B-134154, APR. 18, 1960

B-134154, APR. 18, 1960

TO MRS. F. B. SCOTT:

THIS REFERS TO YOUR UNDATED LETTER TO THE TREASURY DEPARTMENT WHICH WAS RECEIVED IN THE GENERAL ACCOUNTING OFFICE ON MARCH 30, 1960. BY THIS LETTER YOU MAKE CLAIM FOR THE PROCEEDS OF A REFUND CHECK ISSUED TO YOU AND YOUR HUSBAND BECAUSE OF AN OVERPAYMENT OF 1944 INCOME TAX.

THIS MATTER WAS CONSIDERED BY OUR OFFICE IN SETTLEMENT Z-1844373, OCTOBER 3, 1957, AND IN DECISION B-134154, DECEMBER 2, 1957. IN EACH INSTANCE YOUR CLAIM WAS DENIED.

THE INFORMATION ON FILE IN OUR OFFICE SHOWS THAT FRANK B. AND ROBERTA SCOTT OF ROUTE 1, BOX 27, SMITHFIELD, TEXAS, FILED A 1944 TAX RETURN WITH THE OFFICE OF THE DISTRICT DIRECTOR OF INTERNAL REVENUE AT RICHMOND, VIRGINIA, WHICH DISCLOSED AN OVERPAYMENT. ON SEPTEMBER 11, 1945, REFUND CHECK NO. 5,109,480 IN THE AMOUNT OF $132.43 WAS DRAWN TO THE ORDER OF FRANK B. AND ROBERTA SCOTT, ROUTE 1, BOX 27, SMITHFIELD, TEXAS. SO FAR AS CAN BE DETERMINED, THIS CHECK HAS NEVER BEEN RETURNED AND HAS NOT APPEARED ON ANY OUTSTANDING CHECK LIST. UNDER THESE CIRCUMSTANCES IT MUST BE ASSUMED THAT THE CHECK WAS DELIVERED TO THE ABOVE-NAMED ADDRESS AND NEGOTIATED.

THE CHECK IN QUESTION WAS ISSUED ON SEPTEMBER 11, 1945, AND SO FAR AS OUR RECORDS SHOW YOU FIRST MADE CLAIM FOR ITS PROCEEDS IN YOUR LETTER OF FEBRUARY 6, 1957, TO THE INTERNAL REVENUE SERVICE AT RICHMOND, VIRGINIA. WHILE YOU INDICATED IN YOUR LETTER TO OUR OFFICE OF OCTOBER 12, 1957, THAT YOU WROTE TO THE INTERNAL REVENUE SERVICE IN 1945 CONCERNING THIS MATTER, OUR RECORDS DO NOT SHOW THIS TO BE THE CASE. IN ANY EVENT, ASSUMING THAT YOU DID WRITE TO THE INTERNAL REVENUE SERVICE IN 1945 CONCERNING THIS CHECK, YOU WOULD NOT HAVE MET THE NECESSARY TEST TO TOLL THE RUNNING OF THE STATUTE OF LIMITATION THEN APPLICABLE TO THE CONSIDERATION OF GOVERNMENT CHECKS. UP UNTIL AUGUST 28, 1957, SECTION 122 OF TITLE 31 OF THE U.S.C. PROVIDED AS FOLLOWS:

"ALL CLAIMS ON ACCOUNT OF ANY CHECK, CHECKS, WARRANT, OR WARRANTS APPEARING TO HAVE BEEN PAID SHALL BE BARRED IF NOT PRESENTED TO THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS AFTER THE DATE OF ISSUANCE OF THE CHECK, CHECKS, WARRANT, OR WARRANTS INVOLVED.'

SECTION 3 (A) OF THE ACT OF AUGUST 28, 1957, PUBLIC LAW 85-183, 71 STAT. 465, CODIFIED AT 31 U.S.C. 122, EXTENDED THIS PROVISION TO PROVIDE THAT FILING A CLAIM FOR THE PROCEEDS OF A CHECK WITH THE TREASURY DEPARTMENT WOULD ALSO TOLL THE RUNNING OF THE SIX-YEAR PERIOD. HOWEVER, THE ACT OF AUGUST 28, 1957 WAS NOT MADE RETROACTIVE AND ACCORDINGLY, UNTIL ITS ENACTMENT, THE ABOVE-QUOTED PROVISION OF LAW GOVERNED AND IT WAS NECESSARY FOR CLAIMS INVOLVING CHECKS TO BE PRESENTED IN THE GENERAL ACCOUNTING OFFICE WITHIN SIX YEARS FROM THE DATE OF ISSUANCE.

ASIDE FROM THE ABOVE-QUOTED PROVISION OF LAW WHICH BARS FURTHER CONSIDERATION OF YOUR CLAIM, THE CHECK INVOLVED HAS BEEN DESTROYED PURSUANT TO LAW. THIS FACT MAKES AN EXAMINATION OF THE ENDORSEMENT OF THE CHECK IMPOSSIBLE. THE PASSAGE OF TIME AND THE DESTRUCTION OF THE CHECK PRECLUDE FURTHER CONSIDERATION OF THE MATTER BY OUR OFFICE.

ACCORDINGLY, B-134154, DECEMBER 2, 1957, IS SUSTAINED AND YOUR CLAIM IS DENIED.