B-41686, MAY 27, 1944, 23 COMP. GEN. 898

B-41686: May 27, 1944

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TRAVELING EXPENSES - FARES - LOWEST FIRST-CLASS LIMITATION - LIABILITY FOR TRANSPORTATION TAX ON EXCESS FARE FOR SUPERIOR ACCOMMODATIONS WHILE A GOVERNMENT TRAVELER WHO OBTAINS SUPERIOR TRAVEL ACCOMMODATIONS BY THE USE OF(1GOVERNMENT TRANSPORTATION REQUEST IS REQUIRED. THE FEDERAL TRANSPORTATION TAX ON SUCH DIFFERENCE NEED NOT BE COLLECTED WHERE THE SUPERIOR ACCOMMODATIONS ARE OBTAINED IN ORDER THE BETTER TO SERVE THE GOVERNMENT'S INTEREST OR TO EFFECT AN ECONOMY IN THE GOVERNMENT'S BEHALF. THE SEVERAL ACCOUNTING OFFICERS OF THE UNITED STATES HAVE CONSISTENTLY HELD THAT THIS ACT PROHIBITS THE USE OF SUPERIOR ACCOMMODATIONS AT GOVERNMENT EXPENSES EXCEPT ON EXTRA FARE TRAINS OR OTHER TRAINS WHICH DO NOT CARRY UPPER OR LOWER BERTH ACCOMMODATIONS. 22 C.G. 1122.

B-41686, MAY 27, 1944, 23 COMP. GEN. 898

TRAVELING EXPENSES - FARES - LOWEST FIRST-CLASS LIMITATION - LIABILITY FOR TRANSPORTATION TAX ON EXCESS FARE FOR SUPERIOR ACCOMMODATIONS WHILE A GOVERNMENT TRAVELER WHO OBTAINS SUPERIOR TRAVEL ACCOMMODATIONS BY THE USE OF(1GOVERNMENT TRANSPORTATION REQUEST IS REQUIRED, IN VIEW OF THE LOWEST FIRST-CLASS FARE LIMITATION OF THE ACT OF MARCH 3, 1933, TO REFUND THE DIFFERENCE BETWEEN THE COST OF THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED AND THE COST OF THE SUPERIOR ACCOMMODATIONS, THE FEDERAL TRANSPORTATION TAX ON SUCH DIFFERENCE NEED NOT BE COLLECTED WHERE THE SUPERIOR ACCOMMODATIONS ARE OBTAINED IN ORDER THE BETTER TO SERVE THE GOVERNMENT'S INTEREST OR TO EFFECT AN ECONOMY IN THE GOVERNMENT'S BEHALF, RATHER THAN FOR THE COMFORT AND CONVENIENCE OF THE TRAVELER.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR, DIVISION OF CENTRAL ADMINISTRATIVE SERVICES, OFFICE FOR EMERGENCY MANAGEMENT, MAY 27, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 26, 1944, AS FOLLOWS:

THE ACT OF MARCH 3, 1933, 5 U.S.C.A. 73B, PROVIDES:

"WHENEVER BY OR UNDER AUTHORITY OF LAW ACTUAL EXPENSES FOR TRAVEL MAY BE ALLOWED TO OFFICERS OR EMPLOYEES OF THE UNITED STATES, SUCH ALLOWANCE, IN THE CASE OF TRAVEL ORDERED AFTER MARCH 3, 1933, SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.'

THE SEVERAL ACCOUNTING OFFICERS OF THE UNITED STATES HAVE CONSISTENTLY HELD THAT THIS ACT PROHIBITS THE USE OF SUPERIOR ACCOMMODATIONS AT GOVERNMENT EXPENSES EXCEPT ON EXTRA FARE TRAINS OR OTHER TRAINS WHICH DO NOT CARRY UPPER OR LOWER BERTH ACCOMMODATIONS. 22 C.G. 1122.

I AM FULLY COGNIZANT OF THE NUMEROUS DECISIONS WHICH HAVE BEEN RENDERED WHICH STATE THAT THIS ACT ADMITS OF NO EXCEPTION AND THAT THE FACT THAT NO UPPER OR LOWER BERTH ACCOMMODATIONS CAN BE OBTAINED DOES NOT AUTHORIZE THE PAYMENT FOR SUPERIOR ACCOMMODATIONS FROM APPROPRIATED MONIES. DECISION B- 39503 DATED FEBRUARY 2, 1944 (23 COMP. GEN. 562; 14 C.G. 460; 23 ID. 9:23 ID. 290).

