B-174213, AUG 14, 1972, 52 COMP GEN 83

B-174213, AUG 14, 1972, 52 COMP GEN 83

GENERAL ACCOUNTING OFFICE - DECISIONS - ADVANCE - VOUCHER ACCOMPANIMENT ALTHOUGH, NORMALLY, THE COMPTROLLER GENERAL OF THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) WOULD NOT RENDER A DECISION TO A QUESTION OF LAW SUBMITTED BY A CERTIFYING OFFICER UNACCOMPANIED BY A VOUCHER AS REQUIRED BY 31 U.S.C. 82D, THE STATUTORY AUTHORITY UNDER WHICH THE GAO RENDERS DECISIONS TO CERTIFYING OFFICERS, SINCE THE QUESTION SUBMITTED IS GENERAL IN NATURE AND WILL BE A RECURRING ONE, THE REPLY TO THE QUESTION RAISED IS ADDRESSED TO THE HEAD OF THE AGENCY UNDER THE BROAD AUTHORITY CONTAINED IN 31 U.S.C. 74, PURSUANT TO WHICH THE GAO MAY PROVIDE DECISIONS TO THE HEADS OF DEPARTMENTS ON ANY QUESTION INVOLVED IN PAYMENTS WHICH MAY BE MADE BY THAT DEPARTMENT. FEES - PARKING - OCCUPANCY TAX - LEGAL INCIDENCE OF TAX ON VENDEE IN VIEW OF THE ADMINISTRATIVE BURDENS TO IMPLEMENT THE UNITED STATES GENERAL ACCOUNTING OFFICE (GAO) DECISION OF DECEMBER 10, 1971, 51 COMP. GEN. 367, HOLDING THAT THE SAN FRANCISCO CITY AND COUNTY TAX ON THE OCCUPANCY OF PARKING SPACES IS NOT CHARGEABLE TO THE FEDERAL GOVERNMENT WHEN A GOVERNMENT-OWNED VEHICLE IS INVOLVED, AND THAT A VOUCHER FOR THE TAX IN FAVOR OF A GOVERNMENT EMPLOYEE MAY NOT BE CERTIFIED FOR PAYMENT, THE DECISION IS MODIFIED TO PERMIT CERTIFYING OFFICERS TO CERTIFY VOUCHERS FOR PAYMENT OF THE PARKING TAX IN THE AMOUNT OF 1 DOLLAR OR LESS IN SPITE OF THE GOVERNMENT'S IMMUNITY TO THE TAX, SINCE THE CORRECT PROCEDURE PRESCRIBED IN 7 GAO 26.2 FOR THE USE OF A TAX EXEMPTION CERTIFICATE WHEN THE LEGAL INCIDENCE OF THE TAX IS ON THE VENDEE IS NOT AVAILABLE AS ITS USE IS RESTRICTED TO PURCHASES ON WHICH THE TAXES EXCEED 1 DOLLAR. COMP. GEN. 367, MODIFIED.

TO THE ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AUGUST 14, 1972:

WE HAVE RECEIVED A LETTER DATED APRIL 6, 1972, FROM MR. CHARLES A. LEWIS, AUTHORIZED CERTIFYING OFFICER, CHIEF, ACCOUNTS PAYABLE BRANCH, FINANCE DIVISION, REGION 9, GENERAL SERVICES ADMINISTRATION, CONCERNING THE TAX ON RENTS CHARGED FOR OCCUPANCY OF PARKING SPACE IN PARKING STATIONS IN THE CITY AND COUNTY OF SAN FRANCISCO INSOFAR AS CONCERNS GOVERNMENT-OWNED VEHICLES.

AT THE OUTSET WE WISH TO REFER YOU TO 31 U.S.C. 82D, THE STATUTORY AUTHORITY UNDER WHICH THIS OFFICE RENDERS DECISIONS TO CERTIFYING OFFICERS, WHICH PROVIDES AS FOLLOWS:

THE LIABILITY OF CERTIFYING OFFICERS OR EMPLOYEES SHALL BE ENFORCED IN THE SAME MANNER AND TO THE SAME EXTENT AS NOW PROVIDED BY LAW WITH RESPECT TO ENFORCEMENT OF THE LIABILITY OF DISBURSING AND OTHER ACCOUNTABLE OFFICERS; AND THEY SHALL HAVE THE RIGHT TO APPLY FOR AND OBTAIN A DECISION BY THE COMPTROLLER GENERAL ON ANY QUESTION OF LAW INVOLVED IN A PAYMENT ON ANY VOUCHERS PRESENTED TO THEM FOR CERTIFICATION.

UNDER THE ABOVE-QUOTED AUTHORITY, A CERTIFYING OFFICER IS ENTITLED TO A DECISION BY THE COMPTROLLER GENERAL ON A QUESTION OF LAW INVOLVED IN PAYMENT ON A SPECIFIC VOUCHER WHICH HAS BEEN PRESENTED TO HIM FOR CERTIFICATION PRIOR TO PAYMENT OF THE VOUCHER, WHICH SHOULD ACCOMPANY THE SUBMISSION TO THIS OFFICE. 21 COMP. GEN. 1128(1942).

