B-47661, MARCH 24, 1945, 24 COMP. GEN. 696

B-47661: Mar 24, 1945

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TRANSPORTATION OF DEPENDENTS WHILE THE CONDITIONS UNDER WHICH THE TRANSPORTATION TAX IMPOSED BY SECTION 3469 OF THE INTERNAL REVENUE CODE MAY BE REIMBURSED TO NAVY OFFICERS WHO PROCURE TRANSPORTATION WITH PRIVATE FUNDS WHEN TRAVELING PURSUANT TO ORDERS UNDER WHICH THEY ARE ENTITLED TO TRANSPORTATION IN KIND. PRIMARILY IS AN ADMINISTRATIVE MATTER. IN CONNECTION WITH WHICH NO TAX IS IMPOSED. WERE UNAVAILABLE. WITH RESPECT TO TRANSPORTATION OF DEPENDENTS UPON PERMANENT CHANGE OF STATION DO NOT INCLUDE THE RIGHT TO REIMBURSEMENT OF THE TRANSPORTATION TAX IMPOSED BY SECTION 3469 OF THE INTERNAL REVENUE CODE WHICH IS REQUIRED TO PAY IN CONNECTION WITH THE PURCHASE OF TRANSPORTATION FOR HIS DEPENDENTS.

B-47661, MARCH 24, 1945, 24 COMP. GEN. 696

FEDERAL TRANSPORTATION TAX - NAVY OFFICERS - TRAVEL IN OTHER THAN MILEAGE STATUS; TRANSPORTATION OF DEPENDENTS WHILE THE CONDITIONS UNDER WHICH THE TRANSPORTATION TAX IMPOSED BY SECTION 3469 OF THE INTERNAL REVENUE CODE MAY BE REIMBURSED TO NAVY OFFICERS WHO PROCURE TRANSPORTATION WITH PRIVATE FUNDS WHEN TRAVELING PURSUANT TO ORDERS UNDER WHICH THEY ARE ENTITLED TO TRANSPORTATION IN KIND, AS DISTINGUISHED FROM MILEAGE, AND THE EVIDENCE NECESSARY TO SUPPORT A CLAIM THEREFOR, PRIMARILY IS AN ADMINISTRATIVE MATTER, IT WOULD SEEM THAT REIMBURSEMENT SHOULD BE CONDITIONED UPON A CLEAR SHOWING THAT GOVERNMENT TRANSPORTATION REQUESTS, IN CONNECTION WITH WHICH NO TAX IS IMPOSED, WERE UNAVAILABLE. A NAVY OFFICER'S RIGHTS UNDER SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, AND REGULATIONS PURSUANT THERETO, WITH RESPECT TO TRANSPORTATION OF DEPENDENTS UPON PERMANENT CHANGE OF STATION DO NOT INCLUDE THE RIGHT TO REIMBURSEMENT OF THE TRANSPORTATION TAX IMPOSED BY SECTION 3469 OF THE INTERNAL REVENUE CODE WHICH IS REQUIRED TO PAY IN CONNECTION WITH THE PURCHASE OF TRANSPORTATION FOR HIS DEPENDENTS, AND NEITHER MAY THE TRANSPORTATION TAX BE INCLUDED AS A PART OF THE COMMERCIAL TRANSPORTATION COSTS AUTHORIZED TO BE PAID UNDER SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MARCH 24, 1945:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 7, 1945, REQUESTING DECISION ON TWO QUESTIONS HEREINAFTER QUOTED, BASED ON FACTS AND CIRCUMSTANCES STATED IN A LETTER, FROM THE ASSISTANT CHIEF OF NAVAL PERSONNEL, DATED DECEMBER 13, 1944, AS FOLLOWS: SUBJECT: TRANSPORTATION TAX--- REIMBURSEMENT OF. REF. (A) SECTION 307, REVENUE ACT OF 1943, PUBLIC LAW 235.

(B) ORDER OF THE SECRETARY OF THE TREASURY, 29 APRIL 1944,

F.R.D. 44-6128. (C) COMPTROLLER GENERAL DECISION B-36378,

13 SEPTEMBER 1943. (D) COMPTROLLER GENERAL DECISION B-38666, 4

JANUARY 1944. (E) ALNAV 100 OF 1 JUNE 1944.

