B-37730, OCTOBER 28, 1943, 23 COMP. GEN. 313

B-37730: Oct 28, 1943

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- WHO ARE ENTITLED UNDER SECTION 1102 (D) OF THE INTERNAL REVENUE CODE AND THE ACT OF OCTOBER 10. 1943: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16. AS FOLLOWS: I HAVE THE HONOR TO TRANSMIT HEREWITH TRAVEL VOUCHER PRESENTED BY JUDGE ERNEST H. YOU WILL NOTE THAT THE SUBSISTENCE CHARGES ARE NOT ITEMIZED. THE BOARD OF TAX APPEALS WAS CHANGED TO THE TAX COURT OF THE UNITED STATES. THE TITLES OF THE MEMBERS OF THE BOARD WERE CHANGED TO JUDGES OF THE TAX COURT. SUGGESTION IS NOW MADE THAT THE JUDGES OF THIS COURT SHOULD NOT BE REQUIRED TO ITEMIZE EXPENDITURES FOR SUBSISTENCE. AS ARE OTHER FEDERAL JUDGES. YOUR ADVICE AS TO WHETHER THIS COURSE OF PROCEDURE WILL BE SATISFACTORY TO YOUR OFFICE WILL BE APPRECIATED.

B-37730, OCTOBER 28, 1943, 23 COMP. GEN. 313

SUBSISTENCE EXPENSES - ITEMIZATION - APPLICABILITY TO JUDGES OF TAX COURT OF THE UNITED STATES THE PROVISION IN THE ACT OF APRIL 22, 1940, THAT CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES COURTS SHALL BE ALLOWED AND PAID NECESSARY EXPENSES OF TRAVEL "UPON THE WRITTEN CERTIFICATE OF THE JUSTICE OR JUDGE," APPLIES ONLY TO THE CLASS OF JUDGES, EXPRESSLY MENTIONED THEREIN AND MAY NOT BE EXTENDED TO INCLUDE JUDGES OF THE TAX COURT OF THE UNITED STATES AND THE UNITED STATES CUSTOMS COURT--- WHO ARE ENTITLED UNDER SECTION 1102 (D) OF THE INTERNAL REVENUE CODE AND THE ACT OF OCTOBER 10, 1940, TO SUBSISTENCE EXPENSES NOT TO EXCEED $10 PER DAY "ACTUALLY INCURRED"--- AND, THEREFORE, REIMBURSEMENT TO JUDGES OF THE TAX COURT OF THE UNITED STATES FOR SUBSISTENCE EXPENSES MAY NOT BE MADE IN THE ABSENCE OF AN ITEMIZATION OF SUCH EXPENSES, SUPPORTED BY RECEIPTS IF PRACTICABLE.

COMPTROLLER GENERAL WARREN TO ROBERT C. TRACY, THE TAX COURT OF THE UNITED STATES, OCTOBER 28, 1943:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1943, AS FOLLOWS:

I HAVE THE HONOR TO TRANSMIT HEREWITH TRAVEL VOUCHER PRESENTED BY JUDGE ERNEST H. VAN FOSSAN OF THIS COURT, COVERING EXPENSES INCURRED ON HIS RECENT TRIP TO CINCINNATI, OHIO AND LOUISVILLE, KENTUCKY ON OFFICIAL BUSINESS. YOU WILL NOTE THAT THE SUBSISTENCE CHARGES ARE NOT ITEMIZED.

THE BOARD OF TAX APPEALS WAS CHANGED TO THE TAX COURT OF THE UNITED STATES, AND THE TITLES OF THE MEMBERS OF THE BOARD WERE CHANGED TO JUDGES OF THE TAX COURT, BY SECTION 504 (A) OF THE REVENUE ACT OF 1942. SUGGESTION IS NOW MADE THAT THE JUDGES OF THIS COURT SHOULD NOT BE REQUIRED TO ITEMIZE EXPENDITURES FOR SUBSISTENCE, BUT SHOULD BE PAID ON CERTIFICATE, AS ARE OTHER FEDERAL JUDGES.

YOUR ADVICE AS TO WHETHER THIS COURSE OF PROCEDURE WILL BE SATISFACTORY TO YOUR OFFICE WILL BE APPRECIATED.

THE SUBMITTED VOUCHER IS IN THE AMOUNT OF $59.06, OF WHICH AMOUNT $53.91 IS CLAIMED IN A LUMP SUM AS REIMBURSEMENT FOR " SUBSISTENCE FROM 6:30 P.M. OCTOBER 7, 1943, TO 7:40 A.M., OCTOBER 14, 1943"--- THE BALANCE ($5.15) CLAIMED ON THE VOUCHER REPRESENTING TAXI FARE, AND STATION AND PULLMAN PORTER FEES.

