A-77860, JULY 14, 1936, 16 COMP. GEN. 23

A-77860: Jul 14, 1936

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ARE COMMUNITY PROPERTY. ALTHOUGH THE AUTOMOBILES ARE IN SOME INSTANCES REGISTERED IN THE NAME OF THE WIVES OF THESE EMPLOYEES. SUBMITTED HEREWITH IS A MEMORANDUM OF LAW PREPARED BY OUR REGIONAL ATTORNEY IN CALIFORNIA. TRAVELING IN AN AUTOMOBILE WHICH IS COMMUNITY PROPERTY. THE MEMORANDUM OF LAW INDICATES THAT IN THE STATE OF CALIFORNIA THERE IS A PRESUMPTION THAT ALL PROPERLY ACQUIRED BY EITHER HUSBAND OR WIFE DURING COVERTURE CONSTITUTES COMMUNITY PROPERTY. OF WHICH THE HUSBAND IS THE SOLE AND EXCLUSIVE OWNER. THE MEMORANDUM FURTHER INDICATES THAT EVEN THOUGH AN AUTOMOBILE IS REGISTERED IN THE WIFE'S NAME. THERE EXISTS ONLY A DISPUTABLE PRESUMPTION THAT IT IS HER SEPARATE PROPERTY AND NOT COMMUNITY PROPERTY.

A-77860, JULY 14, 1936, 16 COMP. GEN. 23

MILEAGE - TRAVEL BY PRIVATELY OWNED AUTOMOBILE - REGISTRATION IN EMPLOYEE'S WIFE'S NAME A RESETTLEMENT ADMINISTRATION EMPLOYEE IN THE STATE OF CALIFORNIA PERFORMING TRAVEL BY PRIVATELY OWNED AUTOMOBILE UNDER THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED, MAY NOT BE PAID MILEAGE WHEN USING AN AUTOMOBILE REGISTERED IN HIS WIFE'S NAME, NOTWITHSTANDING AN AUTOMOBILE SO REGISTERED IN THAT STATE MAY BE CONSIDERED COMMUNITY PROPERTY. 14 COMP. GEN. 197, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, JULY 14, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 30, 1936, AS FOLLOWS:

A NUMBER OF EMPLOYEES OF THE RESETTLEMENT ADMINISTRATION IN THE STATE OF CALIFORNIA PERFORM TRAVEL IN AUTOMOBILES WHICH, ACCORDING TO THE LAWS OF THAT STATE, ARE COMMUNITY PROPERTY. ALTHOUGH THE AUTOMOBILES ARE IN SOME INSTANCES REGISTERED IN THE NAME OF THE WIVES OF THESE EMPLOYEES, IT APPEARS THAT UNDER CALIFORNIA LAW THEY MAY BE CONSIDERED UNDER CERTAIN CIRCUMSTANCES AS BEING THE PROPERTY OF THE EMPLOYEES.

THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED BY SECTION 9, TITLE II OF THE ACT OF MARCH 3, 1933, PROVIDES THAT AN EMPLOYEE OF THE GOVERNMENT ENGAGED IN NECESSARY TRAVEL ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY MAY BE PAID, IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION, NOT TO EXCEED FIVE CENTS PER MILE FOR THE USE OF HIS OWN AUTOMOBILE. SECTION 12 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AS AMENDED, PROVIDES THAT MILEAGE IN LIEU OF ACTUAL EXPENSES OF TRANSPORTATION MAY BE ALLOWED AN EMPLOYEE TRAVELING BY HIS PERSONALLY OWNED AUTOMOBILE ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY, AT A RATE NOT TO EXCEED FIVE CENTS PER MILE.

