A-78519, AUGUST 14, 1936, 16 COMP. GEN. 147

A-78519: Aug 14, 1936

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DISTRICT OF COLUMBIA - GASOLINE TAX REFUNDS CLAIMS FOR REFUNDS OF GASOLINE TAXES PAID ON SALES ERRONEOUSLY REPORTED AS MADE WITHIN THE DISTRICT OF COLUMBIA ARE FOR ADJUSTMENT BY APPROPRIATION REQUEST TO THE CONGRESS. IN WHICH YOU REQUEST TO BE ADVISED WHETHER THERE IS ANY LEGAL OBJECTION TO THE ADJUSTMENT OF CLAIMS OF GASOLINE IMPORTERS FOR REFUNDS OF GASOLINE TAXES PAID ON SALES ERRONEOUSLY REPORTED AS MADE WITHIN THE DISTRICT OF COLUMBIA. WHEN IN FACT THEY WERE MADE IN CONTIGUOUS TERRITORY OF MARYLAND AND VIRGINIA. THERE WAS POINTED OUT THE REQUIREMENTS OF SECTION 821. WHICH PRESCRIBED THE CONDITIONS UNDER WHICH THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA WERE CHARGED WITH THE RESPONSIBILITY OF MAKING DETERMINATIONS WITH RESPECT TO REFUNDING ALL ERRONEOUSLY PAID TAXES.

A-78519, AUGUST 14, 1936, 16 COMP. GEN. 147

DISTRICT OF COLUMBIA - GASOLINE TAX REFUNDS CLAIMS FOR REFUNDS OF GASOLINE TAXES PAID ON SALES ERRONEOUSLY REPORTED AS MADE WITHIN THE DISTRICT OF COLUMBIA ARE FOR ADJUSTMENT BY APPROPRIATION REQUEST TO THE CONGRESS, AND NOT BY ALLOWING DEDUCTIONS FROM SUBSEQUENT GASOLINE TAX RETURNS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, AUGUST 14, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 9, 1936, IN WHICH YOU REQUEST TO BE ADVISED WHETHER THERE IS ANY LEGAL OBJECTION TO THE ADJUSTMENT OF CLAIMS OF GASOLINE IMPORTERS FOR REFUNDS OF GASOLINE TAXES PAID ON SALES ERRONEOUSLY REPORTED AS MADE WITHIN THE DISTRICT OF COLUMBIA, WHEN IN FACT THEY WERE MADE IN CONTIGUOUS TERRITORY OF MARYLAND AND VIRGINIA, BY ALLOWING SAID IMPORTERS TO DEDUCT FROM SUBSEQUENT RETURNS OF GASOLINE TAXES THE AMOUNT OF SAID CLAIMS, SUBJECT, HOWEVER, TO PRIOR AUDIT AND APPROVAL THEREOF BY THE AUDITOR OF THE DISTRICT OF COLUMBIA.

THE QUESTION OF REFUNDING GASOLINE TAXES COLLECTED BY THE DISTRICT OF COLUMBIA HAS BEEN CONSIDERED BY THIS OFFICE HERETOFORE. IN A LETTER OF DECEMBER 21, 1934, A-58854, RELATIVE TO SUFFICIENCY OF PROOF TO JUSTIFY A REFUND OF SUCH TAX, THERE WAS POINTED OUT THE REQUIREMENTS OF SECTION 821, TITLE 20, DISTRICT OF COLUMBIA CODE, WHICH PRESCRIBED THE CONDITIONS UNDER WHICH THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA WERE CHARGED WITH THE RESPONSIBILITY OF MAKING DETERMINATIONS WITH RESPECT TO REFUNDING ALL ERRONEOUSLY PAID TAXES.

