B-152481, OCT. 29, 1963

B-152481: Oct 29, 1963

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RETIRED: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JUNE 13. FOR THE REASON THAT SINCE THE RECORD FAILED TO SHOW THAT THE CHILDREN WERE MINOR DEPENDENTS OF YOUR WIFE (IT BEING INDICATED THAT YOUR INCOME FOR THE PERIOD CONCERNED WAS GREATER THAN YOUR WIFE'S INCOME). THE CHILDREN WERE NOT IN THE CATEGORY OF STUDENTS. THE CIRCUMSTANCES FORMING THE BASIS OF YOUR CLAIM HAVE BEEN REPORTED TO US. YOUR CHILDREN WERE ENROLLED IN A USAF- OPERATED DEPENDENT SCHOOL WHICH WAS OPERATED PRIMARILY FOR THE BENEFIT OF DEPARTMENT OF DEFENSE PERSONNEL ATTACHED TO TORREJON AIR BASE. YOU ARE A RETIRED CAPTAIN. WERE NOT EMPLOYED BY THE DEPARTMENT OF DEFENSE AT THE AIR BASE.

B-152481, OCT. 29, 1963

TO CAPTAIN JOHN M. GASKINS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1963, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR $300.96 EXPENDED FOR YOUR CHILDREN'S TUITION AT A SERVICE--- OPERATED SCHOOL DURING THE PERIOD AUGUST 27 THROUGH DECEMBER 14, 1962. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED JUNE 13, 1963, FOR THE REASON THAT SINCE THE RECORD FAILED TO SHOW THAT THE CHILDREN WERE MINOR DEPENDENTS OF YOUR WIFE (IT BEING INDICATED THAT YOUR INCOME FOR THE PERIOD CONCERNED WAS GREATER THAN YOUR WIFE'S INCOME), THE CHILDREN WERE NOT IN THE CATEGORY OF STUDENTS, AUTHORIZED BY APPLICABLE AIR FORCE REGULATIONS, TO RECEIVE SCHOOLING WITHOUT PAYMENT OF TUITION.

THE CIRCUMSTANCES FORMING THE BASIS OF YOUR CLAIM HAVE BEEN REPORTED TO US, BRIEFLY, AS OLLOWS:

YOU AND YOUR FAMILY (WIFE AND TWO MINOR CHILDREN) RESIDED IN THE VICINITY OF THE TORREJON AIR BASE, SPAIN. YOUR CHILDREN WERE ENROLLED IN A USAF- OPERATED DEPENDENT SCHOOL WHICH WAS OPERATED PRIMARILY FOR THE BENEFIT OF DEPARTMENT OF DEFENSE PERSONNEL ATTACHED TO TORREJON AIR BASE. YOU ARE A RETIRED CAPTAIN, UNITED STATES AIR FORCE, AND WERE NOT EMPLOYED BY THE DEPARTMENT OF DEFENSE AT THE AIR BASE. YOUR WIFE, HOWEVER, WAS AN EMPLOYEE OF THE AIR FORCE AT THE BASE, IN GRADE GS-3, AT $3,925 PER YEAR. YOUR CHILDREN ATTENDED THE AIR FORCE OPERATED SCHOOL AND YOU WERE REQUIRED TO PAY THEIR TUITION IN THE AMOUNT OF $300.96, COVERING THE PERIOD AUGUST 27 THROUGH DECEMBER 14, 1962, SINCE IT DID NOT APPEAR THAT THE MINOR CHILDREN WERE DEPENDENT MINOR CHILDREN OF A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE WITHIN THE MEANING OF AFR 34-50.

IN YOUR LETTER YOU URGE THAT THE ADMINISTRATIVE REPORTS IN THIS MATTER ARE IN ERROR, SINCE YOUR WIFE'S EARNINGS WERE MORE THAN 50 PERCENT OF THE TOTAL COMBINED INCOME OF YOU AND YOUR WIFE, AND THAT YOUR CHILDREN WERE IN FACT DEPENDENT UPON YOUR WIFE RATHER THAN UPON YOU DURING THE PERIOD FOR WHICH REFUND IS CLAIMED.