1. IT WILL BE NOTED FROM THE ENCLOSURE THAT LIEUTENANT COMMANDER THOMAS A. ALLEN, USNR, IS REQUESTING REIMBURSEMENT IN THE SUM OF $119.21, REPRESENTING THE AMOUNT EXPENDED AS TAX ON TRANSPORTATION OF HIS DEPENDENTS FROM LOS ANGELES, CALIFORNIA, TO CHICAGO, ILLINOIS, INCIDENT TO BEING ORDERED TO ACTIVE DUTY FROM HIS HOME IN LOS ANGELES AND ASSIGNMENT TO PERMANENT DUTY AT CHICAGO. THE BASIC CLAIM DID NOT INCLUDE ITEMS COVERING TAX EXPENDITURES, AND REIMBURSEMENT WAS MADE ON THE BASIS OF COMMERCIAL COSTS OF TRANSPORTATION AS PROVIDED BY EXISTING LAW AND REGULATIONS.

2. REFERENCE (B) AUTHORIZES EXEMPTION FROM PAYMENT OF TAX ON TRANSPORTATION OF PERSONS FURNISHED TO THE UNITED STATES UPON GOVERNMENT TRANSPORTATION REQUESTS, EFFECTIVE JUNE 1, 1944, AND REQUIRES DISCONTINUANCE OF THE USE OF TAX EXEMPTION CERTIFICATES, T.D. FORM 731, EFFECTIVE THE SAME DATE. REFERENCES (C) AND (D) AUTHORIZE REIMBURSEMENT OF TAX EXPENDITURES UNDER CONDITIONS CITED THEREIN, WHICH INDICATED THAT A SHOWING THAT TRANSPORTATION REQUESTS OR EXEMPTION CERTIFICATES WERE NOT AVAILABLE WAS NECESSARY. REFERENCE (E), BASED ON PROVISIONS OF REFERENCES (A) AND (B), ALSO ON THE PROVISIONS OF REFERENCES (C) AND (D), PROVIDES THAT REIMBURSEMENT MAY BE MADE FOR THE AMOUNT OF TAX PAID BY THE TRAVELER UNDER PER DIEM ORDERS WHEN TRANSPORTATION REQUESTS WERE NOT AVAILABLE.

3. NORMALLY, IT IS CONSIDERED THAT TRANSPORTATION REQUESTS ARE AVAILABLE FOR ALL OFFICIAL TRAVEL OF PERSONNEL AND DEPENDENTS UNDER ORDERS ENTITLING THEM TO TRANSPORTATION IN KIND, AS DISTINGUISHED FROM MILEAGE. NOTWITHSTANDING THIS FACT, HOWEVER, OCCASIONS ARISE WHERE, THROUGH LACK OF KNOWLEDGE OF PROPER PROCEDURE, PERSONAL PREFERENCE OR CONVENIENCE, OR DESIRE TO TRAVEL BY CIRCUITOUS ROUTES, TRANSPORTATION REQUESTS ARE NOT OBTAINED. THIS IS PARTICULARLY TRUE WITH RESPECT TO TRAVEL OF DEPENDENTS, AND OCCASIONALLY WITH OFFICERS UNDER PER DIEM ORDERS WITH DELAY ENROUTE.

THE FIRST QUESTION STATED IN YOUR LETTER IS AS FOLLOWS:

(A) WHETHER, UNDER THE PROVISIONS OF SECTION 307 OF THE REVENUE ACT OF 1943 ( PUBLIC LAW 235-78TH CONGRESS) AND THE ORDER OF THE SECRETARY OF THE TREASURY, DATED APRIL 29, 1944, FEDERAL REGISTER DOCUMENT 44-6128, A SHOWING THAT TRANSPORTATION REQUESTS WERE ACTUALLY NOT AVAILABLE IS A REQUISITE TO REIMBURSEMENT FOR AMOUNT OF TAX PAID BY PERSONNEL TRAVELING UNDER ORDERS OTHER THAN MILEAGE, OR WHETHER A MERE SHOWING THAT TRANSPORTATION REQUESTS WERE NOT USED IS ALL THAT IS SUFFICIENT.

IT IS UNDERSTOOD THAT THE QUESTION RELATES TO OFFICER PERSONNEL WHO ARE TRAVELING UNDER ORDERS WHICH ENTITLE THEM TO TRANSPORTATION IN KIND AS DISTINGUISHED FROM MILEAGE.

