B-56153, MARCH 7, 1946, 25 COMP. GEN. 637

B-56153, MARCH 7, 1946, 25 COMP. GEN. 637

NATIONAL PARK REVENUES - DISPOSITION FEES OR CHARGES COLLECTED FOR THE PRIVILEGE OF FILMING MOTION PICTURES IN NATIONAL PARKS ARE TO BE CONSIDERED AS "REVENUES OF THE NATIONAL PARKS" WITHIN THE PURVIEW OF THE ACT OF JUNE 12, 1917, AS AMENDED, WHICH ARE REQUIRED TO BE COVERED INTO THE TREASURY TO THE CREDIT OF THE APPROPRIATE MISCELLANEOUS RECEIPT ACCOUNT, AND MAY NOT BE ADMINISTRATIVELY REGARDED AS DONATIONS FOR THE PURPOSE OF CREDITING THEM, PURSUANT TO SECTION 2 OF THE ACT OF JULY 10, 1935, TO THE " NATIONAL PARK TRUST FUND.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 7, 1946:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 4, 1946, FROM THE ACTING FINANCE OFFICER, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, READING AS FOLLOWS:

THIS WILL ACKNOWLEDGE YOUR LETTER (FILE AB 3.1 FLW) OF JANUARY 11 REFERRING TO SCHEDULE OF COLLECTIONS NO. 36-50, DECEMBER 1945, ACCOUNTS OF THE CHIEF DISBURSING OFFICER, LOS ANGELES, CALIFORNIA, REPORTING A COLLECTION OF $50 REMITTED BY PARAMOUNT PICTURES, INC. AS A DONATION, AND CREDITED TO APPROPRIATION ACCOUNT "14X8037 NATIONAL PARK SERVICE, DONATIONS.' YOU STATE THAT, SINCE THE PERTINENT RECEIPT AND AGREEMENT DISCLOSE THAT THE COLLECTION REPRESENTS A FEE FOR A PERMIT TO FILM A MOTION PICTURE IN SEQUOIA NATIONAL PARK, IT IS PROPER FOR CREDIT TO MISCELLANEOUS RECEIPTS AND WILL BE SO ADJUSTED BY YOUR OFFICE.

THE CHARGE IN QUESTION IS BASED ON THE SECRETARY OF THE INTERIOR'SORDER NO. 2029 OF FEBRUARY 26, 1945, PUBLISHED IN THE FEDERAL REGISTER OF MARCH 6, 1945 (10 F.R. 2522) AND AMENDED BY THE SECRETARY'S ORDER NO. 2056 OF MAY 24, 1945, AS FOLLOWS:

" ORDER NO. 2029 OF FEBRUARY 26, 1945 (10 F.R. 2522), IS HEREBY AMENDED BY ADDING THE FOLLOWING PARAGRAPH AT THE END OF SECTION 5.2 (C):

" WHERE AN AREA ADMINISTERED BY THE NATIONAL PARK SERVICE IS INVOLVED, THE CHARGE SHALL BE PAID IN THE FORM OF A DONATION TO THE NATIONAL PARK TRUST FUND.'

"/5 U.S.C. 22; 39 STAT. 535, 16 U.S.C. 3)"

ACCORDINGLY, THE DEPOSIT OF $50 ON CERTIFICATE OF DEPOSIT NO. 36-50, DATED DECEMBER 1, 1945, AND COVERED INTO THE TREASURY ON COVERING WARRANT NO. 12903, DATED DECEMBER 17, 1945, IS PROPERLY FOR CREDIT TO THE TRUST FUND RECEIPT ACCOUNT "148164.1 CONTRIBUTIONS TO NATIONAL PARK TRUST FUND" INSTEAD OF MISCELLANEOUS RECEIPTS. A REPLY TO YOUR LETTER HAS BEEN WITHHELD PENDING THE RECEIPT OF A TRANSFER AND A COUNTER WARRANT TO EFFECT THE ADJUSTMENT MENTIONED IN THE LETTER. SINCE IT DOES NOT APPEAR THAT YOU HAVE ALREADY ACCOMPLISHED THE ADJUSTMENT, IT IS SUGGESTED THAT YOU CREDIT THE TRUST FUND RECEIPT ACCOUNT "148064.1 CONTRIBUTIONS NATIONAL PARK TRUST FUND" INSTEAD OF MISCELLANEOUS RECEIPTS. HOWEVER, IF YOU HAVE ALREADY ISSUED A TRANSFER AND COUNTER WARRANT ADJUSTING THE CREDIT, WE WILL PREPARE STANDARD FORM 1097 AND FORWARD TO YOUR OFFICE TO EFFECT TRANSFER OF THE CREDIT FROM MISCELLANEOUS RECEIPTS TO THE TRUST FUND RECEIPT ACCOUNT, 148064.1.