IN THE INSTANT CASE, NO VOUCHER ACCOMPANIED THE REQUEST FOR DECISION AND THE QUESTION PRESENTED IS GENERAL IN NATURE. NORMALLY, WE WOULD NOT RENDER A DECISION UNDER SUCH CIRCUMSTANCES. HOWEVER, IN VIEW OF THE FACT THAT THE PROBLEM INVOLVED IN THE INSTANT SITUATION WILL BE OF A RECURRING NATURE, WE ARE RENDERING OUR DECISION TO YOU UNDER THE BROAD AUTHORITY CONTAINED IN 31 U.S.C. 74, PURSUANT TO WHICH WE MAY PROVIDE DECISIONS TO THE HEADS OF DEPARTMENTS ON ANY QUESTION INVOLVED IN PAYMENTS WHICH MAY BE MADE BY THAT DEPARTMENT.

IN OUR DECISION OF DECEMBER 10, 1971, 51 COMP. GEN. 367, WE HELD THAT THE SAN FRANCISCO CITY AND COUNTY TAX OF 25 PERCENT ON OCCUPANCY OF PARKING SPACES IS NOT CHARGEABLE TO THE FEDERAL GOVERNMENT WHEN A GOVERNMENT-OWNED VEHICLE IS INVOLVED, AND THAT A VOUCHER FOR SAME IN FAVOR OF A GOVERNMENT EMPLOYEE MAY NOT BE CERTIFIED FOR PAYMENT.

MR. LEWIS STATES THAT CONSIDERATION HAS BEEN GIVEN TO THE ALTERNATIVES OF EITHER REQUIRING GOVERNMENT EMPLOYEES TO BEAR THE BURDEN OF THE TAX OR OF SETTING UP AN ADMINISTRATIVE PROCEDURE WHEREBY THE TAX WOULD NOT BE CHARGED OR THAT REIMBURSEMENT WOULD BE SOUGHT FROM THE CITY TAXING AUTHORITIES AFTER PAYMENT OF THE TAX.

AS TO THE LATTER, MR. LEWIS STATES THAT REIMBURSEMENT AFTER PAYMENT WOULD CREATE AN UNREASONABLE BURDEN ON THE CITY, AND THE ADMINISTRATIVE COSTS TO THE FEDERAL GOVERNMENT WOULD EXCEED THE AMOUNT OF THE TAXES INVOLVED. NOTE THAT THIS DISPARITY WAS FURTHER INCREASED AS OF JULY 1, 1972, WHEN THE TAX WAS REDUCED TO 10 PERCENT.

MR. LEWIS FURTHER STATES THAT CONSIDERATION HAS BEEN GIVEN TO THE USE OF THE STANDARD FORM 1094 U.S. TAX EXEMPTION CERTIFICATE, BUT THAT THIS PROCEDURE WOULD LIKEWISE ENTAIL A SUBSTANTIAL ADMINISTRATIVE BURDEN AND IS ALSO LIMITED BY CERTAIN RESTRICTIONS ON THE USE OF SUCH CERTIFICATES.

IN VIEW OF THE ADMINISTRATIVE BURDENS OF IMPLEMENTING OUR DECISION OF DECEMBER 10, 1971, 51 COMP. GEN. 367, MR. LEWIS REQUESTS THAT CERTIFYING OFFICERS BE ALLOWED TO CERTIFY TRAVEL VOUCHERS (IN FAVOR OF GOVERNMENT EMPLOYEES) WHERE THE AMOUNT OF THE PARKING TAX IN QUESTION IS ONE DOLLAR OR LESS.

BECAUSE OF THE NATURE OF THE TAX INVOLVED, THE PROPER PROCEDURE WOULD BE THE USE OF THE TAX EXEMPTION CERTIFICATE. THE GAO MANUAL, TITLE 7, SECTION 26.1, READS IN PERTINENT PART AS FOLLOWS:

AGENCIES, AS WELL AS GOVERNMENT CORPORATIONS, GENERALLY ARE NOT AUTHORIZED TO PAY STATE OR LOCAL TAXES, BECAUSE THE UNITED STATES IS NOT LIABLE FOR THE PAYMENT OF SUCH TAXES WHEN THE LEGAL INCIDENCE OF THE TAX IS ON THE VENDEE. IT A VENDOR REQUIRES EVIDENCE THAT A SALE OR TRANSACTION IS TAX EXEMPT, HE SHOULD BE PROVIDED WITH A TAX EXEMPTION CERTIFICATE.

SINCE THE TAX IS USUALLY COMPUTED ON THE GROSS INCOME OF EACH PARKING LOT, SUCH A CERTIFICATE WOULD BE NECESSARY AS EVIDENCE THAT THE TRANSACTION WAS TAX EXEMPT.

SEVERAL RESTRICTIONS ON THE USE OF THE TAX EXEMPTION CERTIFICATES ARE FOUND IN 7 GAO 26.2, ONE OF WHICH IS THAT THEY MAY NOT BE USED FOR PURCHASES ON WHICH THE TAXES ARE ONE DOLLAR OR LESS. THIS PROVISION IS A RECOGNITION THAT THE ADMINISTRATION COSTS OF THE USE OF THE CERTIFICATE ARE PROHIBITIVE WHEN DEALING WITH SUCH SMALL AMOUNTS AND, THEREFORE, STATE AND LOCAL TAXES OF ONE DOLLAR OR LESS MAY BE PAID IN SPITE OF THE GOVERNMENT'S IMMUNITY TO SUCH TAXATION.

ON THIS BASIS, WE WILL APPROVE THE REQUEST THAT CERTIFYING OFFICERS BE PERMITTED TO CERTIFY VOUCHERS FOR PAYMENT OF THE SAN FRANCISCO PARKING TAX IN THE AMOUNT OF ONE DOLLAR OR LESS. OUR DECISION 51 COMP. GEN. 367, IS MODIFIED ACCORDINGLY.