SECTION 3469, CHAPTER 30, OF THE INTERNAL REVENUE CODE, AS ADDED BY SECTION 554 OF THE REVENUE ACT OF 1941, 55 STAT. 721, AND AMENDED BY SECTION 609 OF THE REVENUE ACT OF 1942, 56 STAT. 977, AND SECTION 302 OF THE REVENUE ACT OF 1943, ENACTED FEBRUARY 25, 1944 (26 U.S.C. 3469 (A) AND (C) (, PROVIDES THAT THERE SHALL BE IMPOSED UPON THE AMOUNT PAID WITHIN THE UNITED STATES FOR TRANSPORTATION OF PERSONS BY RAIL MOTOR VEHICLE, WATER OR AIR, WITHIN OR WITHOUT THE UNITED STATES, AND FOR SEATING OR SLEEPING ACCOMMODATIONS IN CONNECTION WITH SUCH TRANSPORTATION, A TAX EQUAL TO 15 PERCENTUM OF THE AMOUNT SO PAID. SECTION 307 (C) OF SAID REVENUE ACT OF 1943, 58 STAT. 66, EMPOWERED THE SECRETARY OF THE TREASURY, UNDER CONDITIONS THEREIN STATED, TO AUTHORIZE EXEMPTION FROM THE TAX IMPOSED BY CHAPTERS 19, 29 OR 30 OF THE INTERNAL REVENUE CODE; AND, BY VIRTUE OF THIS AUTHORITY, THE ACTING SECRETARY OF THE TREASURY ON APRIL 29, 1944, AUTHORIZED EXEMPTION "FROM THE TAX IMPOSED BY SECTION 3469 OF THE INTERNAL REVENUE CODE (26 U.S.C. 3469) AS TO ANY PAYMENT FOR TRANSPORTATION OF PERSONS FURNISHED TO THE UNITED STATES UPON A UNITED STATES GOVERNMENT TRANSPORTATION REQUEST.' SEE FEDERAL REGISTER OF MAY 2, 1944, PAGE 4615.

THE FIRST AND SECOND PARAGRAPHS OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, AS AMENDED BY SECTION 9 OF THE ACT OF SEPTEMBER 7, 1944, 58 STAT. 730, PROVIDE, IN PART, AS OLLOWS:

OFFICERS * * * WHEN TRAVELING UNDER COMPETENT ORDERS WITHOUT TROOPS SHALL RECEIVE A MILEAGE ALLOWANCE AT THE RATE OF 8 CENTS PER MILE * * * BUT IN CASES WHEN ORDERS ARE GIVEN FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, AS DETERMINED BY THE HEAD OF THE EXECUTIVE DEPARTMENT CONCERNED, HE MAY, IN HIS DISCRETION, DIRECT THAT ACTUAL AND NECESSARY EXPENSES ONLY BE ALLOWED. * * *

UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, NO OFFICER OF THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL BE ALLOWED OR PAID ANY SUM IN EXCESS OF EXPENSES ACTUALLY INCURRED FOR SUBSISTENCE WHILE TRAVELING ON DUTY AWAY FROM HIS DESIGNATED POST OF DUTY, NOR ANY SUM FOR SUCH EXPENSES ACTUALLY INCURRED IN EXCESS OF $7 PER DAY. THE HEADS OF THE EXECUTIVE DEPARTMENTS CONCERNED ARE AUTHORIZED TO PRESCRIBE PER DIEM RATES OF ALLOWANCE, NOT EXCEEDING $6, IN LIEU OF SUBSISTENCE TO OFFICERS TRAVELING ON OFFICIAL BUSINESS AND AWAY FROM THEIR DESIGNATED POSTS OF DUTY * * *.

IN THE NAVAL APPROPRIATION ACT, 1944, 57 STAT. 203, AND THE NAVAL APPROPRIATION ACT, 1945, 58 STAT. 308, MAKING APPROPRIATIONS FOR THE NAVAL SERVICE FOR THE YEARS ENDING JUNE 30, 1944, AND JUNE 30, 1945, UNDER THE HEADING "TRANSPORTATION AND RECRUITING" PROVISION IS MADE AS FOLLOWS:

FOR MILEAGE AND ACTUAL AND NECESSARY EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE AS AUTHORIZED BY LAW TO OFFICERS AND NURSES WHILE TRAVELING UNDER ORDERS, INCLUDING EXPENSES WHEN ON DUTY WITH TRAVELING RECRUITING PARTIES * * *.

