B-149985, OCT. 19, 1962

B-149985: Oct 19, 1962

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REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER COVERING A PAYMENT IN LIEU OF TAXES TO THE RECEIVER OF TAXES. FROM THE INFORMATION FURNISHED IN YOUR LETTER THE FACTS CONCERNING THE REAL PROPERTY IN QUESTION APPEAR TO BE AS FOLLOWS: THE BURLINGTON ORDNANCE PLANT WAS FORMERLY OWNED BY THE RECONSTRUCTION FINANCE CORPORATION (RFC) AND TRANSFERRED TO THE GENERAL SERVICES ADMINISTRATION (PROBABLY IN 1950) AND THEN TO THE DEPARTMENT OF THE ARMY IN 1951. THE BURLINGTON ORDNANCE PLANT WAS FORMERLY OPERATED AS AN AMMUNITION SHELL MANUFACTURING PLANT BY THE RHEEM MANUFACTURING CO. THE MACHINERY WHICH WAS FORMERLY USED FOR MANUFACTURING IS MOSTLY STILL SITTING IN THE SAME PLACE WHERE IT WAS FORMERLY USED.

B-149985, OCT. 19, 1962

TO CAPTAIN V. W. BOZYMSKI:

BY LETTER DATED SEPTEMBER 25, 1962, MAJOR DEFORREST BROOKS, FINANCE CORPS, FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS 49, INDIANA, FORWARDED YOUR LETTER OF AUGUST 31, 1962, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER COVERING A PAYMENT IN LIEU OF TAXES TO THE RECEIVER OF TAXES, CITY OF BURLINGTON, NEW JERSEY, ON THE BURLINGTON ORDNANCE PLANT, UNDER THE ACT OF AUGUST 12, 1955, PUBLIC LAW 388, 69 STAT. 721, AS AMENDED, 40 U.S.C. 521, 524.

FROM THE INFORMATION FURNISHED IN YOUR LETTER THE FACTS CONCERNING THE REAL PROPERTY IN QUESTION APPEAR TO BE AS FOLLOWS:

THE BURLINGTON ORDNANCE PLANT WAS FORMERLY OWNED BY THE RECONSTRUCTION FINANCE CORPORATION (RFC) AND TRANSFERRED TO THE GENERAL SERVICES ADMINISTRATION (PROBABLY IN 1950) AND THEN TO THE DEPARTMENT OF THE ARMY IN 1951. TITLE HAS BEEN HELD CONTINUOUSLY BY THE UNITED STATES SINCE TRANSFER FROM RFC.

THE BURLINGTON ORDNANCE PLANT WAS FORMERLY OPERATED AS AN AMMUNITION SHELL MANUFACTURING PLANT BY THE RHEEM MANUFACTURING CO. UNDER A CONTRACT WITH THE DEPARTMENT OF THE ARMY (A GOVERNMENT OWNER-CONTRACTOR OPERATED PLANT). ALL MANUFACTURING AND ALL INDUSTRIAL TYPE ACTIVITIES CEASED IN FEBRUARY 1956. SINCE THEN THE PLANT HAS BEEN IDLE. THE MACHINERY WHICH WAS FORMERLY USED FOR MANUFACTURING IS MOSTLY STILL SITTING IN THE SAME PLACE WHERE IT WAS FORMERLY USED. OCCASIONALLY IT IS INSPECTED FOR DETERIORATION AND A RUST-INHIBITOR OR OTHER PRESERVATIVE APPLIED. THE ARMY ORDNANCE DISTRICT HAS AN ANNUAL CONTRACT WITH THE KENNEDY VAN SAUN MF.CO. TO PERFORM THAT INSPECTION AND MAINTENANCE WORK, AS WELL AS TO PERFORM GUARD AND FIRE PROTECTION SERVICES. THIS IS KNOWN AS A CONTRACT FOR MAINTENANCE OF LAID-AWAY EQUIPMENT.

