JULY 13, 1923, 3 COMP. GEN. 12
Highlights
REFUND OF EXCESS TONNAGE TAX REFUNDS OF EXCESS TONNAGE TAX ARE REQUIRED TO BE MADE GENERALLY TO THE OWNERS OR CHARTERERS OF THE VESSELS. 1923: I HAVE THE LETTER OF JUNE 2. IT WILL BE ASSUMED. WAS WRITTEN AT YOUR DIRECTION. IN RECENT CERTIFICATES OF SETTLEMENT IT IS NOTED THAT PAYMENT OF TONNAGE TAX REFUNDED HAS BEEN AUTHORIZED IN THE NAME OF THE AGENT OF A VESSEL OF THE PERSON WHO ACTUALLY MADE THE PAYMENT. THIS OFFICE REQUESTS THAT IT BE ADVISED WHETHER APPLICATIONS FOR REFUND AND CERTIFIED STATEMENTS MAY NOT BE MADE IN THE NAME OF THE AGENT OF A VESSEL OR ANY OTHER PERSON WHO ACTUALLY MAKES THE PAYMENT FOR WHICH REFUND IS ASKED. THE OPINION REFERRED TO AS NO. 22846 WAS DECISION OF JUNE 28.
JULY 13, 1923, 3 COMP. GEN. 12
REFUND OF EXCESS TONNAGE TAX REFUNDS OF EXCESS TONNAGE TAX ARE REQUIRED TO BE MADE GENERALLY TO THE OWNERS OR CHARTERERS OF THE VESSELS; REFUNDS TO PERSONS OTHER THAN THE OWNERS OR CHARTERERS MAY ONLY BE MADE UNDER EXCEPTIONAL CIRCUMSTANCES AND MUST BE SUPPORTED BY FULL STATEMENT OF THE FACTS WHICH APPEAR TO JUSTIFY SUCH PAYMENTS, TOGETHER WITH ALL NECESSARY SUPPORTING PAPERS.
ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF COMMERCE, JULY 13, 1923:
I HAVE THE LETTER OF JUNE 2, 1923, FROM THE COMMISSIONER, BUREAU OF NAVIGATION, DEPARTMENT OF COMMERCE, WHICH, IT WILL BE ASSUMED, WAS WRITTEN AT YOUR DIRECTION, REQUESTING DECISION, AS FOLLOWS:
THIS OFFICE, ACTING UNDER OPINION 22846 OF THE COMPTROLLER OF THE TREASURY, DATED JUNE 28, 1913, HAS REQUIRED CUSTOMS OFFICERS TO MAKE OUT APPLICATIONS FOR REFUND OF TONNAGE TAX (COMMERCE CAT., 1086) IN THE NAME OF THE OWNER OR CHARTERER OF THE VESSEL SUBJECT TO THE PAYMENT OF THE TAX.
IN RECENT CERTIFICATES OF SETTLEMENT IT IS NOTED THAT PAYMENT OF TONNAGE TAX REFUNDED HAS BEEN AUTHORIZED IN THE NAME OF THE AGENT OF A VESSEL OF THE PERSON WHO ACTUALLY MADE THE PAYMENT. IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY ISSUE, THIS OFFICE REQUESTS THAT IT BE ADVISED WHETHER APPLICATIONS FOR REFUND AND CERTIFIED STATEMENTS MAY NOT BE MADE IN THE NAME OF THE AGENT OF A VESSEL OR ANY OTHER PERSON WHO ACTUALLY MAKES THE PAYMENT FOR WHICH REFUND IS ASKED.
THE OPINION REFERRED TO AS NO. 22846 WAS DECISION OF JUNE 28, 1913, 65 MS. COMP. DEC., 1750, WHICH HELD, IN PART:
AS THE TONNAGE DUTY ORIGINALLY COLLECTED IN THIS CASE ($138.96) WAS EXACTED OF THE "FRENCH BARK LEON BLUM," IT MUST BE ASSUMED IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY THAT GEORGE W. PITOU IN PAYING SAID DUTY ACTED AS THE AGENT OF SAID VESSEL. HENCE ANY REFUND ON ACCOUNT OF EXCESS DUTY WOULD BE DUE TO THE VESSEL AND NOT TO GEORGE W. PITOU AS AN INDIVIDUAL.