* * * THAT THE SECRETARY, IN PRESCRIBING PER DIEM RATES OF ALLOWANCE IN ACCORDANCE WITH THE LAW, IS HEREBY AUTHORIZED TO PRESCRIBE SUCH PER DIEM, WHETHER OR NOT ORDERS ARE GIVEN TO OFFICERS FOR TRAVEL TO BE PERFORMED REPEATEDLY BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY AND WITHOUT REGARD TO THE LENGTH OF TIME AWAY FROM THEIR DESIGNATED POSTS OF DUTY UNDER SUCH ORDERS * * *.

IT HAS BEEN RECOGNIZED THAT FOR TRAVEL UNDER COMPETENT ORDERS UNDER CIRCUMSTANCES WHICH DO NOT PERMIT PAYMENT OF AN ALLOWANCE FOR TRANSPORTATION EXPENSES, AN OFFICER OF THE NAVY IS ENTITLED TO REIMBURSEMENT OF THE ACTUAL AND NECESSARY TRANSPORTATION EXPENSES INCURRED BY HIM INCIDENT TO THE TRAVEL DIRECTED, THE AMOUNT OF SUCH REIMBURSEMENT NOT TO EXCEED WHAT IT WOULD HAVE COST THE GOVERNMENT HAD TRANSPORTATION BEEN FURNISHED IN KIND BY MEANS OF A TRANSPORTATION REQUEST. IN THAT CONNECTION THE FOLLOWING PROVISIONS APPEAR IN THE UNITED STATES NAVY TRAVEL INSTRUCTIONS:

PARAGRAPH 2, ARTICLE 2500---

2. MANNER OF FURNISHING TRAVEL EXPENSES.--- TRANSPORTATION MAY BE FURNISHED IN KIND, OR REIMBURSEMENT MAY BE MADE FOR EXPENSES OF TRAVEL ON THE BASIS OF ACTUAL EXPENSES INCURRED OR ON A PER DIEM OR MILEAGE ALLOWANCE, DEPENDING ON THE CIRCUMSTANCES AND THE PERSONNEL CONCERNED.

PARAGRAPH 1 (B), ARTICLE 2509---

(B) AS REIMBURSEMENT FOR TRAVEL EXPENSES OF ALL EXCEPT DEPENDENTS CAN BE MADE ONLY FOR THE AMOUNT THE GOVERNMENT WOULD HAVE PAID HAD THE TRANSPORTATION BEEN OFFICIALLY REQUESTED, TRANSPORTATION REQUESTS WILL BE USED WHENEVER PRACTICABLE FOR OFFICERS, MIDSHIPMEN, AND ENLISTED PERSONNEL, NURSES, NAVAL RESERVES, AND CIVILIANS TRAVELING ON OFFICIAL BUSINESS, EXCEPT AS PROVIDED IN ART. 2503-5 (A).

PARAGRAPH 5, ARTICLE 2511---

5. PAYMENT OF CLAIM FOR REIMBURSEMENT.---

(A) OFFICERS.--- * * * * * * * *

(4) WHEN TRAVEL ORDERS AUTHORIZE PER DIEM IN LIEU OF SUBSISTENCE OR ACTUAL EXPENSES, TRAVEL CLAIMS MAY BE PRESENTED TO ANY DISBURSING OFFICER FOR PAYMENT. REIMBURSEMENT FOR TRANSPORTATION PAID FOR BY OFFICERS SHALL BE ON THE BASIS OF WHAT IT WOULD HAVE COST THE GOVERNMENT IF TRANSPORTATION HAD BEEN PERFORMED ON TRANSPORTATION REQUEST VIA THE SHORTEST USUALLY TRAVELED ROUTE (SEE ART. 2509-1 (B) ). THESE FARES WILL BE SUPPLIED ON REQUEST TO THE BUREAU OF SUPPLIES AND ACCOUNTS OR THE DISBURSING TRANSPORTATION OFFICE, TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIF. PULLMAN RECEIPTS OR PASSENGER IDENTIFICATION CHECKS ARE REQUIRED IF PULLMAN FARES ARE PAID FOR IN CASH.

ARTICLE 2503-5 (A) CITED ABOVE, RELATES TO TRAVEL BY ENLISTED MEN AND IS NOT MATERIAL HERE.

