A-80562, SEPTEMBER 23, 1936, 16 COMP. GEN. 306

A-80562: Sep 23, 1936

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ARE NOT "INCOME" WITHIN THE MEANING OF THE ACT OF FEBRUARY 11. MAY NOT BE CREDITED TO THE APPROPRIATIONS FROM WHICH PAYMENT WAS MADE. ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. TWO SETS OF CHECKS WERE DRAWN IN EACH INSTANCE. THE AMOUNT THUS SHOWN TO HAVE BEEN COLLECTED FROM THE VENDORS FOR NOTARIAL SERVICES FURNISHED BY THE EMPLOYEES OF THE ADMINISTRATION IS REPORTED TO BE IN THE SPECIAL DEPOSIT ACCOUNT OF THE DISBURSING OFFICER. THE QUESTION PRESENTED FOR CONSIDERATION IS WHETHER THERE IS AUTHORITY OF LAW FOR THE ACTION NOW PROPOSED TO TRANSFER SAID AMOUNT FROM THE OFFICER'S SPECIAL DEPOSIT ACCOUNT TO THE CREDIT OF THE RESPECTIVE APPROPRIATIONS WHICH WERE CHARGED WITH THE PURCHASE PRICE OF THE LANDS OBTAINED.

A-80562, SEPTEMBER 23, 1936, 16 COMP. GEN. 306

OFFICERS AND EMPLOYEES - DISPOSITION OF FEES COLLECTED AS NOTARIES PUBLIC - PUERTO RICO RECONSTRUCTION ADMINISTRATION FEES COLLECTED FROM PRIVATE INDIVIDUALS FOR NOTARIAL SERVICES PERFORMED BY GOVERNMENT EMPLOYEES, PAID FROM APPROPRIATED FUNDS, THROUGH THE MEDIUM OF CHECKS DRAWN, ONE FOR THE FEE CHARGED, THE OTHER FOR THE NET PURCHASE PRICE OF LAND PURCHASED BY THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, ARE NOT "INCOME" WITHIN THE MEANING OF THE ACT OF FEBRUARY 11, 1936, 49 STAT. 1135, AND MAY NOT BE CREDITED TO THE APPROPRIATIONS FROM WHICH PAYMENT WAS MADE, BUT ARE FOR COVERING INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 23, 1936:

THERE HAS BEEN SUBMITTED TO THIS OFFICE FOR PREAUDIT CONSIDERATION SCHEDULE OF TRANSFERS, SPECIAL DEPOSITS, STANDARD FORM NO. 1046 (REVISED), EXECUTED BY THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, PROPOSING TO TRANSFER $964.89 (COLLECTED AS NOTARIAL FEES FOR SERVICES PERFORMED BY EMPLOYEES OF THE ADMINISTRATION TO VENDORS OF LANDS PURCHASED BY THE ADMINISTRATION) FROM THE SPECIAL DEPOSIT ACCOUNT OF J. S. LATHAM, DISBURSING CLERK, SAN JUAN, PUERTO RICO, TO THE CREDIT OF THE SEVERAL APPROPRIATIONS CHARGED WITH THE PURCHASE PRICE OF THE LANDS SO ACQUIRED BY THE ADMINISTRATION.

THE NOTARIAL FEES COLLECTED BY THE ADMINISTRATION FROM THE SEVERAL VENDORS REPRESENT ONE-HALF OF 1 PERCENT OF THE PURCHASE PRICE OF LANDS ACQUIRED BY THE ADMINISTRATION AND PAID FOR ON THE FOLLOWING DESCRIBED VOUCHERS, ACCOUNTS OF J. S. LATHAM, SYMBOL NO. 72-01-51:

* * * * * * * * * * * * * (CHART OMITTED) * * * * * * * * * * * * * *

IN THE PAYMENT OF THE ABOVE DESCRIBED VOUCHERS, TWO SETS OF CHECKS WERE DRAWN IN EACH INSTANCE, ONE SET TO THE VENDOR OR VENDORS FOR 99 1/2 PERCENT OF THE PURCHASE PRICE, THE OTHER TO THE TREASURER OF THE UNITED STATES FOR ONE-HALF OF 1 PERCENT OF THE SAID PURCHASE PRICE, THE TOTAL OF THE LATTER CHECKS BEING $964.89. THE AMOUNT THUS SHOWN TO HAVE BEEN COLLECTED FROM THE VENDORS FOR NOTARIAL SERVICES FURNISHED BY THE EMPLOYEES OF THE ADMINISTRATION IS REPORTED TO BE IN THE SPECIAL DEPOSIT ACCOUNT OF THE DISBURSING OFFICER, AND THE QUESTION PRESENTED FOR CONSIDERATION IS WHETHER THERE IS AUTHORITY OF LAW FOR THE ACTION NOW PROPOSED TO TRANSFER SAID AMOUNT FROM THE OFFICER'S SPECIAL DEPOSIT ACCOUNT TO THE CREDIT OF THE RESPECTIVE APPROPRIATIONS WHICH WERE CHARGED WITH THE PURCHASE PRICE OF THE LANDS OBTAINED.

