A-8959, MAY 23, 1925, 4 COMP. GEN. 986

A-8959: May 23, 1925

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SUBSISTENCE - TAX ON LODGING EXPENSES - WAIVER OF REGULATIONS A TAX IMPOSED IN FOREIGN COUNTRIES UPON THE LANDLORD'S CHARGE FOR LODGINGS CONSTITUTES A PART OF SUBSISTENCE EXPENSES AND WHEN THE EMPLOYEE IS TRAVELING ON AN ACTUAL EXPENSE BASIS IS ONLY ALLOWABLE AS SUCH WITHIN THE MAXIMUM AMOUNT PERMITTED BY THE ACT OF APRIL 6. IS NOT AFFECTED BY ANY WAIVER OF ADMINISTRATIVE REGULATIONS WHILE THE EMPLOYEE IS TRAVELING IN FOREIGN COUNTRIES. 1925: I HAVE YOUR LETTER OF APRIL 2. ARE USUALLY INCLUDED IN THE RECEIPTS OBTAINED BY THE TRAVELER WHEN PAYING FOR LODGING. EXCEPTION IS TAKEN BY THIS DEPARTMENT TO THE PRACTICE OF INCLUDING THESE TAXES IN ITEMS OF SUBSISTENCE WHERE THEY ARE CLEARLY DISTINGUISHABLE FROM THE REGULAR LODGING CHARGE.

A-8959, MAY 23, 1925, 4 COMP. GEN. 986

SUBSISTENCE - TAX ON LODGING EXPENSES - WAIVER OF REGULATIONS A TAX IMPOSED IN FOREIGN COUNTRIES UPON THE LANDLORD'S CHARGE FOR LODGINGS CONSTITUTES A PART OF SUBSISTENCE EXPENSES AND WHEN THE EMPLOYEE IS TRAVELING ON AN ACTUAL EXPENSE BASIS IS ONLY ALLOWABLE AS SUCH WITHIN THE MAXIMUM AMOUNT PERMITTED BY THE ACT OF APRIL 6, 1914, 38 STAT. 318. THE STATUTORY LIMIT OF $5 PER DAY FOR ACTUAL EXPENSES OF SUBSISTENCE FIXED BY THE ACT OF APRIL 6, 1914, 38 STAT. 318, IS NOT AFFECTED BY ANY WAIVER OF ADMINISTRATIVE REGULATIONS WHILE THE EMPLOYEE IS TRAVELING IN FOREIGN COUNTRIES.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE TREASURY, MAY 23, 1925:

I HAVE YOUR LETTER OF APRIL 2, 1925, AS FOLLOWS:

THIS DEPARTMENT INVITES YOUR ATTENTION TO A PRACTICE OBTAINING IN THE GENERAL ACCOUNTING OFFICE OF TREATING AS SUBSISTENCE CITY TAXES PAID ON ROOMS OCCUPIED BY FOREIGN REPRESENTATIVES OF THIS DEPARTMENT WHILE PERFORMING OFFICIAL TRAVEL IN EUROPEAN COUNTRIES. THESE TAXES RANGE FROM 20 TO 40 PERCENT OF THE RATE CHARGED FOR LODGING, AND ARE USUALLY INCLUDED IN THE RECEIPTS OBTAINED BY THE TRAVELER WHEN PAYING FOR LODGING. EXCEPTION IS TAKEN BY THIS DEPARTMENT TO THE PRACTICE OF INCLUDING THESE TAXES IN ITEMS OF SUBSISTENCE WHERE THEY ARE CLEARLY DISTINGUISHABLE FROM THE REGULAR LODGING CHARGE. THERE IS NO WAY FOR THE TRAVELER TO ESCAPE SUCH TAXES EVEN THOUGH HE BE TRAVELING ON OFFICIAL BUSINESS FOR THIS GOVERNMENT. THE TAX IS USUALLY FIXED BY LOCAL GOVERNMENT, AND THIS DEPARTMENT'S REPRESENTATIVES HAVE NOT HERETOFORE BEEN IN ANY POSITION TO CLAIM IMMUNITY FROM SUCH TAXES.

THE HOLDING OF YOUR OFFICE THAT NO OFFICER OF THE SPECIAL AGENCY SERVICE MAY BE REIMBURSED FOR SUBSISTENCE IN EXCESS OF $5.00 PER DAY PLACES FOREIGN REPRESENTATIVES OF THIS SERVICE AT A DISTINCT DISADVANTAGE WHEN THE GENERAL ACCOUNTING OFFICE INSISTS THAT TAXES OF THIS NATURE ARE TO BE TREATED AS ITEMS OF SUBSISTENCE.