SUBMITTED HEREWITH IS A MEMORANDUM OF LAW PREPARED BY OUR REGIONAL ATTORNEY IN CALIFORNIA, WHEREIN IT APPEARS THAT IN THE LIGHT OF THE COMMUNITY PROPERTY LAW OF THAT STATE, AN EMPLOYEE OF THE RESETTLEMENT ADMINISTRATION, TRAVELING IN AN AUTOMOBILE WHICH IS COMMUNITY PROPERTY, ALTHOUGH REGISTERED IN THE NAME OF THE EMPLOYEE'S WIFE, MAY PROPERLY BE SAID TO BE TRAVELING IN HIS OWN AUTOMOBILE SO THAT HE MAY BE ALLOWED REIMBURSEMENT ON A MILEAGE BASIS FOR THE USE OF SUCH AUTOMOBILE. THE MEMORANDUM OF LAW INDICATES THAT IN THE STATE OF CALIFORNIA THERE IS A PRESUMPTION THAT ALL PROPERLY ACQUIRED BY EITHER HUSBAND OR WIFE DURING COVERTURE CONSTITUTES COMMUNITY PROPERTY, OF WHICH THE HUSBAND IS THE SOLE AND EXCLUSIVE OWNER, AND THAT THE WIFE HAS NO TITLE TO SUCH PROPERTY, NOR INTEREST OR ESTATE THEREIN, OTHER THAN A MERE EXPECTANCY AS HEIR. THE MEMORANDUM FURTHER INDICATES THAT EVEN THOUGH AN AUTOMOBILE IS REGISTERED IN THE WIFE'S NAME, THERE EXISTS ONLY A DISPUTABLE PRESUMPTION THAT IT IS HER SEPARATE PROPERTY AND NOT COMMUNITY PROPERTY. THE HUSBAND MAY PROVE THE COMMUNITY CHARACTER OF THE PROPERTY BY SHOWING THAT IT WAS PURCHASED WITH FUNDS ACQUIRED DURING MARRIAGE, THAT HE HAD NO INTENTION OF MAKING NOR DID IN FACT MAKE A GIFT OF THE AUTOMOBILE TO HIS WIFE BY PERMITTING HER TO REGISTER IT IN HER NAME, AND THAT THEY HAVE ALWAYS UNDERSTOOD IT TO BE PART OF THE COMMUNITY PROPERTY.

THIS ADMINISTRATION IS FAMILIAR WITH YOUR DECISION A-54439, 14 COMP. GEN. 197, WHERE LANGUAGE WAS USED TO THE EFFECT THAT "THE AUTOMOBILE BEING REGISTERED IN THE NAME OF THE EMPLOYEE'S WIFE, OWNERSHIP MUST BE REGARDED AS SHOWN BY THE RECORD AS BEING VESTED IN HER.' IN THAT DECISION, HOWEVER, THE EMPLOYEE HAD ORIGINALLY STATED THAT HE HAD PURCHASED THE CAR FROM HIS WIFE. THE CLAIM WAS SUBSEQUENTLY ASSERTED THAT THE AUTOMOBILE WAS COMMUNITY PROPERTY AND COULD THEREFORE BE CONSIDERED AS BEING THE EMPLOYEE'S PERSONALLY OWNED AUTOMOBILE. YOUR DECISION SEEMED TO BE BASED TO SOME EXTENT ON THE FACT THAT INCONSISTENT STATEMENTS HAD BEEN MADE, AND THAT THE CLAIM ASSERTED BY THE EMPLOYEE WOULD, THEREFORE, BE DISREGARDED. IT ALSO APPEARED IN THAT DECISION THAT THE AUTOMOBILE IN QUESTION WAS ACTUALLY THE PROPERTY OF THE EMPLOYEE'S WIFE, HAD BEEN SO REGARDED BY THEM, AND WAS THEREFORE NOT COMMUNITY PROPERTY. IN THE SITUATION INVOLVING THE EMPLOYEES OF THIS ADMINISTRATION, THE AUTOMOBILES ARE IN FACT COMMUNITY PROPERTY AND MAY BE CONSIDERED UNDER THE LAW OF THE STATE OF CALIFORNIA AS BEING THE PROPERTY OF THE EMPLOYEES. IT DOES NOT APPEAR, FURTHERMORE, THAT A COMPLETE STATEMENT OF THE APPLICABLE LAW OF THAT STATE HAS BEEN PRESENTED TO YOUR OFFICE. IN OTHER WORDS, YOUR DECISION A-54439, 14 COMP. GEN. 197, WAS BASED UPON THE FACTS OF THAT CASE, AND IT IS BELIEVED THAT THE MEMORANDUM OF LAW SUBMITTED HEREWITH MAY CAUSE A DIFFERENT CONCLUSION TO BE REACHED IF THE PROPER AND NECESSARY PROOF OF THE COMMUNITY NATURE OF AN AUTOMOBILE IS PRESENTED TO YOUR OFFICE.