IN DECISION OF THIS OFFICE DATED SEPTEMBER 13, 1943, 23 COMP. GEN. 188, CITED BY THE ASSISTANT CHIEF OF NAVAL PERSONNEL, THERE WAS CONSIDERED THE QUESTION WHETHER A CIVILIAN EMPLOYEE OF THE GOVERNMENT TRAVELING ON OFFICIAL BUSINESS WAS ENTITLED TO REIMBURSEMENT FOR THE TRANSPORTATION TAX PAID BY HIM IN CONNECTION WITH THE PURCHASE OF A BUS TICKET WHICH COST HIM LESS THAN $1. THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS DO NOT CONTEMPLATE THE USE OF TRANSPORTATION REQUESTS TO OBTAIN TRANSPORTATION WHERE THE COST THEREOF IS LESS THAN $1, AND, HENCE, IT WAS HELD THAT THE EMPLOYEE WAS ENTITLED TO BE REIMBURSED FOR THE TRANSPORTATION TAX PAID BY HIM. ALSO, IN DECISION OF THIS OFFICE DATED JANUARY 4, 1944, 23 COMP. GEN. 484, THERE WAS CONSIDERED AN EMPLOYEE'S RIGHT TO REIMBURSEMENT OF TRANSPORTATION FOR WHICH NO TRANSPORTATION REQUEST WAS AVAILABLE AND IT WAS HELD THAT THE TRAVELER SHOULD BE REIMBURSED FOR THE AMOUNT OF THE TRANSPORTATION TAX PAID BY HIM. HOWEVER, BOTH OF THE CITED DECISIONS INVOLVED AN EMPLOYEE'S RIGHTS UNDER THE PROVISIONS OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS AND ARE NOT FOR APPLICATION HERE, THE RIGHTS OF OFFICERS TRAVELING UNDER COMPETENT ORDERS BEING GOVERNED BY DIFFERENT STATUTORY PROVISIONS.

THE QUESTION YOU PRESENT APPEARS TO HAVE BEEN CONSIDERED ADMINISTRATIVELY SOME TIME AGO AND INSTRUCTIONS WERE ISSUED ON JUNE 1, 1944, WITH RESPECT TO THE CONDITIONS WHICH MUST EXIST TO ENTITLE AN OFFICER TO REIMBURSEMENT OF TRANSPORTATION TAX. ALNAV-100, JUNE 1, 1944, CONTAINS THE FOLLOWING PROVISION:

WHEN TRANSPORTATION REQUESTS ARE NOT AVAILABLE AND TRAVEL IS PERFORMED ON ORDERS AUTHORIZING PER DIEM, REIMBURSEMENT FOR THE AMOUNT OF TAX PAID BY TRAVELER ON AUTHORIZED TRANSPORTATION PURCHASED WILL BE MADE PROVIDED CLAIMANT SUBMITS RECEIPTS OR CERTIFIES ON CLAIM THAT TRANSPORTATION REQUESTS WERE NOT AVAILABLE WHEN TICKETS WERE PURCHASED. REIMBURSEMENT FOR TAX PAID ON SLEEPING AND PARLOR CAR ACCOMMODATION WILL NOT BE MADE UNLESS CLAIM IS SUPPORTED BY IDENTIFICATION STUBS OR RECEIPTS.

IF AN OFFICER TRAVELING UNDER CONDITIONS ENTITLING HIM TO TRANSPORTATION IN KIND AS DISTINGUISHED FROM MILEAGE, OBTAINS THE NECESSARY TRANSPORTATION BY USE OF A TRANSPORTATION REQUEST NO TRANSPORTATION TAX IS PAID. IF THE SAME OFFICER, TRAVELING UNDER LIKE CONDITIONS, HAD PROCURED TRANSPORTATION AT HIS OWN EXPENSE, HE WOULD BE ENTITLED TO REIMBURSEMENT IN AN AMOUNT IT WOULD HAVE COST THE GOVERNMENT TO FURNISH TRANSPORTATION IN KIND. IN OTHER WORDS, THE COST TO THE GOVERNMENT IN EITHER CASE WOULD BE THE SAME. HOWEVER, IN THE LATTER CASE THE OFFICER WOULD HAVE BEEN REQUIRED TO PAY THE TRANSPORTATION TAX IMPOSED BY THE LAWS INDICATED ABOVE, AND THE GOVERNMENT WOULD HAVE RECEIVED THE BENEFIT OF THAT TAX. IT WAS NECESSARY FOR THE OFFICER TO PAY THE TAX INCIDENT TO THE PROCUREMENT OF TRANSPORTATION FOR OFFICIAL TRAVEL, NO OBJECTION IS PERCEIVED TO REIMBURSING HIM THE AMOUNT OF THAT TAX. HOWEVER, THE CONDITIONS UNDER WHICH AN OFFICER MAY BE REIMBURSED THE AMOUNT OF SAID TAX AND THE EVIDENCE NECESSARY TO SUPPORT A CLAIM THEREFOR PRIMARILY IS AN ADMINISTRATIVE MATTER. IF REIMBURSEMENT IS TO BE MADE IT MUST BE MADE FROM FUNDS AVAILABLE TO THE NAVY DEPARTMENT--- SUCH FUNDS ARE NOT CREDITED WITH THE AMOUNT OF THE TAX PAID BY AN OFFICER--- AND FROM AN ADMINISTRATIVE STANDPOINT IT WOULD SEEM DESIRABLE TO REQUIRE NOT ONLY A SHOWING THAT THE TAX ACTUALLY WAS PAID BUT THAT THE NECESSARY TRANSPORTATION COULD NOT BE OBTAINED WITHOUT PAYMENT OF THE TAX; THAT IS, THAT THE USE OF A TRANSPORTATION REQUEST WAS NOT PRACTICABLE. NOT TO REQUIRE SUCH A SHOWING WOULD SEEM TO RESULT IN AN UNNECESSARY DEPLETION OF APPROPRIATED FUNDS AVAILABLE TO THE NAVY DEPARTMENT MERELY BECAUSE FOR PERSONAL REASONS OR OTHERWISE THE OFFICER CONCERNED DID NOT CHOOSE TO USE A TRANSPORTATION REQUEST.