IN THIS CONNECTION YOU STATE THAT YOUR TOTAL INCOME FOR THE PERIOD FROM AUGUST 1, 1962, TO AUGUST 1, 1963, WAS $3,755, WHICH INCLUDED $224 RECEIVED FROM THE VETERANS ADMINISTRATION FOR ATTENDANCE AT UNIVERSITY OF MARYLAND, EUROPEAN DIVISION, AND RETIRED PAY AT $294.25 A MONTH. YOUR WIFE'S INCOME AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT IS STATED AS $3,925 PER ANNUM (GS-3) FOR THE PERIOD JULY 2, 1962, THROUGH MARCH 30, 1963, AND AS $4,250 PER ANNUM (GS-4) FROM MARCH 31, 1963, TO THE PRESENT TIME. ADDITION SHE EARNED $192.89 FOR THE PERIOD OCTOBER 1, 1962, TO MAY 31, 1963, AS A PART-TIME RADIO ANNOUNCER. YOU CONTEND THAT, SINCE HER INCOME EXCEEDED YOURS, SHE IS THE HEAD OF THE FAMILY, AND THAT THE CHILDREN ARE IN FACT HER DEPENDENTS AND THUS WERE QUALIFIED FOR FREE EDUCATION AS DEPENDENTS OF A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF DEFENSE.

IT IS REPORTED THAT OF YOUR $294.25 MONTHLY RETIRED PAY THE SUM OF $12.60 IS WITHHELD FOR FEDERAL INCOME TAXES, AND THAT OF $192.89 PAID TO MRS. GASKINS BY THE CENTRAL BASE FUND DURING THE PERIOD OCTOBER 1, 1962, THROUGH MAY 31, 1963 (EARNINGS IN ADDITION TO SALARY AS A GS-3 CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE), THE AMOUNT OF $34.68 WAS WITHHELD FOR FEDERAL INCOME TAXES.

AIR FORCE REGULATION 34-50 PROVIDES IN PERTINENT PART AS FOLLOWS:

"6. WHO MAY ENROLL IN SERVICE-OPERATED SCHOOLS:

"A. TYPES OF DEPENDENTS. SCHOOL-AGE DEPENDENTS ARE ELIGIBLE FOR ADMISSION TO AIR FORCE SERVICE-OPERATED SCHOOLS WHEN SPACE IS AVAILABLE. THEY WILL BE ADMITTED IN THE FOLLOWING ORDER OF PRIORITY:

(1) DEPENDENTS OF MILITARY PERSONNEL AND U.S. CITIZEN CIVILIAN EMPLOYEES OF THE AIR FORCE.

(2) DEPENDENTS OF MILITARY PERSONNEL AND U.S. CITIZEN CIVILIAN EMPLOYEES OF THE ARMY, NAVY, AND MARINE CORPS.

(3) DEPENDENTS OF U.S. CITIZEN EMPLOYEES OF OTHER U.S. GOVERNMENT AGENCIES.

(4) DEPENDENTS OF OTHER U.S. CITIZENS LIVING IN THE VICINITY.

"10. BUDGETING AND FUNDING:

"B. APPROPRIATED FUNDS:

(3) APPROPRIATED FUNDS WILL BE USED TO PAY THE COST OF EDUCATION OF DEPENDENTS OF AIR FORCE CIVILIAN PERSONNEL WHO ARE U.S. CITIZENS AND WHOSE SALARIES ARE PAID FROM APPROPRIATED FUNDS. IF BOTH PARENTS OF THE DEPENDENT ARE EMPLOYED, DEPENDENCY WILL DERIVE FROM THE HEAD OF THE FAMILY.

"C. TUITION. A TUITION FEE WILL BE CHARGED ALL DEPENDENTS, OTHER THAN THOSE DESCRIBED IN PARAGRAPHS 6A (1) AND (2), WHO ARE PERMITTED TO ATTEND AIR FORCE SERVICE-OPERATED SCHOOLS. * * "

THE ENTITLEMENT TO FREE TUITION FOR THE CHILDREN IN THE PRESENT MATTER REQUIRES A DETERMINATION THAT MRS. GASKINS AS A CIVILIAN EMPLOYEE OF THE AIR FORCE IS THE HEAD OF YOUR FAMILY AND THAT, IN ADDITION TO MATTERS OF SUPPORT, YOU AND YOUR CHILDREN TOO, TO HER FOR DIRECTION AND MANAGEMENT OF FAMILY AFFAIRS.