APPROXIMATELY 60 PERCENT OF THE TOTAL FLOOR SPACE IS DEVOTED TO THE STORAGE OF THAT LAID-AWAY EQUIPMENT. APPROXIMATELY 40 PERCENT OF THE TOTAL FLOOR SPACE IS UTILIZED AS A WAREHOUSE FOR STORING INDUSTRIAL TYPE EQUIPMENT BELONGING TO THE DEPARTMENT OF DEFENSE, FOR WHICH THE GENERAL SERVICES ADMINISTRATION ACTS AS THE CARETAKER. IN ADDITION, THERE IS A VERY SMALL OFFICE USED BY THE ARMY CORPS OF ENGINEERS WHICH CONDUCTS A DREDGING OPERATION ON THE DELAWARE RIVER WHICH FLOWS PAST THE PROPERTY. THE ABOVE THREE CATEGORIES (TWO TYPES OF STORAGE AND ONE SMALL OFFICE) COMPRISE THE ONLY ACTIVITY BEING PERFORMED AT THE PLANT.

1949 WAS THE LAST YEAR THE RFC PAID REAL ESTATE TAXES ON THE PROPERTY. THE ARMY ORDNANCE DISTRICT, PHILADELPHIA HAS MADE PAYMENTS IN LIEU OF TAXES (P.L. 388) EACH YEAR FROM 1955 TO 1961, INCLUSIVE. THERE WERE NO TAXES OR PAYMENTS MADE DURING THE YEARS 1950 TO 1954, INCLUSIVE.

YOU ADVISE THAT:

"THE CITY OF BURLINGTON DOES NOT FURNISH THE CUSTOMARY COMMUNITY SERVICES (POLICE AND FIRE PROTECTION, POWER, WATER, SEWAGE DISPOSAL) EXCEPT A SMALL AMOUNT OF WATER FOR DRINKING PURPOSES AND THAT IS METERED AND PAID FOR BY THE ARMY. FOR INDUSTRIAL USE OF WATER THE PLANT HAS ITS OWN SYSTEM OF PUMPING WATER FROM THE DELAWARE RIVER. IT ALSO HAS ITS OWN SEWAGE DISPOSAL SYSTEM. POLICE OR GUARD PROTECTION AND FIRE PROTECTION ARE PROVIDED BY A PRIVATE CONTRACTOR UNDER CONTRACT WITH THE ARMY. THE CITY OF BURLINGTON HAS STATED, HOWEVER, THAT IT WILL HELP OUT IN CASE OF A FIRE IF THE GUARDS AT THE PLANT SPECIFICALLY REQUEST IT.'

YOU STATE THAT AFTER REVIEWING OUR DECISION OF SEPTEMBER 4, 1957, B 132847, 37 COMP. GEN. 170, IT IS BELIEVED THAT THE GOVERNMENT IS NOT REQUIRED TO MAKE PAYMENTS IN LIEU OF TAXES ON THE BURLINGTON ORDNANCE PLANT. IT IS YOUR VIEW, BASED ON PORTIONS OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 388 (AND H. R. 7184) QUOTED IN 37 COMP. GEN. 170, THAT THE CONGRESS INTENDED TO REACH ONLY THOSE PROPERTIES FORMERLY OWNED BY RFC WHICH ARE OCCUPIED AND USED BY PRIVATE ENTERPRIZES FOR PROFIT PURPOSES AND NOT THOSE PROPERTIES WHICH WERE TAKEN OVER FOR PURELY GOVERNMENTAL PURPOSES. YOU STATE, IN EFFECT, THAT BASED ON THE CONGRESSIONAL COMMENTS QUOTED IN OUR DECISION IT IS DEFINITE THAT THE CONGRESS DID NOT INTEND THE GOVERNMENT TO MAKE PAYMENTS IN LIEU OF TAXES ON A PIECE OF REAL ESTATE OUT OF INDUSTRIAL PRODUCTION AND SITTING IDLE EXCEPT FOR SOME GOVERNMENT STORAGE ACTIVITY, SUCH AS THE BURLINGTON ORDNANCE PLANT.