ACCORDINGLY, YOU ARE ADVISED THAT IN MY OPINION, OFFICERS WHO PURCHASE TRANSPORTATION WITH PRIVATE FUNDS WHEN TRAVELING UNDER ORDERS ENTITLING THEM TO TRANSPORTATION IN KIND, AS DISTINGUISHED FROM MILEAGE, SHOULD NOT BE REIMBURSED FOR THE AMOUNT OF THE TRANSPORTATION TAX PAID BY THEM, EXCEPT UPON A CLEAR SHOWING THAT TRANSPORTATION REQUESTS WERE NOT AVAILABLE. YOUR SECOND QUESTION IS AS FOLLOWS:

(B) WHETHER, UNDER CONDITIONS SIMILAR TO THOSE APPLICABLE TO TRAVEL OF PERSONNEL, REIMBURSEMENT MAY BE MADE FOR TAX EXPENDITURES IN TRAVEL OF DEPENDENTS, OR WHETHER THE RM,"AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS," AS USED IN THE FIFTH PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942 (56 STAT. 365), SHOULD BE INTERPRETED TO INCLUDE THE TRANSPORTATION TAX SIMILAR TO THE PAYMENT OF MILEAGE.

THE SAID QUESTION IS UNDERSTOOD TO HAVE REFERENCE TO THE BENEFITS CONFERRED BY THE FIFTH PARAGRAPH OF SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 364, 365, AS FOLLOWS:

WHEN ANY OFFICER, WARRANT OFFICER, OR ENLISTED MAN ABOVE THE FOURTH GRADE HAVING DEPENDENTS AS DEFINED IN SECTION 4, HEREOF, IS ORDERED TO MAKE A PERMANENT CHANGE OF STATION, THE UNITED STATES SHALL FURNISH TRANSPORTATION IN KIND FROM FUNDS APPROPRIATED FOR THE TRANSPORTATION OF THE ARMY, THE NAVY, THE MARINE CORPS, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE TO HIS NEW STATION FOR SUCH DEPENDENTS * * * PROVIDED FURTHER, THAT THE PERSONNEL OF ALL THE SERVICES MENTIONED IN THE TITLE OF THIS ACT SHALL HAVE THE BENEFIT OF ALL EXISTING LAWS APPLYING TO THE ARMY AND MARINE CORPS FOR THE TRANSPORTATION OF HOUSEHOLD EFFECTS: AND PROVIDED FURTHER, THAT IN LIEU OF TRANSPORTATION IN KIND AUTHORIZED BY THIS SECTION FOR DEPENDENTS, THE PRESIDENT MAY AUTHORIZE THE PAYMENT IN MONEY OF AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

EXECUTIVE ORDER 9222, DATED AUGUST 15, 1942, PROVIDES AS FOLLOWS:

1. THE HEADS OF THE RESPECTIVE DEPARTMENTS AND ESTABLISHMENTS CONCERNED ARE HEREBY AUTHORIZED, IN LIEU OF TRANSPORTATION IN KIND FOR TRAVEL OF DEPENDENTS OF OFFICERS, WARRANT OFFICERS, AND ENLISTED MEN ABOVE THE FOURTH GRADE OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE AUTHORIZED BY THE FIFTH PARAGRAPH OF THE SAID SECTION 12 UPON PERMANENT CHANGE OF STATION, TO MAKE PAYMENT IN MONEY OF AMOUNTS EQUAL TO COMMERCIAL TRANSPORTATION COSTS FOR THE WHOLE OR SUCH PART OF THE TRAVEL OF SUCH DEPENDENTS FOR WHICH TRANSPORTATION IN KIND IS NOT FURNISHED WHEN SUCH TRAVEL SHALL HAVE BEEN COMPLETED.

2. THE HEADS OF THE RESPECTIVE DEPARTMENTS AND ESTABLISHMENTS CONCERNED MAY PRESCRIBE ADDITIONAL REGULATIONS NOT INCONSISTENT HEREWITH OR WITH THE TERMS OF THE SAID SECTION 12 AS MAY BE NECESSARY FOR CARRYING OUT THE PROVISIONS OF THIS ORDER.

ARTICLE 2505, UNITED STATES NAVY TRAVEL INSTRUCTIONS, PARAGRAPH 3 (B) (1), PROVIDES AS FOLLOWS:

(B) MAXIMUM ALLOWANCE FOR TRANSPORTATION AT GOVERNMENT EXPENSE.---

(1) UNDER EACH PERMANENT CHANGE OF STATION TRANSPORTATION FOR THE DEPENDENTS OF OFFICERS AND MEN ENTITLED THERETO IS AUTHORIZED FROM THE PERMANENT DUTY STATION FROM WHICH DETACHED TO THE PERMANENT DUTY STATION TO WHICH ORDERED VIA A DIRECT, USUALLY TRAVELED ROUTE. WHEN THE AUTHORIZED TRAVEL IS BY RAIL, DEPENDENTS ARE ENTITLED TO FIRST CLASS TRANSPORTATION AND THE AUTHORIZED PULLMAN ACCOMMODATIONS. WHEN THE AUTHORIZED TRAVEL IS BY WATER THEY ARE ENTITLED TO MINIMUM FIRST CLASS ACCOMMODATIONS, INCLUDING STATEROOM, BY THE STEAMER AUTHORIZED TO BE USED. THE MAXIMUM ALLOWANCE, THEREFORE, IS THE COMMERCIAL COST OF THE TRANSPORTATION INDICATED ABOVE BETWEEN THE OLD AND NEW STATIONS. IN LIEU OF FURNISHING OF TRANSPORTATION, SEC. 12, ACT OF JUNE 16, 1942 (56 STAT. 364) PERMITS THE PREPAYMENT BY THE OFFICER OR MAN OF THE TRANSPORTATION EXPENSES OF HIS DEPENDENTS WITH SUBSEQUENT PAYMENT IN MONEY TO THE OFFICER OR MAN CONCERNED, IN AMOUNTS EQUAL TO SUCH COMMERCIAL TRANSPORTATION COSTS WHEN TRAVEL SHALL HAVE BEEN COMPLETED. THIS IS ACCOMPLISHED BY THE SUBMISSION OF A CLAIM UNDER ART. 2513, UNDER WHICH IT IS PARTICULARLY TO BE NOTED THAT WHERE OVERSEAS OR COAST TO COAST TRAVEL IS INVOLVED, ADVANCE AUTHORITY OF THE BUREAU OF NAVAL PERSONNEL IS REQUIRED. OTHER CASES WHERE SUCH ADVANCE AUTHORITY IS NECESSARY APPEAR HEREINAFTER.