THIS DEPARTMENT HAS NEVER CONSTRUED SUBSISTENCE TO INCLUDE ITEMS OTHER THAN LODGING, MEALS, BATH, LAUNDRY, PRESSING CLOTHES, FEES TO WAITERS, FEES TO MAIDS, AND FEES TO BELL BOYS. TO INCLUDE THIS LODGING TAX, AS MUCH IN MANY INSTANCES AS 40 PERCENT OF THE LODGING CHARGE, ALONG WITH OTHER ITEMS OF SUBSISTENCE WOULD, IN THE OPINION OF THIS DEPARTMENT, BE IMPOSING AN EXTREME HARDSHIP UPON OFFICERS OF THE FOREIGN SERVICE AND UNWARRANTED IN THE LIGHT OF PRESENT LAW.

FOR TWO YEARS OFFICERS AND EMPLOYEES OF THE SPECIAL AGENCY SERVICE IN FOREIGN STATIONS HAVE BEEN PERFORMING TRAVEL WITHOUT REGARD TO THE TRAVEL REGULATIONS OF THIS DEPARTMENT, SUCH REGULATIONS HAVING BEEN WAIVED BY AUTHORITY OF THE SECRETARY OF THE TREASURY UNDER DATE OF JULY 7, 1923, A COPY OF SUCH WAIVER BEING ENCLOSED HEREWITH.

A RULING OF YOUR OFFICE IS REQUESTED AS TO WHETHER OR NOT THIS LODGING TAX IS TO BE CONSIDERED AS A PART OF THE SUBSISTENCE CHARGE.

SECTION 5 OF THE ACT OF MARCH 4, 1923, 42 STAT. 1454, PROVIDES:

THAT ALL CUSTOMS OFFICERS AND EMPLOYEES, INCLUDING CUSTOMS OFFICERS AND EMPLOYEES IN FOREIGN COUNTRIES, IN ADDITION TO THEIR COMPENSATION SHALL RECEIVE THEIR NECESSARY TRAVELING EXPENSES AND ACTUAL EXPENSES INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AND AWAY FROM THEIR DESIGNATED STATION, AND WHEN TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR DUTY MAY BE ALLOWED, WITHIN THE DISCRETION AND UNDER WRITTEN ORDERS OF THE SECRETARY OF THE TREASURY, THE EXPENSES INCURRED FOR PACKING, CRATING, FREIGHT, AND DRAYAGE IN THE TRANSFER OF THEIR HOUSEHOLD EFFECTS AND OTHER PERSONAL PROPERTY, NOT EXCEEDING IN ALL FIVE THOUSAND POUNDS.

THE ACT OF APRIL 6, 1914, 38 STAT. 318, WHICH LIMITS SUBSISTENCE EXPENSES TO $5 PER DAY, PROVIDES AS FOLLOWS:

ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND FOURTEEN, UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY OUTSIDE OF THE DISTRICT OF COLUMBIA AND AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $5 PER DAY * * *.

YOUR SUBMISSION RAISES THE QUESTION WHETHER THE TAX ON LODGING SHOULD BE REGARDED AS A PART OF SUBSISTENCE EXPENSES IN DETERMINING WHETHER THE MAXIMUM PER DAY HAS BEEN EXCEEDED OR WHETHER IT MAY BE CONSIDERED AS AN AUTHORIZED TRAVELING EXPENSE IN ADDITION TO THE AMOUNT AUTHORIZED FOR SUBSISTENCE.

THE TAX IN QUESTION IS A TAX UPON A SUBSISTENCE EXPENSE. IT IS A PERCENTAGE INCREASE ADDED TO THE LANDLORD'S CHARGE FOR LODGINGS AND CONSTITUTES A PART OF THE AMOUNT WHICH MUST BE PAID FOR THE LODGINGS. ACCORDINGLY, I HAVE TO ADVISE THAT THE TAX UNDER CONSIDERATION MUST BE AND IS CONSIDERED A PART OF SUBSISTENCE AND THEREFORE ONLY ALLOWABLE AS SUCH.

IF THE HIGH COST OF SUBSISTENCE RESULTING FROM SUCH TAXES OR OTHER CAUSES IMPOSES A HARDSHIP UPON GOVERNMENT EMPLOYEES TRAVELING IN FOREIGN COUNTRIES, THE MATTER WOULD APPEAR TO BE FOR CONSIDERATION OF THE CONGRESS.

THERE IS NOTED YOUR STATEMENT TO THE EFFECT THAT THE TRAVEL REGULATIONS OF THE TREASURY DEPARTMENT HAVE BEEN WAIVED WITH RESPECT TO FOREIGN TRAVEL. IN THAT CONNECTION IT SHOULD, OF COURSE, BE UNDERSTOOD THAT THE $5 STATUTORY LIMITATION UPON SUBSISTENCE CAN NOT BE AFFECTED BY ANY ADMINISTRATIVE WAIVER OF REGULATIONS. WITH REFERENCE TO THE GENERAL QUESTION OF WAIVING REGULATIONS SEE 21 COMP. DEC. 482; 26 ID. 99; 1 COMP. GEN. 13; 2 COMP. GEN. 342; 4 COMP. GEN. 63; ID. 480; ID. 767.