THE TRUST FUND RECEIPT ACCOUNT,"8037 DONATIONS TO NATIONAL PARK SERVICE," ORIGINALLY PROPOSED FOR CREDIT IN THE TRANSACTION INVOLVED IN THE FOREGOING LETTER, WAS ESTABLISHED UNDER AUTHORITY OF THE ACT OF JUNE 5, 1920, 41 STAT. 917, WHICH PROVIDES, IN PART, AS FOLLOWS:

HEREAFTER THE SECRETARY OF THE INTERIOR IN HIS ADMINISTRATION OF THE NATIONAL PARK SERVICE IS AUTHORIZED, IN HIS DISCRETION, TO ACCEPT PATENTED LANDS, RIGHTS OF WAY OVER PATENTED LANDS OR OTHER LANDS, BUILDINGS, OR OTHER PROPERTY WITHIN THE VARIOUS NATIONAL PARKS AND NATIONAL MONUMENTS, AND MONEYS WHICH MAY BE DONATED FOR THE PURPOSES OF THE NATIONAL PARK AND MONUMENT SYSTEM.

THE TRUST FUND RECEIPT ACCOUNT,"8064.1 CONTRIBUTIONS TO NATIONAL PARK TRUST FUND," TO WHICH IT IS REQUESTED THE FUNDS BE ADJUSTED, WAS PRESCRIBED IN PURSUANCE OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 10, 1935, 49 STAT. 477, WHICH PROVIDES:

THE BOARD IS HEREBY AUTHORIZED TO ACCEPT, RECEIVE, HOLD, AND ADMINISTER SUCH GIFTS OR BEQUESTS OF PERSONAL PROPERTY FOR THE BENEFIT OF, OR IN CONNECTION WITH, THE NATIONAL PARK SERVICE, ITS ACTIVITIES, OR ITS SERVICE, AS MAY BE APPROVED BY THE BOARD, BUT NO SUCH GIFT OR BEQUEST WHICH ENTAILS ANY EXPENDITURE NOT TO BE MET OUT OF THE GIFT, BEQUEST OR THE INCOME THEREOF SHALL BE ACCEPTED WITHOUT THE CONSENT OF CONGRESS.

THE MONEYS OR SECURITIES COMPOSING THE TRUST FUNDS GIVEN OR BEQUEATHED TO THE BOARD SHALL BE RECEIPTED FOR BY THE SECRETARY OF THE TREASURY, WHO SHALL INVEST, REINVEST, OR RETAIN INVESTMENTS AS THE BOARD MAY FROM TIME TO TIME DETERMINE. THE INCOME, AS AND WHEN COLLECTED, SHALL BE COVERED INTO THE TREASURY OF THE UNITED STATES IN A TRUST FUND ACCOUNT TO BE KNOWN AS THE " NATIONAL PARK TRUST FUND" SUBJECT TO DISBURSEMENT BY THE DIVISION OF DISBURSEMENT, TREASURY DEPARTMENT, FOR THE PURPOSES IN EACH CASE SPECIFIED: PROVIDED, HOWEVER, THAT THE BOARD IS NOT AUTHORIZED TO ENGAGE IN ANY BUSINESS, NOR SHALL THE SECRETARY OF THE TREASURY MAKE ANY INVESTMENT FOR ACCOUNT OF THE BOARD THAT MAY NOT LAWFULLY BE MADE BY A TRUST COMPANY IN THE DISTRICT OF COLUMBIA, EXCEPT THAT THE SECRETARY MAY MAKE ANY INVESTMENTS DIRECTLY AUTHORIZED BY THE INSTRUMENT OF GIFT, AND MAY RETAIN ANY INVESTMENTS ACCEPTED BY THE BOARD.

