B-147064, OCT. 11, 1961

B-147064: Oct 11, 1961

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FOR AMOUNTS YOU ALLEGE ARE STILL DUE IN CONNECTION WITH THE REQUISITION OF THE TITANIA-PALAST-GESELLSCHAFT IN BERLIN. THE BASIS OF YOUR RECLAIM IS SET FORTH IN YOUR LETTER OF MARCH 28. 402 WAS THE SUBJECT OF OUR SETTLEMENT DATED JUNE 1. A PERIOD FOR WHICH THE MILITARY AUTHORITIES WERE RESPONSIBLE. IN YOUR RECLAIM YOU ALLEGE THAT THE UNITED STATES IS OBLIGATED TO YOU AS FOLLOWS: TABLE 1. 225 MONTHLY WAS PAID FROM 1945 THROUGH 1948 FOR RENTAL COMPENSATION FOR INVENTORY. IT APPEARS FROM THE RECORD THAT DURING THOSE YEARS A MORE INTENSIVE USE OF THE INVENTORY WAS MADE AND HENCE THE MONTHLY RENT PAID AT THAT TIME IS NOT A PROPER MEASURE FOR THE PERIOD HERE CONCERNED. THAT YOU ARE ENTITLED TO BE PAID AT THE RATE OF DM 1.

B-147064, OCT. 11, 1961

TO HUGO LEMKE, TITANIA-PALAST-GESELLSCHAFT:

BY LETTER DATED AUGUST 15, 1961, THE DEPARTMENT OF STATE TRANSMITTED FOROUR CONSIDERATION YOUR RECLAIM IN THE AMOUNT OF DM 548,615.60, FOR AMOUNTS YOU ALLEGE ARE STILL DUE IN CONNECTION WITH THE REQUISITION OF THE TITANIA-PALAST-GESELLSCHAFT IN BERLIN. THE BASIS OF YOUR RECLAIM IS SET FORTH IN YOUR LETTER OF MARCH 28, 1957, AND SUPPLEMENTARY CORRESPONDENCE TO THE AMERICAN EMBASSY, BONN, GERMANY, AND INCLUDES AMOUNTS FOR (1) RENTAL COMPENSATION FOR INVENTORY, (2) ADMINISTRATIVE EXPENSES AND INSURANCE PREMIUMS, (3) LOSS OF INCOME, AND (4) INTEREST ON RENTAL COMPENSATION.

YOUR ORIGINAL CLAIM IN THE AMOUNT OF DM 778,402 WAS THE SUBJECT OF OUR SETTLEMENT DATED JUNE 1, 1956, WHEREIN OUR OFFICE AUTHORIZED PAYMENT IN THE AMOUNT OF DM 241,757, AND DISALLOWED THE BALANCE WHICH REPRESENTED RENTAL FOR THE PERIOD OCTOBER 1, 1948, TO DECEMBER 31, 1948, A PERIOD FOR WHICH THE MILITARY AUTHORITIES WERE RESPONSIBLE; LOSS OF INCOME; AND THE AMOUNT CLAIMED FOR BUILDING CHANGES.

IN YOUR RECLAIM YOU ALLEGE THAT THE UNITED STATES IS OBLIGATED TO YOU AS FOLLOWS:

TABLE

1. RENTAL COMPENSATION FOR INVENTORY DM 63,872.00

2. ADMINISTRATIVE EXPENSES AND INSURANCE PREMIUMS 18,089.60

3. LOSS OF INCOME 298,768.00

4. INTEREST ON RENTAL COMPENSATION 167,886.00

UNDER ITEM NO. 1 YOU RELY UPON THE FACT THAT DM 3,225 MONTHLY WAS PAID FROM 1945 THROUGH 1948 FOR RENTAL COMPENSATION FOR INVENTORY. IT APPEARS FROM THE RECORD THAT DURING THOSE YEARS A MORE INTENSIVE USE OF THE INVENTORY WAS MADE AND HENCE THE MONTHLY RENT PAID AT THAT TIME IS NOT A PROPER MEASURE FOR THE PERIOD HERE CONCERNED--- JANUARY 1, 1949, THROUGH SEPTEMBER 1, 1951. HOWEVER, IT HAS BEEN DETERMINED BY THE SENATOR FOR FINANCE, BERLIN, AND APPROVED BY THE DEPARTMENT OF STATE, THAT YOU ARE ENTITLED TO BE PAID AT THE RATE OF DM 1,398 FOR THE 32 MONTHS HERE INVOLVED. OF THIS RATE, YOU HAVE PREVIOUSLY BEEN PAID AT THE RATE OF DM 1,229 MONTHLY. BASED UPON THE FOREGOING WE ARE ALLOWING PAYMENT OF THE DIFFERENCE BETWEEN THE MONTHLY RATES OF DM 1,398 AND DM 1,229, FOR 32 MONTHS FOR A TOTAL OF DM 5,408 AND DISALLOWING THE BALANCE UNDER ITEM NO. 1.