THE ABOVE-QUOTED LAW AND REGULATIONS APPEAR TO LEAVE TO THE LISTED PERSONNEL THE RIGHT TO CHOOSE THE MEANS BY WHICH THEY WILL TRANSPORT THEIR DEPENDENTS UPON PERMANENT CHANGE OF STATION. THEY MAY EITHER REQUEST THAT TRANSPORTATION IN KIND BE FURNISHED AT GOVERNMENT EXPENSE OR THEY MAY PROCURE TRANSPORTATION WITH PRIVATE FUNDS OR MAKE SUCH OTHER ARRANGEMENTS AS THEY SEE FIT FOR SUCH TRANSPORTATION. WHERE TRANSPORTATION IN KIND IS NOT FURNISHED BY THE GOVERNMENT, THE MILITARY PERSONNEL CONCERNED ARE ENTITLED--- AFTER COMPLETION OF THE TRAVEL--- TO PAYMENT OF AMOUNTS EQUAL TO THE COMMERCIAL TRANSPORTATION COSTS BETWEEN THE POINTS INVOLVED. HAS BEEN HELD THAT THE TERM "COMMERCIAL TRANSPORTATION COSTS," WITHIN THE MEANING OF THE ABOVE QUOTED ACT, MEANS THE REGULAR TARIFF RATES APPLICABLE TO THE GENERAL PUBLIC. SEE A-26674, APRIL 23, 1929; A-88144, AUGUST 12, 1937. THE RIGHT TO SUCH PAYMENT IS NOT CONDITIONED UPON THE UTILIZATION OF COMMERCIAL TRANSPORTATION BY THE DEPENDENTS AND IS BASED SOLELY UPON COMMERCIAL TRANSPORTATION COSTS. HENCE, THE AMOUNT PAYABLE UNDER THE STATUTE IS IN THE NATURE OF AN ALLOWANCE FOR TRAVEL OF DEPENDENTS PAYABLE WITHOUT REGARD TO THE TRAVELING EXPENSES ACTUALLY INCURRED.

IT HAS BEEN HELD THAT AN OFFICER OF THE NAVY TRAVELING UNDER CIRCUMSTANCES ENTITLING HIM TO A MILEAGE ALLOWANCE IS NOT ENTITLED TO REIMBURSEMENT OF TRANSPORTATION TAX PAID BY HIM. 23 COMP. GEN. 891. ALSO, IT HAS BEEN HELD THAT THE TRANSPORTATION TAX LEVIED BY SECTION 3469, CHAPTER 30, OF THE INTERNAL REVENUE CODE, DOES NOT REPRESENT A PART OF THE CHARGE FOR THE TRANSPORTATION FURNISHED. SEE 23 COMP. GEN. 898. TO HOLD THAT THE TERM "COMMERCIAL TRANSPORTATION COSTS" USED IN THE SAID SECTION OF THE PAY READJUSTMENT ACT OF 1942 INCLUDES--- IN ADDITION TO THE ACTUAL COST OF THE FARE INVOLVED--- THE TRANSPORTATION TAX IMPOSED ON THAT COST, WOULD INCREASE THE AMOUNT PAYABLE UNDER THE STATUTE BY THE AMOUNT OF THE TAX IMPOSED; AND, SINCE THE STATUTE AUTHORIZES PAYMENT ON BUT ONE BASIS, SUCH A HOLDING WOULD APPEAR TO RESULT IN PAYMENT OF THE AMOUNT OF TAX INVOLVED AS A PART OF COMMERCIAL TRANSPORTATION COSTS IN ANY CASE WHETHER A PAYMENT OF TAX WAS ACTUALLY MADE OR NOT. THE INCLUSION IN THE AMOUNT AUTHORIZED BY THE STATUTE OF AN ITEM REPRESENTING TAX ON COMMERCIAL FARES IN CASES WHERE NO TAX ACTUALLY IS PAID CLEARLY IS NOT AUTHORIZED AND, THEREFORE, IN THE ABSENCE OF A STATUTORY PROVISION TO THE CONTRARY, I AM CONSTRAINED TO HOLD THAT THE TERM ,COMMERCIAL TRANSPORTATION COSTS" DOES NOT INCLUDE TRANSPORTATION TAX.

ACCORDINGLY, YOU ARE ADVISED THAT THE BENEFITS AUTHORIZED BY SECTION 12 OF THE PAY READJUSTMENT ACT OF 1942, DO NOT INCLUDE THE RIGHT TO REIMBURSEMENT OF THE AMOUNT OF TRANSPORTATION TAX PAID BY MILITARY PERSONNEL IN PURCHASING TRANSPORTATION FOR THEIR DEPENDENTS UPON PERMANENT CHANGE OF STATION AND NEITHER MAY THE AMOUNT OF THE TRANSPORTATION TAX BE INCLUDED AS PART OF THE COMMERCIAL TRANSPORTATION COSTS AUTHORIZED TO BE PAID UNDER THE STATUTE.

THE LETTER OF LIEUTENANT COMMANDER THOMAS A. ALLEN, USNR, DATED JULY 18, 1944, IS RETURNED HEREWITH, AS REQUESTED.