YOUR OPINION IS THEREFORE REQUESTED AS TO WHETHER AN EMPLOYEE OF THIS ADMINISTRATION TRAVELING BY AUTOMOBILE IN THE STATE OF CALIFORNIA ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY OR OFFICIAL STATION MAY BE ALLOWED REIMBURSEMENT ON A MILEAGE BASIS FOR THE USE OF SUCH AUTOMOBILE EVEN THOUGH IT IS REGISTERED IN THE NAME OF HIS WIFE, IF IT CONSTITUTES COMMUNITY PROPERTY. YOUR OPINION IS FURTHER REQUESTED AS TO THE NATURE OF THE EVIDENCE WHICH WILL BE REQUIRED BY YOUR OFFICE TO SHOW THAT AN AUTOMOBILE IS COMMUNITY PROPERTY UNDER THE LAW OF THE STATE OF CALIFORNIA AND THEREFORE AN EMPLOYEE'S OWN AUTOMOBILE.

THE MEMORANDUM PREPARED BY THE REGIONAL ATTORNEY OF YOUR ADMINISTRATION IN CALIFORNIA DISCUSSES AT LENGTH THE REPORTED DECISIONS OF THE COURTS ON COMMUNITY PROPERTY IN THAT STATE, AND THE CONTROL OF THE HUSBAND OVER THE SAME. THERE IS NO DISCUSSION, HOWEVER, AS TO THE LOCAL LAWS REGARDING THE REGISTRATION OF AUTOMOBILES. ASSUMING THAT IT MIGHT BE POSSIBLE TO ESTABLISH AS A LEGAL PROPOSITION THAT AN AUTOMOBILE REGISTERED IN THE WIFE'S NAME IN CALIFORNIA WAS ACQUIRED UNDER CONDITIONS MAKING IT COMMUNITY PROPERTY AND SUBJECT TO A CERTAIN CONTROL ON THE PART OF THE HUSBAND, THE CALIFORNIA CODE, SECTION 161A, DECLARES THAT THE RESPECTIVE INTERESTS OF THE HUSBAND AND WIFE IN THE COMMUNITY PROPERTY "ARE PRESENT, EXISTING, AND EQUAL.' IT MUST FOLLOW, THEREFORE, THAT EVEN THOUGH AN AUTOMOBILE REGISTERED IN THE NAME OF THE WIFE MAY BE CONSIDERED COMMUNITY PROPERTY, IT CANNOT BE CONSIDERED THE SOLE PROPERTY OF THE HUSBAND AND THE EMPLOYEE DOES NOT HAVE THE STATUS OF OWNER THEREOF WITHIN THE PURVIEW OF THE ACT OF FEBRUARY 14, 1931, AS AMENDED.

ACCORDINGLY, THE DECISION IN 14 COMP. GEN. 197, IS FOR APPLICATION TO ALL CLAIMS FOR MILEAGE FOR THE USE OF PERSONALLY OWNED AUTOMOBILES IN CALIFORNIA REGISTERED IN THE NAME OF THE WIFE OF THE TRAVELER.