THE TRAVEL WAS PERFORMED PURSUANT TO TRAVEL ORDER DATED SEPTEMBER 27, 1943, ISSUED BY THE PRESIDING JUDGE OF THE TAX COURT OF THE UNITED STATES, AS FOLLOWS:

IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1104 OF THE INTERNAL REVENUE CODE OF 1939 YOU ARE AUTHORIZED TO PROCEED FROM WASHINGTON, D.C., TO CINCINNATI, OHIO, AND LOUISVILLE, KENTUCKY, FOR THE PURPOSE OF CONDUCTING HEARINGS WHICH ARE SCHEDULED FOR CALL BEGINNING OCTOBER 8, AND OCTOBER 11, 1943, RESPECTIVELY. UPON COMPLETION OF THESE HEARINGS YOU ARE AUTHORIZED TO RETURN TO YOUR OFFICIAL HEADQUARTERS, WASHINGTON, D.C.

WHILE ABSENT ON THIS OFFICIAL BUSINESS YOU WILL BE ALLOWED NECESSARY TRAVELING EXPENSES AND EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE IN AN AMOUNT NOT TO EXCEED $10.00 (TEN DOLLARS) PER DAY AS PROVIDED BY SECTION 1102 (D) OF THE CODE ABOVE MENTIONED AND THE ACT OF OCTOBER 10, 1940 (54 STAT. 1101.)

SECTION 504 (B) OF THE REVENUE ACT OF 1942, APPROVED OCTOBER 21, 1942, 56 STAT. 957, EXPRESSLY PROVIDES THAT THE "IMMUNITIES, TENURE OF OFFICE, POWERS, DUTIES, RIGHTS, AND PRIVILEGES OF THE PRESIDING JUDGE AND JUDGES OF THE TAX COURT OF THE UNITED STATES SHALL BE THE SAME AS BY EXISTING LAW PROVIDED IN THE CASE OF THE BOARD OF TAX APPEALS.' IN THE CASE OF THE BOARD OF TAX APPEALS IT IS PROVIDED UNDER SECTION 1102 (D) OF THE INTERNAL REVENUE CODE, (53 STAT. 159, PART 1), AS OLLOWS:

(D) EXPENSES FOR TRAVEL AND SUBSISTENCE.--- THE MEMBERS OF THE BOARD SHALL RECEIVE NECESSARY TRAVELING EXPENSES, AND EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AND AWAY FROM THEIR DESIGNATED STATIONS, SUBJECT TO THE SAME LIMITATIONS IN AMOUNT AS ARE NOW OR MAY HEREAFTER BE APPLICABLE TO THE UNITED STATES CUSTOMS COURT.

WITH RESPECT TO TRAVEL, ETC., EXPENSES OF JUDGES OF THE UNITED STATES CUSTOMS COURT, SECTION 187 (A) OF THE JUDICIAL CODE, ADDED BY THE ACT OF OCTOBER 10, 1940, 54 STAT. 1101, PROVIDES THAT:

* * * JUDGES OF THE COURT SHALL EACH BE ALLOWED AND PAID HIS NECESSARY EXPENSES OF TRAVEL AND HIS REASONABLE EXPENSES, NOT TO EXCEED $10 PER DAY ACTUALLY INCURRED FOR MAINTENANCE WHILE ABSENT FROM NEW YORK ON OFFICIAL BUSINESS * * *.

THE PRIVILEGES ACCORDED CERTAIN FEDERAL JUDGES, OF CLAIMING REIMBURSEMENT FOR REASONABLE EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WITHOUT ITEMIZING SUCH EXPENDITURES, IS BASED UPON THE PROVISIONS OF SECTION 259 OF THE JUDICIAL CODE AS AMENDED BY THE ACT OF APRIL 22, 1940, 54 STAT. 149 (28 U.S.C. 374), READING AS FOLLOWS:

THE CIRCUIT JUSTICES, THE CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES, AND THE JUDGES OF THE DISTRICT COURTS OF THE UNITED STATES IN ALASKA, HAWAII, AND PUERTO RICO, SHALL EACH BE ALLOWED AND PAID HIS NECESSARY EXPENSES OF TRAVEL, AND HIS REASONABLE EXPENSES (NOT TO EXCEED $10 PER DAY) ACTUALLY INCURRED FOR MAINTENANCE, CONSEQUENT UPON HIS ATTENDING COURT OR TRANSACTING OTHER OFFICIAL BUSINESS IN PURSUANCE OF LAW AT ANY PLACE OTHER THAN HIS OFFICIAL PLACE OF RESIDENCE, SAID EXPENSES TO BE PAID BY THE MARSHAL OF THE DISTRICT IN WHICH SUCH COURT IS HELD OR OFFICIAL BUSINESS TRANSACTED, UPON THE WRITTEN CERTIFICATE OF THE JUSTICE OR JUDGE. THE OFFICIAL PLACE OF RESIDENCE OF EACH CIRCUIT AND DISTRICT JUDGE, AND OF EACH JUDGE OF THE DISTRICT COURTS OF THE UNITED STATES IN ALASKA, HAWAII, AND PUERTO RICO, SHALL BE AT THAT PLACE NEAREST HIS ACTUAL RESIDENCE AT WHICH EITHER A CIRCUIT COURT OF APPEALS OR A DISTRICT COURT IS REGULARLY HELD. EVERY SUCH JUDGE SHALL, UPON HIS APPOINTMENT, AND FROM TIME TO TIME THEREAFTER WHENEVER HE MAY CHANGE HIS OFFICIAL RESIDENCE, IN WRITING NOTIFY THE DEPARTMENT OF JUSTICE OF HIS OFFICIAL PLACE OF RESIDENCE. ( ITALICS SUPPLIED.) BUT SEE DECISION OF OCTOBER 20, 1943, B- 37385, 23 COMP. GEN. 290, REGARDING THE EFFECT OF A "WRITTEN CERTIFICATE OF THE JUSTICE OR JUDGE" IN RESPECT OF THE APPLICATION OF THE PROVISIONS OF SECTION 73B, OF TITLE 5, U.S. CODE, 47 STAT. 1516.

