B-147404, JAN. 24, 1962

B-147404: Jan 24, 1962

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

YOUR REQUEST IS PREDICATED PRIMARILY UPON THE FACT THAT DURING THE PERIOD YOUR DAILY REPORTS (FORM 1494) OF DUTY PERFORMED WERE "SIGNED" OR "APPROVED" BY YOUR SUPERVISORS. SUCH ACTION YOU BELIEVE WAS THE ONLY ACTION NEEDED FOR THE PURPOSE OF OVERTIME COMPENSATION FOR HOURS OF DUTY IN EXCESS OF 40 HOURS PER WEEK. THAT AUTHORITY DELEGATED TO YOUR SUPERVISORS FOR SIGNING OR APPROVAL OF THE FORM WAS THE AUTHORIZATION OR APPROVAL REQUIRED BY THE ACT. THE PERTINENT PART OF WHICH IS AS FOLLOWS: "PURSUANT TO YOUR REQUEST FOR FACTUAL INFORMATION. WE HAVE ASKED OUR REGIONAL OFFICE IN SAN FRANCISCO TO IDENTIFY THE OFFICIALS WHO APPROVED MR. TO STATE WHETHER THOSE OFFICIALS WERE AUTHORIZED TO ORDER OR APPROVE OVERTIME SERVICES.

B-147404, JAN. 24, 1962

TO MR. KENT A. BROWN:

YOUR LETTER POSTMARKED OCTOBER 5, 1961, SUBMITTED CERTAIN INFORMATION FOR CONSIDERATION CONCERNING VARIOUS PARTS OF YOUR SERVICE AS AN INVESTIGATOR FROM JUNE 23, 1951, TO SEPTEMBER 21, 1958. ALSO, YOU REQUESTED REVIEW OF OUR SETTLEMENT OF SEPTEMBER 22, 1961, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION FOR THAT PERIOD AS AN EMPLOYEE OF THE TREASURY DEPARTMENT, UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

YOUR REQUEST IS PREDICATED PRIMARILY UPON THE FACT THAT DURING THE PERIOD YOUR DAILY REPORTS (FORM 1494) OF DUTY PERFORMED WERE "SIGNED" OR "APPROVED" BY YOUR SUPERVISORS. SUCH ACTION YOU BELIEVE WAS THE ONLY ACTION NEEDED FOR THE PURPOSE OF OVERTIME COMPENSATION FOR HOURS OF DUTY IN EXCESS OF 40 HOURS PER WEEK, AND THAT AUTHORITY DELEGATED TO YOUR SUPERVISORS FOR SIGNING OR APPROVAL OF THE FORM WAS THE AUTHORIZATION OR APPROVAL REQUIRED BY THE ACT. HOWEVER, AT OUR REQUEST FOR A REPORT UPON THE FACTS ALLEGED IN YOUR LETTER, THE OFFICE OF THE COMMISSIONER OF INTERNAL REVENUE, HAS FURNISHED US SPECIFIC REPORTS IN YOUR CASE, THE PERTINENT PART OF WHICH IS AS FOLLOWS:

"PURSUANT TO YOUR REQUEST FOR FACTUAL INFORMATION, WE HAVE ASKED OUR REGIONAL OFFICE IN SAN FRANCISCO TO IDENTIFY THE OFFICIALS WHO APPROVED MR. BROWN'S DAILY REPORTS ON FORM 1494 DURING THE PERIODS CITED BY HIM, AND TO STATE WHETHER THOSE OFFICIALS WERE AUTHORIZED TO ORDER OR APPROVE OVERTIME SERVICES. THIS INFORMATION WAS NOT FURNISHED IN OUR LETTER OF SEPTEMBER 12, 1961, TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, BECAUSE WE DO NOT CONSIDER IT RELEVANT IN A DETERMINATION OF MR. BROWN'S ENTITLEMENT TO COMPENSATION FOR ANY OVERTIME REPORTED BY HIM ON THESE FORMS. AS INDICATED IN OUR LETTER OF SEPTEMBER 12, THE FORM 1494 HAS NO STATUS AS A DOCUMENT RELATING TO THE AUTHORIZATION OR APPROVAL OF OVERTIME SERVICES FOR THE PURPOSE OF COMPENSATION.

"ACCORDINGLY, THE APPROVAL BY A SUPERVISOR OF AN INVESTIGATOR'S REPORT ON THIS FORM DOES NOT CONSTITUTE THE STATUTORY "ORDERED AND APPROVED" REQUIREMENT FOR THE PAYMENT OF OVERTIME COMPENSATION. THE INTERNAL REVENUE SERVICE VIEWS THIS PRINCIPLE AS HAVING BEEN RECOGNIZED BY THE UNITED STATES COURT OF CLAIMS IN ITS DECISION OF FEBRUARY 5, 1952, CASES NOS. 49652, 49670, AND 49676.