ADMINISTRATIVE EXPENSES AND INSURANCE PREMIUMS WERE ORIGINALLY DELETED AS FACTORS IN DETERMINING THE REASONABLE COMPENSATION FOR THE USE OF THE REAL PROPERTY. HOWEVER, IT IS THE VIEW OF THE SENATOR OF FINANCE, AS STATED IN HIS LETTER OF APRIL 2, 1958, AND CONCURRED IN BY THE DEPARTMENT OF STATE, THAT SUCH ITEMS SHOULD BE CONSIDERED. COMPETENT AUTHORITIES HAVE DETERMINED THAT ADMINISTRATIVE COSTS IN THE AMOUNT OF DM 5,000 PER ANNUM (DM 416.67 PER MONTH) AND INSURANCE COSTS IN THE AMOUNT OF DM 1,782.48 PER ANNUM (DM 148.54 PER MONTH) SHOULD HAVE BEEN RECOGNIZED. ACCORDINGLY, THERE WILL BE ALLOWED ON YOUR RECLAIM THE AMOUNT OF DM 18,086.72 FOR ITEM NO. 2 TO COVER THE 32 MONTHS HERE INVOLVED AS ADMINISTRATIVELY RECOMMENDED.

YOUR RECLAIM UNDER ITEM NO. 3 FOR LOSS OF INCOME IS DISALLOWED IN ITS ENTIRETY. THE ADMINISTRATIVE OFFICE REPORTS THAT NO COMPENSATION FOR LOSS OF INCOME IS ALLOWED TO OWNERS OF REQUISITIONED PROPERTY OF THIS TYPE, AND THAT THE RENTALS FIXED ARE CONSIDERED TO COVER ENTIRELY THE USE OF THE BUILDING. WHILE YOU MAY DISPUTE THE ADEQUACY OF RENT TO COVER THE LOSS OF INCOME, THIS IS A QUESTION OF FACT PROPERLY FOR DETERMINATION BY THE ADMINISTRATIVE OFFICE. SINCE THE ADMINISTRATIVE OFFICE HAS DETERMINED THAT NO ADDITIONAL PAYMENT SHOULD BE MADE FOR LOSS OF INCOME, WE MAY NOT AUTHORIZE ALLOWANCE OF THE ADDITIONAL AMOUNT CLAIMED.

THE LAST ITEM OF YOUR RECLAIM IS FOR INTEREST ON RENTAL COMPENSATION. IS WELL SETTLED THAT THE PAYMENT OF INTEREST BY THE UNITED STATES ON ITS UNPAID ACCOUNTS OR CLAIMS MAY NOT BE MADE EXCEPT WHERE INTEREST IS STIPULATED BY CONTRACT OR IS DIRECTED BY STATUTE. ANGARICA V. BAYARD, 127 U.S. 251; UNITED STATES V. NORTH AMERICAN TRANSPORTATION AND TRADING CO., 253 U.S. 330; SEABOARD AIR LINE RY.CO. V. UNITED STATES, 261 U.S. 299; SMYTH V. UNITED STATES, 302 U.S. 329; UNITED STATES V. HOTEL CO., 329 U.S. 585. SINCE THERE IS NO CONTRACT STIPULATION NOR GOVERNING STATUTE DIRECTING PAYMENT OF INTEREST IN THE PRESENT CASE, YOUR CLAIM FOR INTEREST MUST BE DENIED.

A SUPPLEMENTARY SETTLEMENT WILL ISSUE IN DUE COURSE AUTHORIZING PAYMENT OF DM 23,494.72, AND DISALLOWING THE BALANCE OF YOUR RECLAIM.