HOWEVER, THE PROVISIONS CONTAINED IN 18 STAT. 116 AND 20 STAT. 103, AS COMPILED UNDER THE DIRECTION OF A COMMITTEE OF THE HOUSE OF REPRESENTATIVES AND INCORPORATED IN SECTION 821, TITLE 20, DISTRICT OF COLUMBIA CODE, SUPRA, STIPULATING CONDITIONS GOVERNING THE REFUND OF TAXES ERRONEOUSLY COLLECTED, HAVE BEEN AMENDED BY THE PERMANENT APPROPRIATION REPEAL ACT OF JUNE 26, 1934, 48 STAT. 1224, SECTION 14 OF WHICH PROVIDES:

(A) ON AND AFTER JULY 1, 1935, APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA APPEARING ON THE BOOKS OF THE GOVERNMENT AND LISTED IN SUBSECTION (B) OF THIS SECTION ARE ABOLISHED AS SUCH, AND SO MUCH OF THE SEVERAL ACTS AS PROVIDE FOR SUCH APPROPRIATIONS IS AMENDED SO AS TO AUTHORIZE IN LIEU THEREOF ANNUAL DEFINITE APPROPRIATIONS, ESTIMATES FOR WHICH SHALL BE INCORPORATED IN THE ESTIMATES OF ANNUAL APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA.

(B) (1) REFUNDING WATER RENTS, AND SO FORTH, DISTRICT OF COLUMBIA (D.C. X 602).

(2) REFUNDING TAXES, DISTRICT OF COLUMBIA (D.C. X 601).

A STUDY OF THE LEGISLATIVE HISTORY OF THE PERMANENT APPROPRIATION REPEAL ACT SHOWS CONCLUSIVELY THAT THE PRIMARY PURPOSE THEREOF WAS TO ELIMINATE THE PERMANENT APPROPRIATIONS LISTED THEREIN, AND TO HAVE SUCH APPROPRIATIONS MADE ANNUALLY IN ORDER TO THROW ALL POSSIBLE LIGHT AND PUBLICITY THEREON, THUS RESULTING IN A CERTAIN DEGREE OF NECESSARY SCRUTINY. FOLLOWING AN INVESTIGATION IN THE 52D CONGRESS BY THE HOUSE COMMITTEE ON APPROPRIATIONS, OF THE DESIRABILITY OF ABOLISHING PERMANENT APPROPRIATIONS, HON. CLIFTON R. BRECKINRIDGE STATED WITH RESPECT TO THE UNDESIRABILITY OF THE TENDENCY TO EXPAND THE USE OF SUCH APPROPRIATIONS:

IT WILL BE OBSERVED THAT THE TENDENCY TO INCREASE THE NUMBER OF PERMANENT APPROPRIATIONS IS OF DECIDED GROWTH IN COMPARATIVELY RECENT TIMES. SERVES EXECUTIVE CONVENIENCE TO ESCAPE THE TASK OF ANNUAL DISCUSSIONS TO PROCURE ESTIMATES, AND IT LESSENS PUBLIC SCRUTINY TO AFFORD THIS RELIEF. STABILITY FOR CERTAIN PAYMENTS IS SOUGHT BY THIS MEANS; BUT IT TAKES FROM THE COUNTRY AND FROM CONGRESS THE HABIT OF VOLUNTARILY PROVIDING YEARLY FOR THOSE OBLIGATIONS WHICH MOST STRONGLY APPEAL TO THE DEBT-PAYING SENTIMENT * * *.

LATER IT WAS STATED BY THE COMMITTEE ON APPROPRIATIONS IN REPORTING TO THE SECOND SESSION OF THE 73RD CONGRESS ON THE QUESTION OF REPEAL OF SAID PERMANENT APPROPRIATIONS:

IT IS THE CONCLUSION OF THE COMMITTEE, AFTER HEARING NUMEROUS WITNESSES, THAT PERMANENT APPROPRIATIONS ARE A VICIOUS USURPATION AND INVASION OF THE RIGHTS OF SITTING CONGRESSES; THAT THEY COMPLICATE BOOKKEEPING IN THE OFFICE OF THE TREASURER AND THE DIVISION OF BOOKKEEPING AND WARRANTS OF THE TREASURY DEPARTMENT; MAKE AUDITING IN THE COMPTROLLER GENERAL'S OFFICE DIFFICULT; CONCEAL FROM CONGRESS MANY AVENUES OF RECEIPTS AND EXPENDITURES (WHICH IN ITSELF IS AN INVITATION TO EXTRAVAGANCE) AND, FOR LACK OF PROPER ANNUAL DISCLOSURE, MAKE THE WORK OF THE APPROPRIATIONS SUBCOMMITTEES CONJECTURAL AND UNCERTAIN--- MANY OF THE AGENCIES OF OUR GOVERNMENT RECEIVING THESE ,INVISIBLE" PERMANENT ALLOTMENTS AS WELL AS ANNUAL APPROPRIATIONS FOR THE SAME PURPOSES.

