS.'

* * * THAT HEREAFTER ESTIMATES FOR THE PAYMENT OF ALL JUDGMENTS AGAINST THE UNITED STATES, INCLUDING JUDGMENTS * * * OF THE UNITED STATES COURTS SHALL BE TRANSMITTED TO CONGRESS THROUGH THE TREASURY DEPARTMENT AS OTHER ESTIMATES OF APPROPRIATIONS ARE REQUIRED TO BE TRANSMITTED.

IT HAS BEEN HELD THAT UNDER SAID EXPRESS STATUTE, THE APPROPRIATIONS OR FUNDS PROVIDED FOR GOVERNMENTAL OPERATIONS OR ACTIVITIES, OUT OF WHICH THE CAUSE OF ACTION AROSE, ARE NOT AVAILABLE TO PAY JUDGMENTS OF COURTS, BUT THAT THE AMOUNT THEREOF MUST BE ESTIMATED AND SPECIFICALLY APPROPRIATED FOR IN ACCORDANCE WITH SAID ACT (27 COMP. DEC. 108, 262; 1 COMP. GEN. 540; AND 5 ID. 203, 205). EXCEPTIONS TO THE RULE ARE RECOGNIZED ONLY WHERE THE APPROPRIATIONS OR SPECIAL FUNDS FOR ACTIVITIES OUT OF WHICH THE CAUSE OF ACTION AROSE EXPRESSLY INCLUDE PROVISIONS FOR THE PAYMENT OF JUDGMENTS AGAINST THE UNITED STATES, 2 COMP. GEN. 501; 751; OR WHERE OTHER EXPRESS PROVISIONS OF LAW PROVIDE FOR PAYMENT OF JUDGMENTS.

THERE DOES NOT APPEAR TO BE ANY STATUTE AUTHORIZING PAYMENT OF COURT COSTS IN THE INSTANT EQUITY SUITS, NOR DOES THERE APPEAR TO BE ANY APPROPRIATION AVAILABLE FOR PAYMENT OF SUCH COURT COSTS. ACCORDINGLY, THE 11 JUDGMENT CLAIMS MUST BE AND ARE DISALLOWED.