BECAUSE OF THE TREMENDOUS RAILROAD TRAFFIC RESULTING FROM THE WAR CONDITIONS AND THE RESTRICTION ON OTHER MODES OF TRANSPORTATION, IT HAS BECOME EXTREMELY DIFFICULT FOR GOVERNMENT TRAVELERS TO OBTAIN UPPER OR LOWER BERTH ACCOMMODATIONS WHEN NECESSARY, AND AS A RESULT, THE TRAVELERS ARE FACED WITH THE CHOICE OF EITHER OBTAINING SUPERIOR ACCOMMODATIONS AT ADDITIONAL PERSONAL EXPENSE OR REMAINING OVER AT THEIR TEMPORARY POST OF DUTY UNTIL SUCH ACCOMMODATIONS CAN BE OBTAINED, THUS INCURRING PER DIEM EXPENSES WHICH IN MANY CASES ARE IN EXCESS OF THE EXTRA COST OF SUPERIOR ACCOMMODATIONS. ON THE OTHER HAND OTHER GOVERNMENT EMPLOYEES HAVE IN MANY CASES OBTAINED SUPERIOR ACCOMMODATIONS BY THE USE OF GOVERNMENT TRANSPORTATION REQUESTS AND HAVE REFUNDED TO THE GOVERNMENT THE DIFFERENCE BETWEEN THE COST OF LOWER BERTH AND THE SUPERIOR ACCOMMODATIONS USED. WHILE THERE IS NO QUESTION IN RESPECT TO THE REQUIREMENT OF REFUNDING THE DIFFERENCE IN COST BETWEEN LOWER BERTH AND THE SUPERIOR ACCOMMODATIONS USED, THE QUESTION AS TO WHETHER THE EMPLOYEE IS REQUIRED TO REFUND TO THE GOVERNMENT THE DIFFERENCE IN TAX ON THESE TWO TYPES OF ACCOMMODATIONS HAS PRESENTED ITSELF.

WE FEEL THAT SINCE THE TRIP ITSELF IS ON OFFICIAL GOVERNMENT BUSINESS AND SINCE THE GOVERNMENT IS NOT REQUIRED TO PAY ANY PORTION OF THIS TAX, AND THAT IN SUCH CASES THE USE OF SUPERIOR ACCOMMODATIONS WAS TO EFFECT AN ECONOMY IN THE GOVERNMENT'S BEHALF, THAT THE EMPLOYEE SHOULD NOT BE REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE TAX ON LOWER BERTH AND THE SUPERIOR ACCOMMODATIONS USED.

IN THIS RESPECT IT SHOULD BE NOTED THAT THE LANGUAGE IN THE ACT OF MARCH 3, 1933, SUPRA, PROVIDES SUCH ALLOWANCES * * * SHALL NOT EXCEED THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED IN SUCH TRAVEL.' (ITALICS SUPPLIED.) IT WOULD APPEAR THAT TO REQUIRE THE EMPLOYEE TO REFUND ONLY THE DIFFERENCE BETWEEN THE COST OF LOWER BERTH AND SUPERIOR ACCOMMODATIONS, EXCLUSIVE OF TAX, WOULD CONSTITUTE COMPLIANCE WITH THE STATUTE IN VIEW OF THE FACT THAT THE GOVERNMENT ITSELF IS NOT REQUIRED TO PAY THE ADDITIONAL TAX AND, THEREFORE, THE APPROPRIATE APPROPRIATION WOULD NOT BE CHARGED WITH ANY PORTION OF THE COST OF SUPERIOR ACCOMMODATIONS.

ACCORDINGLY, I WOULD APPRECIATE YOUR ADVISING ME WHETHER A GOVERNMENT EMPLOYEE TRAVELING ON OFFICIAL GOVERNMENT BUSINESS WHO USES SUPERIOR ACCOMMODATIONS IS REQUIRED TO REFUND IN ADDITION TO THE DIFFERENCE IN COST BETWEEN LOWER BERTH AND THE SUPERIOR ACCOMMODATIONS USED, THE DIFFERENCE IN TAX BETWEEN THESE TWO TYPES OF ACCOMMODATIONS.

WHILE AS BETWEEN A TRAVELER AND A COMMON CARRIER, THE BURDEN OF THE FEDERAL TAX ON PASSENGER TRANSPORTATION IS BORNE BY THE TRAVELER, NEVERTHELESS THE TAX DOES NOT REPRESENT A PART OF THE CHARGE FOR THE TRANSPORTATION FURNISHED, BUT RATHER IS A CHARGE REPRESENTING A PECUNIARY BURDEN IMPOSED FOR THE SUPPORT OF THE GOVERNMENT. COMPARE 22 COMP. GEN. 583, 623; DECISION OF JANUARY 7, 1943, B-31455. HENCE, IN ANY CASE WHERE SUPERIOR ACCOMMODATIONS ARE USED PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN FOR THE COMFORT OR CONVENIENCE OF THE EMPLOYEE, THE TRANSPORTATION TAX SHOULD NOT BE CONSIDERED AS A PART OF THE "ALLOWANCES" FOR SUPERIOR ACCOMMODATIONS, THE PAYMENT OF WHICH IS PROHIBITED BY THE PROVISIONS OF THE ACT OF MARCH 3, 1933, 47 STAT. 1516, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER.

THEREFORE, WHERE IT IS APPARENT FROM THE RECORD AS PRESENTED IN A PARTICULAR CASE THAT THE EMPLOYEE WAS REQUIRED TO OBTAIN SUPERIOR ACCOMMODATIONS IN ORDER THE BETTER TO SERVE THE INTERESTS OF THE GOVERNMENT OR TO EFFECT AN ECONOMY IN THE GOVERNMENT'S BEHALF RATHER THAN HAVING OBTAINED SUCH ACCOMMODATIONS AS A MATTER OF CHOICE FOR HIS OWN COMFORT OR CONVENIENCE, THE EMPLOYEE SHOULD BE REQUIRED TO REFUND ONLY THE DIFFERENCE BETWEEN THE COST OF THE LOWEST FIRST-CLASS RATE BY THE TRANSPORTATION FACILITY USED AND THE COST OF THE SUPERIOR ACCOMMODATION USED, EXCLUSIVE OF TAX.

ACCORDINGLY, THE QUESTION POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.