* * * THE WISDOM OF AUTHORIZING AND PERMITTING THE AMOUNT OF THE RECEIPTS FROM SOME PARTICULAR SOURCE TO BE THE "MEASURING ROD," SO TO SPEAK, FOR APPROPRIATION TO BE SUBSEQUENTLY MADE FOR SOME PROJECT OR ACTIVITY THAT MAY HAVE DIRECTLY OR INDIRECTLY CONTRIBUTED TO SUCH RECEIPTS, IS, AS A POLICY, CERTAINLY NOT QUESTIONED BY THE COMMITTEE. THE COMMITTEE, HOWEVER, DOES SERIOUSLY INVEIGH AGAINST THE PRACTICE OF DEDICATING THE PROCEEDS THEMSELVES TO ANY EXPENDITURE PURPOSE AS AN AUTOMATIC PROPOSITION WITHOUT CONGRESS HAVING ANY ANNUAL VOICE IN THE MATTER OF THE APPROPRIATION. SUCH A LEGISLATIVE PRACTICE HAS BEEN GROWING WITH CONSTANT ACCELERATION, AND IT IS THIS TREND WHICH THE COMMITTEE SEEKS, THROUGH THIS BILL, TO ARREST. TO ADMIT THAT EACH CONGRESS SHOULD HAVE THE RIGHT VOUCHSAFED TO IT BY THE CONSTITUTION, TO EXERCISE THE EXCLUSIVE POWER OF APPROPRIATION OF MONEYS IN THE TREASURY OF THE UNITED STATES, IS TO CONCUR WITH THE COMMITTEE'S ACTION, AS REPRESENTED BY THE ACCOMPANYING BILL, IN ABOLISHING THE SPECIAL PRIVILEGE EXTENDED BY MEANS OF PERMANENT APPROPRIATIONS.

THE ARRANGEMENT SUGGESTED IN YOUR LETTER HAS AS ITS OBJECTIVE THE PAYMENT, IN EFFECT, BY OFFSET, OF REFUNDS OF ERRONEOUS TAX PAYMENTS FROM TAXES DUE THE DISTRICT OF COLUMBIA. THE ACT OF APRIL 23, 1924, 43 STAT. 106, UNDER WHICH THE GASOLINE TAX IS LEVIED AND COLLECTED PROVIDES IN SECTION 10 THEREOF FOR A REFUND BY CHECK ISSUED BY THE COLLECTOR OF TAXES OF THE DISTRICT OF COLUMBIA--- UPON THE PRESENTATION OF PROPERLY VERIFIED INVOICES--- IN CERTAIN CASES. HOWEVER, THE ACT CONTAINS NO AUTHORIZATION FOR REFUND OF TAXES PAID ON SALES ERRONEOUSLY REPORTED.

IN VIEW OF THE FOREGOING, IT IS APPARENT THAT THE ARRANGEMENT SUGGESTED IS WITHOUT LEGAL BASIS AND THAT IT IS IN DIRECT CONFLICT WITH THE POLICY SO CLEARLY ENUNCIATED BY THE CONGRESS IN REPEALING THE PERMANENT ANNUAL APPROPRIATION ACTS, WHEREIN IT IS REITERATED THAT THE CONGRESSIONAL INTENT IN THE HANDLING OF FISCAL TRANSACTIONS OF THE NATURE HERE UNDER CONSIDERATION IS THAT ASSESSMENTS LEVIED BE COVERED INTO THE TREASURY "AND ANNUAL APPROPRIATIONS MADE TO COVER ALL PROPER EXPENSES AND TO REFUND OVERASSESSMENTS.'

ACCORDINGLY, YOU ARE ADVISED THAT THE ARRANGEMENT AS PROPOSED IS UNAUTHORIZED.