PUBLIC LAW 388 DIRECTS VARIOUS DEPARTMENTS AND AGENCIES OF THE FEDERAL GOVERNMENT TO MAKE PAYMENTS IN LIEU OF TAXES ON CERTAIN PROPERTIES TRANSFERRED TO THEM FROM THE RECONSTRUCTION FINANCE CORPORATION ON OR AFTER JANUARY 1, 1946, IF TITLE HAS BEEN CONTINUOUSLY IN THE UNITED STATES SINCE DATE OF TRANSFER. SECTION 704/B) OF THE PUBLIC LAW PROVIDES THAT:

"/B) NO PAYMENT SHALL BE MADE UNDER SECTION 703 WITH RESPECT TO ANY REAL PROPERTY OF ANY OF THE FOLLOWING CATEGORIES:

" "/1) REAL PROPERTY TAXABLE BY ANY STATE OR LOCAL TAXING AUTHORITY UNDER ANY PROVISION OF LAW, OR WITH RESPECT TO WHICH ANY PAYMENT IN LIEU OF TAXES IS PAYABLE UNDER ANY OTHER PROVISION OF LAW.

" "/2) REAL PROPERTY USED OR HELD PRIMARILY FOR ANY PURPOSE FOR WHICH REAL PROPERTY OWNED BY ANY PRIVATE CITIZEN WOULD BE EXEMPT FROM REAL PROPERTY TAX UNDER THE CONSTITUTION OR LAWS OF THE STATE IN WHICH THE PROPERTY IS SITUATED.

" "/3) REAL PROPERTY USED OR HELD PRIMARILY FOR RENDITION OF SERVICE TO OR ON BEHALF OF THE LOCAL PUBLIC, INCLUDING (BUT NOT LIMITED TO) THE FOLLOWING CATEGORIES OF REAL PROPERTY: COURTHOUSES; POST OFFICES AND OTHER PROPERTY USED FOR PURPOSES INCIDENTAL TO POSTAL OPERATIONS; AND FEDERALLY OWNED AIRPORTS MAINTAINED AND OPERATED BY THE CIVIL AERONAUTICS ADMINISTRATION.

" "/4) OFFICE BUILDINGS AND FACILITIES WHICH ARE AN INTEGRAL PART OF, OR ARE USED FOR PURPOSES INCIDENTAL TO THE USE MADE OF, ANY PROPERTIES DESCRIBED IN PARAGRAPH (1), (2), OR (3) OF THIS SUBSECTION.'"

IN 37 COMP. GEN. 170 WE INDICATED THAT IN ENACTING PUBLIC LAW 388 THE CONGRESS WAS CONCERNED PRIMARILY WITH THE TAX EXEMPT STATUS OF PROPERTY USED FOR INDUSTRIAL PURPOSES. HOWEVER, IN 38 COMP. GEN. 24, WE REFERRED TO 37 COMP. GEN. 170 AND STATED THAT:

"WHILE AS INDICATED IN OUR DECISION OF DECEMBER 14, 1957, B-132847, 37 COMP. GEN. 170, CONGRESS WAS CONCERNED PRIMARILY WITH THE TAX EXEMPT STATUS OF PROPERTY COMMONLY USED FOR INDUSTRIAL PURPOSES, IT PROHIBITED PAYMENTS IN LIEU OF TAXES UNDER PUBLIC LAW 388 ONLY ON PROPERTY FALLING WITHIN THE PURVIEW OF SECTION 704/B) OF THAT PUBLIC LAW. MOREOVER, OUR CONCLUSION IN THE ABOVE REFERRED-TO DECISION WAS BASED ON OUR FINDING THAT THE PROPERTY INVOLVED WAS PRIMARILY USED OR HELD FOR THE RENDITION OF SERVICE TO OR ON BEHALF OF THE LOCAL PUBLIC OR AS AN OFFICE BUILDING USED FOR PURPOSES INCIDENTAL THERETO AND THEREFORE FELL WITHIN THE SCOPE OF SECTIONS 704/B) (2) AND (3). HENCE, WE CONCLUDED THAT THERE WOULD BE NO AUTHORITY TO MAKE PAYMENTS IN LIEU OF TAXES ON SUCH PROPERTY.'

