B-143594, AUGUST 15, 1960, 40 COMP. GEN. 101

B-143594, AUGUST 15, 1960, 40 COMP. GEN. 101

TRANSPORTATION - OVERPAYMENTS - RECOVERY - ABATEMENT PENDING COURT ACTION CANCELLATION AT THE REQUEST OF A MOTOR CARRIER OF OVERPAYMENTS OF TRANSPORTATION CHARGES ON SHIPMENTS OF RADIAL CYLINDER AND/OR JET PROPULSION-TYPE COMBUSTION ENGINES, BASED ON THE APPLICATION OF A RELEASED VALUE CLASSIFICATION RATING AND ABATEMENT OF COLLECTION ACTION BY THE GENERAL ACCOUNTING OFFICE UNTIL A FINAL DETERMINATION IS MADE ON A SUIT FILED BY ANOTHER CARRIER INVOLVING THE SAME LEGAL ISSUES, MIGHT LOSE TO THE GOVERNMENT ITS RIGHT SPECIFICALLY PROVIDED BY STATUTE OF RECOVERING IMPROPER CHARGES IN VIEW OF THE REDUCTION TO THREE YEARS IN THE TIME WHICH THE GOVERNMENT HAS TO MAKE DEDUCTIONS UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66; THEREFORE, THE ACTION REQUESTED BY THE CARRIER IS NOT WARRANTED.

TO THE STRICKLAND TRANSPORTATION COMPANY, INCORPORATED, AUGUST 15, 1960:

REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1960, WITH ENCLOSURES, REGARDING THE ACTION TAKEN BY OUR TRANSPORTATION DIVISION IN REJECTING YOUR PROTEST TO THE AUDIT ACTION ON YOUR BILL NO. 94841-9/59-A-8610, STC CLAIM NO. GAO 10389-60, AND EIGHT OTHERS LISTED THEREIN, FOR TRANSPORTATION CHARGES ON SHIPMENTS OF INTERNAL COMBUSTION ENGINES, RADIAL AND/OR JET PROPULSION TYPE. WE ALSO HAVE YOUR LETTER OF JULY 26, 1960, REGARDING THE REJECTION OF YOUR PROTEST TO THE AUDIT ACTION ON YOUR BILLS NOS. 125743-9/59-A-8541 AND 115963-9/59-A-8519, STC CLAIM NOS. GAO 10391/60 AND 10393/60, INVOLVING SIMILAR SHIPMENTS.

UNDER OUR PROCEDURES, NOTICES OF OVERCHARGE ORDINARILY ARE NOT REVIEWABLE BY THE COMPTROLLER GENERAL, SINCE NO FINAL ACTION AS BY SETTLEMENT CERTIFICATE HAS BEEN TAKEN ON THE OVERCHARGE CLAIMS. THE PROCEDURES FOR RECONSIDERATION AND REVIEW OF TRANSPORTATION CLAIM SETTLEMENTS ARE OUTLINED IN TITLE 4 OF THE CODE OF FEDERAL REGULATIONS, 1960 SUPPLEMENT, SUBCHAPTER D. FOR YOUR READY REFERENCE WE QUOTE SECTIONS 55.1 AND 55.2 THEREOF:

55.1 PROTEST TO SETTLEMENT ACTION. IF A CLAIMANT DISAGREES WITH THE ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON ITS CLAIM, A LETTER MAY BE ADDRESSED TO THE DIRECTOR, TRANSPORTATION DIVISION, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., REQUESTING RECONSIDERATION OF SUCH ACTION. SUCH LETTERS SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND FACTUAL DATA AND FURNISH SUCH ADDITIONAL INFORMATION AND DOCUMENTATION AS IS RELIED UPON TO RAISE SUBSTANTIVE DOUBT AS TO THE CLAIM SETTLEMENT ACTION.

