B-140327, AUG. 26, 1959

B-140327: Aug 26, 1959

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DISALLOWING YOUR CLAIM FOR REFUND OF LICENSE FEES WHICH WERE PAID BY YOU OVER A PERIOD OF YEARS UNDER THE PERISHABLE AGRICULTURAL COMMODITIES ACT OF 1930. YOU INQUIRED OF THE DEPARTMENT OF AGRICULTURE AS TO WHETHER YOU WERE OBLIGED TO OBTAIN A LICENSE FOR THE HANDLING OF ONLY ONION SETS AND ONION PLANTS. ADDRESSED TO YOU BY THE DEPARTMENT OF AGRICULTURE WHEREIN IT IS STATED THAT THE ONION PRODUCTS YOU INQUIRED ABOUT ARE NOT COVERED BY THE PERISHABLE AGRICULTURAL COMMODITIES ACT. YOU NOW SAY THAT YOU NEVER RECEIVED THIS LETTER AND YOU FEEL THAT YOU ARE ENTITLED TO BE REFUNDED ALL LICENSE FEES NOT OTHERWISE PRECLUDED BY THE BARRING ACT OF OCTOBER 9. 7 CFR 46.7 PROVIDE FOR THE REFUND OF FEES WHERE A LICENSE IS DENIED.

B-140327, AUG. 26, 1959

TO MR. M. C. PURYEAR:

YOUR LETTER OF JULY 13, 1959, REQUESTS REVIEW OF OUR SETTLEMENT OF JULY 9, 1959, Z-1979983, DISALLOWING YOUR CLAIM FOR REFUND OF LICENSE FEES WHICH WERE PAID BY YOU OVER A PERIOD OF YEARS UNDER THE PERISHABLE AGRICULTURAL COMMODITIES ACT OF 1930, 46 STAT. 531, 7 U.S.C. 499A-499S.

THE ACT REQUIRES THE ISSUING OF LICENSES TO THOSE PERSONS ENGAGING IN THE BUSINESS OF COMMISSION MERCHANT, DEALER, OR BROKER, AS DEFINED IN THE ACT, UPON THEIR FILING WITH THE SECRETARY OF AGRICULTURE A PROPERLY PREPARED APPLICATION ACCOMPANIED BY THE PRESCRIBED FEE.

THE RECORD REVEALS THAT YOU FIRST OBTAINED SUCH A LICENSE ON JANUARY 31, 1955. BY LETTER OF FEBRUARY 13, 1936, YOU INQUIRED OF THE DEPARTMENT OF AGRICULTURE AS TO WHETHER YOU WERE OBLIGED TO OBTAIN A LICENSE FOR THE HANDLING OF ONLY ONION SETS AND ONION PLANTS. THE FILE CONTAINS A PHOTOSTATIC COPY OF A LETTER DATED FEBRUARY 21, 1936, ADDRESSED TO YOU BY THE DEPARTMENT OF AGRICULTURE WHEREIN IT IS STATED THAT THE ONION PRODUCTS YOU INQUIRED ABOUT ARE NOT COVERED BY THE PERISHABLE AGRICULTURAL COMMODITIES ACT. YOU NOW SAY THAT YOU NEVER RECEIVED THIS LETTER AND YOU FEEL THAT YOU ARE ENTITLED TO BE REFUNDED ALL LICENSE FEES NOT OTHERWISE PRECLUDED BY THE BARRING ACT OF OCTOBER 9, 1940, 31 U.S.C. 71C.

THE PERISHABLE AGRICULTURAL COMMODITIES ACT CONTAINS NO PROVISION FOR THE REFUNDING OF FEES AFTER THE ISSUANCE OF A LICENSE. REGULATIONS ISSUED BY THE SECRETARY OF AGRICULTURE PURSUANT TO THE ACT, 7 CFR 46.7 PROVIDE FOR THE REFUND OF FEES WHERE A LICENSE IS DENIED. REFUNDS ARE ALSO MADE IN THESE INSTANCES WHERE THE DEPARTMENT IS UNABLE TO ISSUE LICENSES ON THE BASIS OF DEFECTIVE OR INCOMPLETE APPLICATIONS. HOWEVER, THERE EXISTS NO LEGAL AUTHORITY UNDER WHICH REFUNDS CAN BE ALLOWED FOR FEES NOT IMPROPERLY COLLECTED.

IN THIS CONNECTION, YOU WERE ADVISED IN THE LETTER OF FEBRUARY 21, 1936, TO RETURN THE LICENSE CERTIFICATE IF YOU DID NOT INTEND TO ENGAGE IN TRANSACTIONS COMING WITHIN THE PROVISIONS OF THE ACT. HOWEVER, YOU SUBSEQUENTLY REMITTED THE RENEWAL FEE, AND NOTHING FURTHER WAS HEARD FROM YOU REGARDING THE MATTER UNTIL JANUARY 20, 1959.

SINCE A LICENSE, UNDER THE ACT, CONSTITUTES NOTHING MORE THAN AN AUTHORIZATION TO ENGAGE IN THE BUSINESSES SPECIFIED THEREIN, A LICENSEE WHO NEGLECTS OR FAILS TO ENGAGE OR CONTINUE IN SUCH ACTIVITIES CANNOT IMPUTE FAULT OR NEGLIGENCE TO THE GOVERNMENT IN REISSUING HIS LICENSE UPON RECEIPT OF HIS VOLUNTARILY REMITTED RENEWAL FEES.

THEREFORE, OUR SETTLEMENT OF JULY 9, 1959, DISALLOWING YOUR CLAIM FOR REFUND OF THE LICENSE FEES INVOLVED IS SUSTAINED.