FURTHER IN 39 COMP. GEN. 229 WE STATED THAT:

"HOWEVER, UPON RECONSIDERATION OF THE FULL LEGISLATIVE HISTORY OF THE ACT, (PUBLIC LAW 388) WE ARE CONSTRAINED TO CONCLUDE THAT USE OF REAL PROPERTY FOR REGULAR GOVERNMENTAL PURPOSES IS NOT SUFFICIENT IN AND OF ITSELF TO WARRANT EXCLUSION OF SUCH PROPERTY FROM OPERATION OF THE ACT. WHILE OUR DECISION OF SEPTEMBER 4, 1957, DEALT IN CONSIDERABLE DETAIL WITH THE PROPOSITION THAT PROPERTY USED FOR GOVERNMENTAL PURPOSES WAS EXEMPT FROM THE REQUIREMENT FOR PAYMENTS IN LIEU OF TAXES, OUR CONCLUSION THEREIN WAS BASED ON OUR FINDING THAT THE PROPERTY INVOLVED WAS PRIMARILY USED OR HELD FOR THE RENDITION OF SERVICE TO OR ON BEHALF OF THE LOCAL PUBLIC OR AS AN OFFICE BUILDING USED FOR PURPOSES INCIDENTAL THERETO AND, THEREFORE, FELL WITHIN THE SCOPE OF SECTIONS 704/B) (2) AND (3), 40 U.S.C. 524/B) (2), (3). SEE OUR DECISION OF JULY 15, 1958, 38 COMP. GEN. 24, WHEREIN WE HELD THAT INDUSTRIAL PROPERTY USED BY THE DEPARTMENT OF THE ARMY FOR A RESERVE TRAINING CENTER WAS SUBJECT TO PAYMENTS IN LIEU OF TAXES. INDICATED IN THE TWO DECISIONS REFERRED TO ABOVE, WHILE CONGRESS WAS APPARENTLY CONCERNED PRIMARILY WITH THE TAX EXEMPT STATUS OF PROPERTY COMMONLY USED FOR INDUSTRIAL PURPOSES, IT PROHIBITED PAYMENTS IN LIEU OF TAXES UNDER PUBLIC LAW 388 ONLY ON PROPERTY FALLING WITHIN THE PURVIEW OF SECTION 704 (B) OF THAT PUBLIC LAW.

"ALTHOUGH THE PORTIONS OF THE LEGISLATIVE HISTORY QUOTED IN THE DECISION OF SEPTEMBER 4, 1957, ARE PERSUASIVE OF THE VIEW THAT PAYMENTS IN LIEU OF TAXES WERE CONTEMPLATED ONLY WITH RESPECT TO PROPERTY USED FOR INDUSTRIAL PURPOSES, OTHER PORTIONS THEREOF AND THE DECLARATION OF POLICY CONTAINED IN THE VERY ACT ITSELF WOULD SEEM TO REQUIRE A DIFFERENT CONCLUSION.

"WHILE MR. MEADER STATES, AT PAGE 21 OF THE HEARINGS ON H.R. 6182, THAT HE WOULDN-T WANT TO SEE PAYMENTS IN LIEU OF TAXES ON PROPERTY USED FOR GOVERNMENTAL PURPOSES, IT IS OBVIOUS THAT HIS STATEMENT WAS LARGELY PREDICATED ON HIS DOUBT THAT ANY SUCH CASES WOULD ARISE. THE FOLLOWING LATER EXCHANGE BETWEEN MR. MEADER AND MR. MOSS, ALSO RECORDED AT PAGE 21 OF THE HEARINGS, INDICATES STRONGLY THAT PROPERTY USED FOR GOVERNMENT PURPOSES WAS NOT INTENDED BY REASON THEREOF TO BE EXEMPT FROM PAYMENTS IN LIEU OF TAXES:

" "MR. MOSS.