55.2 REVIEW BY THE COMPTROLLER GENERAL OF THE UNITED STATES. IF THE CLAIMANT DESIRES A REVIEW OF THE FINAL ACTION TAKEN BY THE TRANSPORTATION DIVISION UPON SETTLEMENT, HE MAY REQUEST REVIEW BY THE COMPTROLLER GENERAL. THE REQUEST SHOULD BE ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES, U.S. GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., AND SHOULD SET FORTH IN DETAIL THE LEGAL, TECHNICAL, AND FACTUAL REASONS URGED AS WARRANTING REVISION OF THE ACTION TAKEN.

THUS, THE FORM 1003 IS SIMPLY A REQUEST FOR REFUND OF THE AMOUNT DETERMINED ADMINISTRATIVELY TO HAVE BEEN OVERPAID TO YOU. IF YOU DECLINE TO MAKE THE REFUND REQUESTED, AND THE TRANSPORTATION DIVISION CONSIDERS THE REASONS STATED IN THE PROTEST TO BE INADEQUATE TO SUPPORT THE AMOUNTS ORIGINALLY PAID, COLLECTION OF THE AMOUNTS CONSIDERED OVERCHARGED WILL BE MADE FROM FUNDS OTHERWISE DUE YOUR COMPANY PURSUANT TO PUBLIC LAW 85-762 DATED AUGUST 26, 1958, 72 STAT. 859, 49 U.S.C. 66. IF AND WHEN SUCH DEDUCTIONS ARE MADE, YOU WILL BE PRIVILEGED TO FILE A SUPPLEMENTAL BILL WITH THE TRANSPORTATION DIVISION TO RECOVER OR RECLAIM ALL OR ANY PART OF THE AMOUNTS SO DEDUCTED AND SUCH BILL WILL BE MADE THE SUBJECT OF A SETTLEMENT CERTIFICATE PREPARED IN THE TRANSPORTATION DIVISION, THUS EVIDENCING ITS FINAL ACTION ON YOUR CLAIMS. IF YOU DO NOT AGREE WITH THE ACTION SO TAKEN, THE MATTER MAY THEN BE SUBMITTED TO THE COMPTROLLER GENERAL FOR A REVIEW OF THE FINAL ACTION TAKEN IN THE TRANSPORTATION DIVISION.

AS YOU KNOW THE AUDIT ACTION TAKEN WAS BASED UPON THE HOLDING OF THE INTERSTATE COMMERCE COMMISSION IN UPJOHN COMPANY V. PENNSYLVANIA RAILROAD CO., ET AL., 306 I.C.C. 325. THERE IS ENCLOSED A COPY OF DECISION DATED JANUARY 7, 1960, 39 COMP. GEN. 501, WHICH HELD, IN THE CASE OF A SIMILAR SHIPMENT, THAT THE LOWER RELEASED VALUE CLASSIFICATION RATING BASIS IS REQUIRED TO BE APPLIED WHEN THE ENGINES ARE TENDERED TO THE ORIGIN CARRIER RELEASED TO THE VALUATION APPLICABLE TO SUCH RATING. SUCH DECISION QUOTED WITH APPROVAL FROM A LETTER DATED DECEMBER 16, 1959, OF THE INTERSTATE COMMERCE COMMISSION (A COPY OF WHICH IS ALSO ENCLOSED FOR YOUR READY REFERENCE), EXPRESSING THE OPINION THAT THE DECISION OF THE INTERSTATE COMMERCE COMMISSION IN THE UPJOHN CASE IS EQUALLY APPLICABLE TO THE EFFECT TO BE GIVEN ITEM NO. 61243 OF SOUTHERN MOTOR CARRIER RATE CONFERENCE TARIFF NO. 515-C, MF 1I.C.C. NO. 960, WHICH PROVIDES AN UNRELEASED EXCEPTION RATING ON RADIAL CYLINDER OR JET PROPULSION TYPE INTERNAL COMBUSTION ENGINES. SEE, TOO, IN THIS CONNECTION, PAGE 8, TRAFFIC WORLD FOR JULY 23, 1960.