WHILE THE ACT OF APRIL 22, 1940, SUPRA, AUTHORIZES REIMBURSEMENT OF NECESSARY EXPENSES OF TRAVEL, ETC., TO JUDGES "UPON THE WRITTEN CERTIFICATE OF THE JUSTICE OR JUDGE" IT IS FOR NOTING THAT SAID AUTHORITY EXTENDS EXPRESSLY TO "CIRCUIT JUSTICES, THE CIRCUIT AND DISTRICT JUDGES OF THE UNITED STATES, AND THE JUDGES OF THE DISTRICT COURTS OF THE UNITED STATES IN ALASKA, HAWAII, AND PUERTO RICO.' THE CLASSES OF JUDGES THEREIN NAMED CANNOT BE ENLARGED BY CONSTRUCTION TO INCLUDE JUDGES OF UNITED STATES CUSTOMS COURT OR OF THE TAX COURT OF THE UNITED STATES--- IT BEING A FAMILIAR RULE OF STATUTORY CONSTRUCTION THAT THE EXPRESS MENTION OF ONE PERSON, THING, OR CONSEQUENCE IS TANTAMOUNT TO AN EXPRESS EXCLUSION OF ALL OTHERS, EXPRESSED BY THE LEGAL MAXIM EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.

NEITHER SECTION 1102 (D) OF THE INTERNAL REVENUE CODE NOR THE ACT OF OCTOBER 10, 1940, BOTH ABOVE-QUOTED--- ON THE BASIS OF WHICH JUDGES OF THE TAX COURT OF THE UNITED STATES MAY CLAIM REIMBURSEMENT "ON THE WRITTEN CERTIFICATE OF THE JUDGE" SUCH AS IS AUTHORIZED IN THE CASE OF JUDGES COMING WITHIN THE PROVISIONS OF SECTION 259 OF THE JUDICIAL CODE, SUPRA. IT FOLLOWS THAT THE PRIVILEGE SO ACCORDED THE CLASSES OF JUDGES SPECIFIED IN SAID SECTION 259 OF THE JUDICIAL CODE TO HAVE THEIR ACCOUNTS PAID ON THE WRITTEN CERTIFICATE OF THE JUDGE MAY NOT BE EXTENDED TO THE JUDGES OF THE TAX COURT OF THE UNITED STATES.

WITH RESPECT TO THE MATTER OF ITEMIZATION OF SUBSISTENCE ACCOUNTS SUBMITTED BY MEMBERS OF THE BOARD OF TAX APPEALS, IT WAS STATED IN DECISION B-13064, DATED NOVEMBER 7, 1940, AS FOLLOWS:

* * * THE SUBSISTENCE ALLOWANCE IS EXPRESSLY FIXED AT NOT TO EXCEED $10 PER DAY "ACTUALLY INCURRED FOR MAINTENANCE.' HENCE, REIMBURSEMENT FOR SUCH EXPENSES MAY BE MADE ONLY IN AN AMOUNT ACTUALLY EXPENDED NOT TO EXCEED $10 PER DAY, AND SUCH ALLOWABLE AMOUNTS ARE, UNDER SOUND ACCOUNTING PRINCIPLES, REQUIRED TO BE ITEMIZED AND, WHENEVER PRACTICABLE, SUPPORTED BY RECEIPTS EVIDENCING THE EXPENDITURES CLAIMED TO HAVE BEEN MADE. I FIND NOTHING IN THE LEGISLATIVE HISTORY EVIDENCING ANY INTENTION TO DISPENSE WITH ITEMIZATION OF ACCOUNTS SUBMITTED UPON AN ACTUAL EXPENSE BASIS. COMPARE 20 COMP. GEN. 361.

THE VOUCHER ENCLOSED WITH YOUR SUBMISSION IS RETURNED HEREWITH, AND IN THE LIGHT OF THE FOREGOING YOU ARE ADVISED THAT CERTIFICATION OF THE VOUCHER IS NOT AUTHORIZED IN THE ABSENCE OF AN ITEMIZATION OF THE SUBSISTENCE EXPENSES, THE ITEMIZATION TO BE SUPPORTED BY RECEIPTS IF PRACTICABLE.