" "I HAVE ONE IN MIND IN DENVER, COLO., WHERE THEY HAVE WHAT THEY CALL THE FEDERAL CITY. IT WAS AN ARMS PLANT DURING THE LAST WAR, HELD BY THE R.F.C. I THINK TITLE WAS FINALLY TRANSFERRED TO THE GENERAL SERVICES ADMINISTRATION. I WOULD INTERPRET THAT AS COMING UNDER THIS BILL, BUT IT IS OPERATED AS THE CENTER OF GOVERNMENTAL ACTIVITIES IN DENVER. WOULD IT BE SUBJECT TO TAXES? IT WOULD BE NO DIFFERENT THAN THE FEDERAL BUILDINGS IN THE DISTRICT OF COLUMBIA?

" "MR. MEADER.

" "IF IT CAME WITHIN THE DEFINITIONS OF THIS BILL.

" "MR. MOSS.

" "I THINK IT WOULD.

" "MR. MEADER.

" "I THINK THERE WOULD BE PAYMENTS IN LIEU OF TAXES PAID. I WAS NOT AWARE OF THAT PLANT AND PERHAPS THERE IS SOME WAY OF EXEMPTING THOSE PROPERTIES, BUT I WOULD LIKE TO SEE WHICH PROPERTIES THEY MIGHT BE.

" "MR. MOSS.

" "I THINK IT WAS OPERATED DURING THE WAR BY REMINGTON ARMS, AND IN MY INTERPRETATION OF THIS BILL IT WOULD COME UNDER THE TERMS OF THIS LEGISLATION, BUT I THINK IT WOULD COME WITHIN THE TERMS IMPROPERLY.'

"MOREOVER, SECTION 701 OF THE ACT, DECLARING THE POLICY OF CONGRESS, RECOGNIZES THAT "THE TRANSFER OF REAL PROPERTY HAVING A TAXABLE STATUS FROM THE RECONSTRUCTION FINANCE CORPORATION OR ANY OF ITS SUBSIDIARIES TO ANOTHER GOVERNMENT DEPARTMENT HAS OFTEN OPERATED TO REMOVE SUCH PROPERTY FROM THE TAX ROLLS OF STATES AND LOCAL TAXING AUTHORITIES, THEREBY CREATING AN UNDUE AND UNEXPECTED BURDEN UPON SUCH STATES AND LOCAL TAXING AUTHORITIES, AND CAUSING DISRUPTION OF THEIR OPERATIONS.' THE DECLARATION OF POLICY STATES FURTHER THAT "IT IS THE PURPOSE OF THIS TITLE (ACT) TO FURNISH TEMPORARY MEASURES OF RELIEF FOR SUCH STATES AND LOCAL TAXING AUTHORITIES BY PROVIDING THAT PAYMENTS IN LIEU OF TAXES SHALL BE MADE WITH RESPECT TO PROPERTY SO TRANSFERRED ON OR AFTER JANUARY 1, 1946.'