IN YOUR LETTER OF JULY 22, 1960, YOU STATE THAT YOU WERE ADVISED UNDER DATE OF JULY 20, 1960, BY T.I.M.E. INC., OF LUBBOCK, TEXAS, THAT IT HAD FILED SUIT ON THIS SUBJECT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, LUBBOCK DIVISION, TO BE HEARD BY THE HONORABLE JOSEPH B. DOOLEY. WHILE YOU CONCEDE THAT YOUR PROPOSED HANDLING OF THE MATTER DOES NOT CONFORM STRICTLY WITH THE PROVISIONS OF THE CODE OF FEDERAL REGULATIONS AS QUOTED ABOVE, YOU REQUEST THAT WE EITHER CANCEL THE OVERPAYMENTS ENTIRELY FROM YOUR ACCOUNT OR CAUSE THEM TO BE WITHDRAWN FROM OUR DEDUCTION PROCEDURE PENDING THE FINAL JUDICIAL DETERMINATION OF THE CASE MENTIONED ABOVE, WITHOUT SUBMITTING ANY LEGAL, TECHNICAL OR FACTUAL REASONS WHICH WOULD WARRANT A REVISION OF OUR POSITION IN THE MATTER AS STATED IN THE DECISION OF JANUARY 7, 1960.

AN EXAMINATION OF THE ENCLOSURES TO YOUR LETTERS OF JULY 22 AND 26, 1960, SHOWS THAT THE 24 BILLS OF LADING COVERING THE SHIPMENTS INVOLVED WERE ISSUED BETWEEN APRIL 28, 1959, AND SEPTEMBER 16, 1959. THUS, ALL OF THE SHIPMENTS INVOLVED MOVED SUBSEQUENT TO THE EFFECTIVE DATE OF THE ACT OF AUGUST 26, 1958, 72 STAT. 859, AMENDING THE INTERSTATE COMMERCE ACT BY REDUCING TO A PERIOD OF THREE YEARS THE TIME WITHIN WHICH DEDUCTIONS MAY BE MADE UNDER SECTION 322 OF THE TRANSPORTATION ACT OF 1940, 49 U.S.C. 66, FOR OVERCHARGES DETERMINED IN OUR AUDIT OR PAYMENTS FOR TRANSPORTATION CHARGES. IF SUCH DEDUCTIONS ARE NOT SO MADE, THE RIGHT TO DEDUCT APPEARS TO BE LOST. ALSO, THE FACT THAT A SUIT, SUCH AS YOU MENTION, MAY HAVE BEEN FILED DOES NOT NECESSARILY INDICATE A FINAL JUDICIAL DETERMINATION OF THE ISSUE WILL RESULT THEREFROM SINCE SUCH SUITS ARE OFTEN DISCONTINUED, THE ITEMS DROPPED FROM THE SUIT, AND THE LIKE. ACCORDINGLY, IN THE ABSENCE OF SOME COMPELLING REASON WHICH WOULD WARRANT A REVISION OF OUR POSITION IN THIS MATTER AS STATED IN THE DECISION OF JANUARY 7, 1960, AND IN VIEW OF THE TIME LIMITATION CONTAINED IN THE ACT OF AUGUST 26, 1958, WE WOULD NOT BE WARRANTED IN DELAYING OUR COLLECTION ACTION OF THESE APPARENT OVERCHARGES PENDING A FINAL JUDICIAL DETERMINATION OF THE SUIT WHICH YOU STATE HAS BEEN FILED BY T.I.M.E., INC., REGARDING THIS QUESTION.

IN THE EVENT A FINAL JUDICIAL DETERMINATION OF THIS ISSUE IN THE SUIT FILED IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS SHOULD BE ADVERSE TO OUR CONCLUSION IN THE DECISION OF JANUARY 7, 1960, AND YOU FEEL THAT BASED THEREON ADDITIONAL AMOUNTS ARE DUE FURTHER CONSIDERATION WILL BE GIVEN THERETO AT YOUR REQUEST AT THAT TIME IN THE INTERIM, WE PERCEIVE NO PROPER BASIS FOR MODIFYING OUR AUDIT ACT OR PROCEDURES TO RECOVER BY DEDUCTION FROM SUBSEQUENT BILLS-- WHICH RIGHT WAS SPECIFICALLY RESERVE TO THE GOVERNMENT BY 49 U.S.C. 66 -- AMOUNTS DEEMED IMPROPERLY TO HAVE BEEN PAID.