"THE ALCOHOL AND TOBACCO TAX ACTIVITY REQUIRES ITS INVESTIGATORS TO SUBMIT DAILY REPORTS ON FORM 1494 SHOWING, AMONG OTHER DATA, DUTIES PERFORMED AND HOURS WORKED. IN VIEW OF THE FREEDOM WITH WHICH INVESTIGATORS MUST OPERATE, IT IS OFTEN DIFFICULT TO CONTROL THEIR HOURS OF DUTY, OR EVEN TO VERIFY WITH ANY ACCURACY THE TIME DEVOTED TO THEIR INVESTIGATIONS. THE DAILY REPORTS, THEREFORE, PROVIDE SOME DEGREE OF SUPERVISION OVER THEIR OPERATIONS AND A RECORD OF DUTIES PERFORMED. AFTER APPROVAL, EACH REPORT IS SENT TO THE EMPLOYEE'S HEADQUARTERS OFFICE TO SHOW THAT HE HAD WORKED AND SHOULD BE PAID FOR THAT DAY. IT IS RETAINED IN THE APPROPRIATE OFFICE OF THE ALCOHOL AND TOBACCO TAX ACTIVITY, AS IT IS NOT A PAYROLL DOCUMENT OR A DOCUMENT FOR THE RECORDING OF HOURS OF DUTY.

"AS STATED IN YOUR LETTER, THE INTERNAL REVENUE SERVICE HAS ISSUED REGULATIONS GOVERNING THE PAYMENT OF PREMIUM COMPENSATION ON AN ANNUAL BASIS, AS AUTHORIZED IN 5 U.S.C 926, TO PERSONNEL WHO MEET THE REQUIREMENTS OF THE CIVIL SERVICE COMMISSION REGULATIONS PERTAINING TO SUCH COMPENSATION. AT YOUR REQUEST, WE HAVE ASKED THE SAN FRANCISCO REGIONAL OFFICE TO ADVISE US OF THE EXTENT TO WHICH MR. BROWN MET, OR FAILED TO MEET, THESE REQUIREMENTS DURING THE PERIOD FROM JULY 1, 1955, TO SEPTEMBER 20, 1958.'

FURTHER, REGARDING PREMIUM COMPENSATION PROVISIONS OF SECTION 401 OF THE ACT, 5 U.S.C. 926, THE REGIONAL MANAGEMENT OFFICER AT SAN FRANCISCO REPORTED, IN REPLY TO THE REQUEST REFERRED TO IN THE LAST PARAGRAPH OF THE ABOVE-QUOTED REPORT, THAT CONSIDERATION WAS GIVEN WHETHER YOU HAD ELIGIBILITY FOR SUCH PREMIUM COMPENSATION ON A PERCENTAGE ANNUAL BASIS, BUT IT WAS DETERMINED THAT THE DUTIES YOU PERFORMED DID NOT SHOW SUFFICIENT QUALIFYING TIME TO MEET THE REQUIREMENTS FOR SUCH COMPENSATION BEGINNING JULY 1, 1955.

FROM THE ADMINISTRATIVELY REPORTED FACTS WHICH WE MUST PRESUME TO BE CORRECT IN THE ABSENCE OF EVIDENCE TO OVERCOME THAT PRESUMPTION, IT APPEARS ESTABLISHED THAT THE OFFICERS WHO "APPROVED" YOUR DAILY REPORTS ON FORMS 1494 DURING THE PERIOD COVERED BY YOUR CLAIM DID NOT EXERCISE AUTHORITY TO ORDER OR APPROVE OVERTIME FOR PURPOSES OF 5 U.S.C. 911, 912 OR 926. THE POSITION OF THE INTERNAL REVENUE SERVICE IS THAT "APPROVAL OF DAILY REPORTS IS A SUPERVISORY FUNCTION BEARING NO RELATION TO THE APPROVAL OF OVERTIME, REGARDLESS OF WHETHER THE RESPONSIBILITY AND AUTHORITY FOR BOTH FUNCTIONS MAY BE VESTED IN THE SAME OFFICER.'

IN THE LIGHT OF THE ADMINISTRATIVE REPORTS FURNISHED US, THE SETTLEMENT OF SEPTEMBER 22, 1961, MUST BE AND IS SUSTAINED.