"NOWHERE IN THE ACT IS THERE MENTIONED THAT PROPERTY USED FOR GOVERNMENTAL PURPOSES SHALL BE EXCLUDED FROM THE PROVISIONS THEREOF. THE FACT THAT THE ACT IS SILENT IN THIS RESPECT, IN VIEW OF THE CONSIDERABLE ATTENTION DEVOTED BY MEMBERS OF CONGRESS TO DISCUSSION OF THIS ASPECT, WOULD INDICATE THAT SUCH USE WAS NOT INTENDED TO BE EXEMPT, SINCE THE ACT COULD HAVE BEEN EASILY CLARIFIED TO SHOW SUCH INTENT. NOR WOULD THE EXEMPTION FROM PAYMENTS IN LIEU OF TAXES FOR PROPERTY USED FOR GOVERNMENTAL PURPOSES ACCORD WITH THE STATED PURPOSE OF THE ACT--- TO FURNISH RELIEF FOR THOSE STATES AND LOCAL TAXING AUTHORITIES WHOSE OPERATIONS HAVE BEEN DISRUPTED BECAUSE TAX INCOME HAS BEEN LOST TO THEM BY REASON OF RFC PROPERTY TRANSFERS. THE EXEMPTIONS FROM PAYMENTS IN LIEU OF TAXES CONTAINED IN THE ACT ARE IN HARMONY WITH THE ACT'S PURPOSE. THE ADDITIONAL EXEMPTION COVERING GOVERNMENTAL USE OF PROPERTIES WOULD DO SUCH VIOLENCE TO THE PURPOSE FOR WHICH PUBLIC LAW 388 WAS ENACTED THAT WE CANNOT, IN THE ABSENCE OF A CLEAR AND UNMISTAKABLE DIRECTION, INTRODUCE IT BY WAY OF IMPLICATION.'

IN VIEW OF WHAT IS STATED IN 38 COMP. GEN. 24 AND 39 COMP. GEN. 229, THE FACT THAT THE BURLINGTON ORDNANCE PLANT IS NOT BEING USED BY PRIVATE ENTERPRISE FOR INDUSTRIAL PURPOSES BUT IS BEING USED INSTEAD CHIEFLY FOR STORAGE PURPOSES BY THE GOVERNMENT, WOULD NOT, IN AND OF ITSELF, EXEMPT THE PROPERTY FROM PAYMENTS IN LIEU OF TAXES UNDER PUBLIC LAW 388.

THERE IS ALSO FOR CONSIDERATION, HOWEVER, IN CONNECTION WITH THE MATTER THE QUESTION OF COMMUNITY SERVICES FURNISHED BY THE CITY TO THE PROPERTY INVOLVED. WHILE YOU STATE THAT THE CITY OF BURLINGTON DOES NOT FURNISH THE CUSTOMARY COMMUNITY SERVICES (POLICE AND FIRE PROTECTION, POWER, WATER AND SEWAGE DISPOSAL), IT IS NOT CLEAR FROM YOUR LETTER WHETHER YOU ARE REFERRING TO THE NORMAL LEVEL OF SERVICES GENERALLY FURNISHED BY A COMMUNITY OR SPECIAL SERVICES REQUIRED IN CONNECTION WITH THIS PROPERTY THAT ARE OVER AND ABOVE THE USUAL LEVEL OF SERVICES FURNISHED BY THE CITY. MOREOVER, THERE IS NO SHOWING IN YOUR LETTER THAT THE CITY HAS REFUSED TO FURNISH TO THE PROPERTY INVOLVED HERE THE COMMUNITY SERVICES CUSTOMARILY FURNISHED BY THE CITY TO SIMILAR PROPERTY. YOU STATE THAT POLICE AND GUARD PROTECTION SERVICES AND FIRE PROTECTION ARE FURNISHED BY A PRIVATE CONTRACTOR BUT THAT THE CITY HAS STATED THAT IT WILL HELP OUT IN CASE OF A FIRE IF CALLED BY THE GUARDS. WE ASSUME THAT THE PLANT IS WITHIN THE CITY LIMITS AND, HENCE, RECEIVES THE NORMAL POLICE PROTECTION THAT ALL TAXPAYERS OR RESIDENTS OF BURLINGTON RECEIVE. THE USE OF THE TERM ,GUARDS" INDICATES THAT THE PLANT REQUIRES A DEGREE OF PROTECTION NOT ORDINARILY FURNISHED BY A COMMUNITY. ALSO, IT MAY BE THAT THE CITY'S FIRE PROTECTION SERVICE ALONE IS NOT CONSIDERED SUFFICIENT TO PROTECT THE PROPERTY IN QUESTION AND THAT IS WHY FIRE PROTECTION SERVICES ARE OBTAINED BY CONTRACT. IN ANY EVENT, THE CITY HAS STATED IT WILL ASSIST AT FIRES IF CALLED. ALSO, THE CITY DOES FURNISH DRINKING WATER TO THE PROPERTY AND THE FACT THAT IT IS METERED AND PAID FOR BY THE ARMY IS IMMATERIAL TO THE QUESTION PRESENTED UNLESS THE CITY FURNISHED DRINKING WATER TO OTHER USERS SIMILARLY SITUATED WITHOUT A SPECIAL CHARGE BASED ON THE AMOUNT OF WATER USED. CF. 31 COMP. GEN. 405.

