B-138747, FEB. 23, 1961
Highlights
GEORGE BERKOWITZ: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1. ATKINS AND BAUGHAM WERE ONLY MINORITY STOCKHOLDERS IN VIKING AIRLINES. THAT THERE WAS NOT SUCH A CONCERT OF ACTION BETWEEN THE TWO COMPANIES AS TO DESTROY THE PROTECTION OF THE CORPORATE VEIL. YOUR PRESENT LETTER CONTAINS NO EVIDENCE NOT CONSIDERED PREVIOUSLY BY THIS OFFICE IN REACHING THE CONCLUSION THAT THE TWO CORPORATIONS WERE SO CLOSELY ALIGNED AS TO NULLIFY THE PROTECTION OF THE CORPORATE SHIELD. YOUR ALLEGATIONS ARE ALL UNSUBSTANTIATED BY THE RECORDS IN THE OFFICE. OUR OFFICE IS CHARGED BY THE CONGRESS (31 U.S.C. 71) WITH THE DUTY TO SETTLE AND ADJUST ALL CLAIMS BY THE GOVERNMENT OR AGAINST IT. WE ARE NOT CONVINCED THAT YOU HAVE MET THE BURDEN OF PROVING THAT THE SETOFF WAS IMPROPER.
B-138747, FEB. 23, 1961
TO MR. GEORGE BERKOWITZ:
REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1960, IN EFFECT REQUESTING REVIEW OF OUR DECISION OF AUGUST 30, 1960, WHICH SUSTAINED OUR SETOFF OF FUNDS DUE YOUR CLIENT, CENTRAL AIR TRANSPORT, IN PAYMENT OF A DEBT DUE THE UNITED STATES FROM VIKING AIR LINES.
YOU CONTEND THAT MESSRS. ATKINS AND BAUGHAM WERE ONLY MINORITY STOCKHOLDERS IN VIKING AIRLINES, AND THAT THERE WAS NOT SUCH A CONCERT OF ACTION BETWEEN THE TWO COMPANIES AS TO DESTROY THE PROTECTION OF THE CORPORATE VEIL. YOUR PRESENT LETTER CONTAINS NO EVIDENCE NOT CONSIDERED PREVIOUSLY BY THIS OFFICE IN REACHING THE CONCLUSION THAT THE TWO CORPORATIONS WERE SO CLOSELY ALIGNED AS TO NULLIFY THE PROTECTION OF THE CORPORATE SHIELD. YOUR ALLEGATIONS ARE ALL UNSUBSTANTIATED BY THE RECORDS IN THE OFFICE. IF YOU CAN PRODUCE FURTHER EVIDENCE OF A PROBATIVE VALUE WHICH MIGHT CLEAR UP SOME OF THE DOUBTFUL ASPECTS OF THIS CASE, WE WOULD BE PLEASED TO CONSIDER IT. HOWEVER, OUR OFFICE IS CHARGED BY THE CONGRESS (31 U.S.C. 71) WITH THE DUTY TO SETTLE AND ADJUST ALL CLAIMS BY THE GOVERNMENT OR AGAINST IT. THE BURDEN OF PROVING THE VALIDITY OF SUCH CLAIMS RESTS UPON THE CLAIMANT THROUGH THE PRESENTATION OF PROPER AND CONVINCING DOCUMENTARY EVIDENCE. LONGWILL AND JOHNSONS CASES, 17 CT.CL. 288, 291; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319; SEE ALSO NEW YORK, NEW HAVEN AND HARTFORD RAILROAD CO. V. UNITED STATES, 355 U.S. 253, 255- 56, FOOTNOTE 4.
ON THE BASIS OF THE EVIDENCE THUS FAR OF RECORD HERE, WE ARE NOT CONVINCED THAT YOU HAVE MET THE BURDEN OF PROVING THAT THE SETOFF WAS IMPROPER. ACCORDINGLY, WE WOULD NOT BE WARRANTED IN REFUNDING THE AMOUNTS SO RECOVERED.