WHILE PITOU SIGNED THE APPLICATION FOR THIS REFUND AS AGENT FOR THE VESSEL, YET THERE IS NOTHING IN THE AUDITOR'S CERTIFICATE TO INDICATE THAT THE AMOUNT THEREIN ALLOWED WAS DUE TO THE VESSEL OR PAYABLE TO PITOU IN ANY CAPACITY OTHER THAN AS AN INDIVIDUAL--- THE ONE WORD "AGENT" AFTER HIS NAME IN SAID CERTIFICATE BEING MERELY DESCRIPTIO PERSONAE.
SINCE THE AMOUNT ALLOWED BY THE AUDITOR WAS NOT, UPON THE FACTS PRESENTED, DUE TO GEORGE W. PITOU AS AN INDIVIDUAL, THE SETTLEMENT IS REVISED UPON MY OWN MOTION AND THE AUDITOR'S ACTION REVERSED.
IN DECISION OF APRIL 13, 1918, 85 MS. COMP. DEC., AT PAGE 157, IT WAS SAID:
FURTHERMORE, IN A DECISION OF THIS OFFICE DATED JUNE 28, 1913 (65 MS. COMP. DEC., 1750), IT WAS HELD THAT PAYMENT OF EXCESS TONNAGE TO A PERSON WHO ACTED AS AGENT FOR THE VESSEL WAS ERRONEOUS, AND SINCE THAT TIME IT HAS BEEN THE PRACTICE OF THE ACCOUNTING OFFICERS TO PAY SUCH TONNAGE TO EITHER THE OWNER OF THE VESSEL OR ITS CHARTERER.
IN THIS CASE THE CHARTERER OF THE S. S. SIGRID, WAS THE KONSTGODRINGSFABRIKS AKTIEBOLOGET OR THE SWEDISH VICTUALLING COMMISSION OF THE SWEDISH GOVERNMENT, AND SINCE THE AUDITOR CERTIFIED THAT THE REFUND OF THE EXCESS TONNAGE WAS DUE TO SUCH CHARTERER, HIS ACTION IS CORRECT, AND THE REQUEST OF THE LEGATION OF SWEDEN THAT THE WARRANT DRAWN AS INDICATED ABOVE BE EXCHANGED FOR ONE PAYABLE TO MCGRIFFIN AND COMPANY OF TAMPA, FLORIDA, CAN NOT, UPON THE EVIDENCE PRESENTED, BE GRANTED.
REFUNDS TO OTHERS THAN THE OWNERS OR CHARTERERS OF VESSELS ARE AUTHORIZED ONLY IN EXCEPTIONAL CASES, SUCH, FOR EXAMPLE, AS PAYMENTS MADE IN CASES SIMILAR TO THAT OF THE MASTER OF THE AMERICAN SHIP MOSHULA, SETTLEMENT NO. S-31218, OF JULY 10, 1922. (REFUND AUTHORIZED TO MASTER OF VESSEL WHO PAID TONNAGE TAX, UNDER PROTEST, FROM HIS PERSONAL FUNDS AFTER REFUSAL OF THE AGENT AND OWNERS TO PAY THE SAME.) IF IN ANY CASE IT APPEARS THAT REFUND IS PROPERLY DUE TO OTHER THAN THE OWNER OR CHARTERER OF A VESSEL, THE FACTS WHICH APPEAR TO JUSTIFY SUCH DEPARTURE FROM THE GENERAL RULE SHOULD BE FURNISHED, TOGETHER WITH THE NECESSARY SUPPORTING PAPERS.
ANSWERING SPECIFICALLY THE QUESTION OF THE SUBMISSION, YOU ARE ADVISED THAT THERE HAS BEEN NO AUTHORIZED CHANGE IN THE PROCEDURE, AND, WITH THE EXCEPTION NOTED, REFUNDS ARE NOW, AS HERETOFORE, REQUIRED TO BE MADE TO THE OWNERS OR CHARTERERS OF THE VESSELS.