IN SUPPORT OF THE PROPOSED ACTION THERE IS CITED THE ACT OF FEBRUARY 11, 1936, 49 STAT. 1135, SECTION 1 OF WHICH PROVIDES:

THAT ALL SUMS WHICH THE PRESIDENT HAS SEGREGATED OR ALLOTTED OR SHALL SEGREGATE OR ALLOT FOR PROJECTS IN PUERTO RICO OUT OF THE MONEY APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 SHALL CONSTITUTE A SPECIAL FUND TO PROVIDE RELIEF AND WORK RELIEF AND TO INCREASE EMPLOYMENT IN PUERTO RICO. THE FUND THUS ESTABLISHED SHALL CONTINUE AVAILABLE FOR EXPENDITURE UNTIL JUNE 30, 1940. ALL INCOME DERIVED FROM OPERATIONS FINANCED OUT OF THIS FUND AND THE PROCEEDS OF THE DISPOSITION OF PROPERTY ACQUIRED THEREWITH SHALL CONSTITUTE A REVOLVING FUND, WHICH SHALL REMAIN AVAILABLE FOR EXPENDITURE FOR THE PURPOSES AND IN MANNER AUTHORIZED HEREIN AND IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 UNTIL CONGRESS SHALL PROVIDE OTHERWISE, NOTWITHSTANDING ANY LIMITATION OF TIME CONTAINED IN THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935. ANY AGENCY OR AGENCIES LAWFULLY DESIGNATED OR ESTABLISHED TO ADMINISTER FUNDS ALLOTTED HEREUNDER OR THE REVOLVING FUND HEREIN AUTHORIZED MAY BE CONTINUED SO LONG AS THE SAID FUNDS OR ANY OF THEM REMAIN AVAILABLE FOR EXPENDITURE.

PROJECTS FOR RURAL REHABILITATION IN PUERTO RICO MAY INCLUDE THE ACQUISITION, DEVELOPMENT, MAINTENANCE, AND OPERATION OF AGRICULTURAL ENTERPRISES. A REASONABLE CHARGE MAY BE MADE FOR MATERIALS AND SERVICES PRODUCED OR MADE AVAILABLE BY ANY PROJECT: PROVIDED, THAT SUCH MATERIALS AND SERVICES MAY ALSO BE SUPPLIED AS COMPENSATION, IN WHOLE OR IN PART, FOR SERVICES RENDERED BY PERSONS EMPLOYED UPON ANY PROJECT.

PURSUANT TO THE ABOVE STATUTORY PROVISIONS THIS OFFICE IN DECISION A- 72833, DATED AUGUST 6, 1936, PROVIDED FOR THE ESTABLISHING ON THE BOOKS OF THE GOVERNMENT SPECIAL FUND ACCOUNT ,05-05/0999 EMERGENCY RELIEF, PUERTO RICO SPECIAL FUND, 1935-1940," AND AUTHORIZED THE TRANSFER INTO SAID SPECIAL FUND THE BALANCES REMAINING IN THE SEVERAL APPROPRIATIONS COMPRISING FUNDS ALLOCATED BY THE PRESIDENT OUT OF THE MONEY APPROPRIATED BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 FOR PROJECTS IN PUERTO RICO.