GENERALLY, WHERE A HUSBAND, WIFE AND THEIR CHILDREN RESIDE IN THE SAME HOUSEHOLD, IT IS THE HUSBAND WHO IS CONSIDERED THE "HEAD OF THE FAMILY.' IT IS THE EXCEPTIONAL CASE WHERE THE WIFE IS CONSIDERED THE HEAD OF THE FAMILY. WHERE THE HUSBAND IS PHYSICALLY OR MENTALLY INCAPABLE OF PRODUCING THE INCOME TO SUPPORT THE FAMILY, OR HAS ABANDONED THE FAMILY, THE STATUS AS HEAD OF THE FAMILY DEVOLVES UPON THE MOTHER OR ANOTHER FAMILY MEMBER WHO PRODUCES THE INCOME FOR SUPPORT AND ASSUMES THE MANAGEMENT OF FAMILY MATTERS. WE HAVE FOUND NO INSTANCE WHERE THE DETERMINATION HAS BEEN MADE THAT A PERSON IS THE HEAD OF A FAMILY SOLELY BECAUSE THAT PERSON'S INCOME WAS MORE THAN THAT OF ANOTHER MEMBER OF THE FAMILY. WHILE IT IS SUGGESTED IN ONE OF THE PAPERS SUBMITTED WITH YOUR LETTER OF AUGUST 30, 1963, THAT THIS MATTER SHOULD BE DECIDED ON A SIMPLE INCOME TEST, THE REGULATIONS INDICATE THAT WHERE BOTH PARENTS HAVE AN INCOME WHICH IS USED FOR THE SUPPORT OF THE FAMILY THEIR CHILDREN ARE THE DEPENDENTS OF THE PARENT WHO ACTUALLY IS THE HEAD OF THE FAMILY. THIS IS A MATTER WHICH CANNOT BE DECIDED SOLELY ON THE BASIS OF INFORMATION SHOWING THAT THE WIFE'S INCOME IS GREATER THAN HER HUSBAND-S.

WE NOTE THAT THERE WAS WITHHELD FROM YOUR MONTHLY RETIRED PAY THE SUM OF $12.60, AND, BY REFERENCE TO APPROPRIATE INCOME TAX WITHHOLDING TABLES, THAT AMOUNT IS SET OUT AS THE WITHHOLDING ON YOUR GROSS RETIRED PAY FOR FOUR EXEMPTIONS, WHICH WOULD BE FOR YOURSELF, WIFE, AND TWO DEPENDENTS. SIMILARLY, WITH RESPECT TO THE AMOUNT EARNED BY YOUR WIFE FROM THE CENTRAL BASE FUND, THE WITHHOLDING WAS ON THE BASIS OF NO EXEMPTIONS CLAIMED. WHILE THIS LATTER FACT IS NOT CONCLUSIVE, IT IS INDICATIVE OF THE FACT THAT THE CHILDREN WERE CONSIDERED YOUR DEPENDENTS, AND THAT YOU ARE THE HEAD OF THE FAMILY. A FURTHER INDICATION IS SEEN IN THE $120 MONTHLY ALLOWANCE MADE TO YOU BY THE VETERANS ADMINISTRATION FOR THE PERIOD OF YOUR ATTENDANCE AT THE UNIVERSITY OF MARYLAND, EUROPEAN DIVISION, MADRID- TORREJON EDUCATION CENTER. THE AMOUNT OF $120 PER MONTH IS THE AMOUNT ALLOWED TO ELIGIBLE VETERANS WITH MORE THAN ONE DEPENDENT.

WE CANNOT AGREE WITH A CONCLUSION THAT WOULD PERMIT YOU TO VIEW YOUR CHILDREN AS YOUR DEPENDENTS FOR TAX AND VETERANS ADMINISTRATION ALLOWANCE PURPOSES AND AT THE SAME TIME MRS. GASKINS' DEPENDENTS FOR PURPOSES OF OBTAINING FREE TUITION AT A SERVICE-OPERATED SCHOOL, PREDICATED SOLELY ON THE FACT THAT HER INCOME EXCEEDED YOURS.

ACCORDINGLY, AND IN THE ABSENCE OF AN AUTHORITATIVE COURT DECISION TAKING A DIFFERENT VIEW, THE DENIAL OF YOUR CLAIM FOR REFUND IS CONSIDERED PROPER AND, UPON REVIEW, IS SUSTAINED.