CONCERNING WATER FOR INDUSTRIAL USE, THERE IS NOTHING IN THE RECORD TO INDICATE THE CITY'S USUAL OR CUSTOMARY PRACTICE AS TO OTHER INDUSTRIAL PLANTS IN CONNECTION WITH THE FURNISHING OF WATER FOR SUCH PURPOSES OR TO INDICATE WHETHER THE ARMY FOR ITS OWN REASONS (COST, ETC.) DESIRES TO USE RIVER WATER FOR INDUSTRIAL USE. MOREOVER, THERE IS NOTHING IN THE RECORD TO INDICATE THE CITY'S ABILITY TO FURNISH OTHER INDUSTRIAL PLANTS WATER FOR INDUSTRIAL PURPOSES. ALSO, WHILE THE RECORD INDICATES THE PROPERTY DOES NOT OBTAIN POWER FROM THE CITY AND HAS ITS OWN SEWAGE SYSTEM THERE IS NOTHING THEREIN TO INDICATE THE CITY WOULD NOT OR COULD NOT FURNISH SUCH SERVICES IF REQUESTED OR WHETHER IT CUSTOMARILY FURNISHES SUCH SERVICES TO OTHER INDUSTRIAL PLANTS AND DISCRIMINATES AGAINST THIS GOVERNMENT PROPERTY AS TO SUCH SERVICES. FURTHER, WE ASSUME THAT THE CITY FURNISHES HIGHWAYS OR STREETS, STREET LIGHTING, SNOW REMOVAL, SCHOOLS, AND PERHAPS OTHER SERVICES FOR PERSONNEL EMPLOYED AT THE PLANT OR IN CONNECTION WITH THE USE OF THE PROPERTY. IF THIS ASSUMPTION BE CORRECT, IT MAY NOT BE SAID THAT THE CITY FURNISHES NO COMMUNITY SERVICES TO THE PROPERTY IN QUESTION. CF., IN CONNECTION WITH THE QUESTION OF COMMUNITY SERVICES, 36 COMP. GEN. 592. NOTE THAT THE FACTS SET FORTH IN THIS DECISION DISCLOSE THAT PAYMENTS IN LIEU OF TAXES WERE MADE UNDER PUBLIC LAW 388 TO A COUNTY AND SCHOOL DISTRICT, EVEN THOUGH THE COMPANY OPERATING THE PLANT SUPPLIED POLICE AND FIRE PROTECTION AND THE WATER CAME FROM WELLS ON THE PROPERTY.

IN VIEW OF THE FOREGOING, AND UNLESS IT IS SHOWN THAT THE DEPARTMENT OF THE ARMY HAS REQUESTED AND THE CITY HAS REFUSED TO FURNISH TO THE PROPERTY IN QUESTION (BURLINGTON ORDNANCE PLANT) THE COMMUNITY SERVICES IT CUSTOMARILY FURNISHES SIMILAR PROPERTY AND ON THE SAME BASIS IT IS FURNISHED TO SUCH SIMILAR PROPERTY, THE VOUCHER IN QUESTION (WHICH TOGETHER WITH ATTACHMENTS IS RETURNED HEREWITH) MAY BE CERTIFIED FOR PAYMENTS.