THE VOUCHERS COVERING THE PURCHASE OF LANDS, OUT OF WHICH THE NOTARIAL FEES ARISE IN THE PRESENT CASE, SHOW THAT THE SEVERAL APPROPRIATIONS WERE CHARGED WITH THE ACTUAL CONTRACT PRICE OF THE LAND, THAT IS TO SAY, THE GROSS PURCHASE PRICE. WITHOUT AT THIS TIME CONSIDERING OR DETERMINING THE AUTHORITY, IF ANY, FOR EMPLOYEES OF THE ADMINISTRATION TO RENDER NOTARIAL SERVICES TO PRIVATE INDIVIDUALS, AS APPEARS TO HAVE BEEN DONE, THE CHARGES FOR SAID NOTARIAL SERVICES ARE CLEARLY OBLIGATIONS OF THE RESPECTIVE VENDORS, AND SINCE SUCH SERVICES WERE RENDERED BY REGULAR SALARIED EMPLOYEES OF THE ADMINISTRATION, THE CHARGE MADE FOR THE VALUE OF SUCH SERVICES TO THE RESPECTIVE VENDORS BY DEDUCTION FROM THE PURCHASE PRICE WAS PROPER. HOWEVER, SINCE THE SEVERAL APPROPRIATIONS WERE CHARGED WITH THE FULL PURCHASE PRICE OF THE LANDS, THE PROPOSED ACTION OF TRANSFERRING BACK THE AMOUNT OF THE NOTARIAL FEES SO COLLECTED INTO THE INVOLVED APPROPRIATIONS WOULD RESULT IN THE AUGMENTATION OF THE APPROPRIATION SPECIFICALLY MADE THROUGH ALLOTMENT BY THE PRESIDENT FOR PARTICULAR PURPOSES. OBVIOUSLY, SUCH ACTION WOULD BE ILLEGAL AND UNAUTHORIZED.

WHILE THE STATUTE, SUPRA, AUTHORIZES THE ESTABLISHMENT OF A REVOLVING FUND, CONSISTING OF ALL INCOME DERIVED FROM OPERATIONS FINANCED OUT OF THE "SPECIAL FUND" AND THE PROCEEDS OF THE DISPOSITION OF PROPERTY ACQUIRED THEREWITH, I ASSUME IT COULD NOT SERIOUSLY BE CONTENDED THAT THE NOTARIAL FEES COLLECTED IN THIS MATTER CONSTITUTE "INCOME" WITHIN THE MEANING OF THE STATUTE--- PARTICULARLY SINCE THE FEES WERE COLLECTED PRIOR TO ANY POSSIBLE OPERATION OF THE LANDS ACQUIRED BY THE ADMINISTRATION. THE INCOME REFERRED TO IN THE STATUTE MUST OF NECESSITY RELATE TO REVENUES DERIVED AFTER THE LAND HAS BEEN ACQUIRED, PRESUMABLY, FROM LEASES, SALE OF LUMBER, AND SUCH LIKE, RESULTING FROM OPERATIONS OF RURAL REHABILITATION, FORESTATION, AND HOUSING PROJECTS.

SECTION 3617, REVISED STATUTES, PROVIDES:

THE GROSS AMOUNT OF ALL MONEYS RECEIVED FROM WHATEVER SOURCE FOR THE USE OF THE UNITED STATES, EXCEPT AS OTHERWISE PROVIDED IN THE NEXT SECTION, SHALL BE PAID BY THE OFFICER OR AGENT RECEIVING THE SAME INTO THE TREASURY, AT AS EARLY A DAY AS PRACTICABLE, WITHOUT ANY ABATEMENT OR DEDUCTION ON ACCOUNT OF SALARY, FEES, COSTS, CHARGES, EXPENSES, OR CLAIM OF ANY DESCRIPTION WHATEVER. * * *

SEE ALSO, SECTION 3618, REVISED STATUTES.

SINCE THE SALARIES OF THE EMPLOYEES OF THE ADMINISTRATION WHO RENDERED THE NOTARIAL SERVICES FOR THE RESPECTIVE VENDORS WERE, IN THE FIRST INSTANCE, PAID FROM APPROPRIATED MONEYS, THE AMOUNTS COLLECTED THEREFOR FROM THE SEVERAL VENDORS WHO RECEIVED THE SAID SERVICES, CONSTITUTE EARNINGS OF THE UNITED STATES, AND AS SUCH, ARE REQUIRED BY THE STATUTORY PROVISIONS LAST QUOTED TO BE COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS.

THE DOCUMENTS SUBMITTED FOR PREAUDIT ACTION, THEREFORE, WILL BE RETURNED WITHOUT CERTIFICATION BY THIS OFFICE THROUGH THE USUAL PREAUDIT CHANNELS. PROMPT ACTION SHOULD BE TAKEN TO DEPOSIT THE FEES IN QUESTION INTO MISCELLANEOUS RECEIPTS AND THIS OFFICE SHOULD BE ADVISED PROMPTLY WHEN SUCH ACTION SHALL HAVE BEEN TAKEN.