IT WILL BE NOTED, SO FAR AS HERE MATERIAL, THAT THE AUTHORITY IN THE PROVISIONS JUST QUOTED TO ACCEPT FUNDS IN TRUST FOR NATIONAL PARK SERVICE PURPOSES RELATES TO "DONATIONS," OR "GIFTS," OR ,BEQUESTS.' NOWHERE IN THE INVOLVED STATUTES IS THERE PROVISION, SUGGESTION, OR IMPLICATION THAT ORDINARY OPERATING REVENUES OF THE PARK SYSTEM ARE SUBJECT TO SUCH DISPOSITION. TO THE CONTRARY, THE ACT OF JUNE 12, 1917, 40 STAT. 153, AS AMENDED BY THE ACT OF MAY 24, 1922, 42 STAT. 590 (16 U.S.C. 452), PROVIDES:

ALL REVENUES OF THE NATIONAL PARKS SHALL BE COVERED INTO THE TREASURY TO THE CREDIT OF MISCELLANEOUS RECEIPTS, EXCEPT IN CASE OF HOT SPRINGS NATIONAL PARK, SUCH AS MAY BE NECESSARY TO PAY OBLIGATIONS OUTSTANDING ON JUNE 30, 1922, AND THE SECRETARY OF THE INTERIOR IS DIRECTED TO SUBMIT, ANNUALLY, ESTIMATES OF THE AMOUNTS REQUIRED FOR THE CARE, MAINTENANCE, AND DEVELOPMENT OF THE SAID PARKS.

ESSENTIALLY,"DONATIONS," "GIFTS," OR "BEQUESTS" ARE GRATUITOUS CONVEYANCES OR TRANSFERS OF OWNERSHIP IN PROPERTY WITHOUT ANY CONSIDERATION. IN CONTRAST, THE FUNDS HERE INVOLVED REPRESENT A PAYMENT IN CONSIDERATION OF THE GRANTING OF A PRIVILEGE TO FILM MOTION PICTURES AND IT DOES NOT APPEAR HOW THEIR INTRINSIC CHARACTER MAY BE CHANGED BY AN ADMINISTRATIVE ORDER CHARACTERIZING THEM AS A "DONATION.' AS A MATTER OF FACT THE ADMINISTRATIVE ORDER RECOGNIZES THAT SUMS RECEIVED UNDER SUCH CIRCUMSTANCES ARE "FEES" OR "CHARGES" BUT MERELY DIRECTS THAT THEY BE CONSIDERED AS "IN THE FORM OF A DONATION" FOR THE PURPOSE OF CREDITING THEM TO THE TRUST FUND RATHER THAN TO MISCELLANEOUS RECEIPTS.

TO THE EXTENT THAT THE AMENDING ORDER NO. 2056 DIRECTS THAT THE CHARGES OR FEES INVOLVED SHOULD BE CONSIDERED AS DONATIONS FOR THE PURPOSE OF CREDITING THE TRUST FUND IT APPEARS TO BE INCONSISTENT WITH THE PROVISIONS OF THE ACT OF JUNE 12, 1917, AS AMENDED, AND, THEREFORE, MAY NOT CONTROL THE DISPOSITION OF THE RECEIPTS INVOLVED.

ACCORDINGLY, THE ADJUSTMENT ACCOMPLISHED BY TRANSFER AND COUNTER WARRANT NO. 4826, DATED JANUARY 25, 1946, OBJECTED TO IN THE QUOTED LETTER, IS SUSTAINED. ALL FUTURE SIMILAR COLLECTIONS SHOULD BE SCHEDULED AND DEPOSITED FOR CREDIT TO THE GENERAL FUND RECEIPT ACCOUNT "0521 RIGHTS-OF- WAY ON AND OCCUPANCY OF PUBLIC LANDS AND RESERVATIONS.'