JANUARY 21, 1922, 1 COMP. GEN. 377

JANUARY 21, 1922, 1 COMP. GEN. 377

REFUND OF HEAD TAX ON ALIENS WHERE MONEYS DERIVED FROM HEAD TAX ON ALIENS ENTERING THIS COUNTRY FOR A TEMPORARY STAY ARE DEPOSITED IN THE TREASURY AS MISCELLANEOUS RECEIPTS, INSTEAD OF IN A SPECIAL DEPOSIT ACCOUNT, THE REFUND OF SUCH TAX, UPON THE DEPARTURE OF THE ALIEN WITHIN THE SIXTY-DAY LIMIT FIXED BY THE REGULATIONS, IS AUTHORIZED UNDER PROPER CIRCUMSTANCES FROM THE ANNUAL APPROPRIATIONS OF THE DEPARTMENT OF LABOR FOR SUCH REFUNDS, AND CAN NOT BE MADE FROM MISCELLANEOUS RECEIPTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JANUARY 21, 1922:

I HAVE YOUR LETTER OF DECEMBER 30, 1921, AS FOLLOWS:

I AM ENCLOSING HEREWITH CERTAIN CORRESPONDENCE REGARDING THE REFUND OF HEAD TAX COLLECTED BY THE COLLECTOR OF CUSTOMS AT HONOLULU, HAWAII. APPEARS FROM THE CORRESPONDENCE AND THE RECORDS OF THIS DEPARTMENT THAT MALCOLM A. FRANKLIN, FORMER COLLECTOR OF CUSTOMS AT HONOLULU, RESIGNED HIS OFFICE ON MAY 15, 1921, AND THAT ON MAY 18, 1921, THERE WAS DEPOSITED IN HIS NAME IN THE FIRST NATIONAL BANK OF HAWAII AT HONOLULU THE SUM OF $5,965.94 FOR CREDIT TO CERTAIN ACCOUNTS, OF WHICH THE SUM OF $534 WAS FOR CREDIT TO "MISCELLANEOUS RECEIPTS--- HEAD TAX," AND THAT AMOUNT WAS SO COVERED INTO THE TREASURY BY WARRANT. IT FURTHER APPEARS THAT THE FIRM OF THEO. H. DAVIES AND CO. (LTD.) CLAIM TO BE ENTITLED TO A REFUND OF HEAD TAX COLLECTED BY COLLECTOR FRANKLIN AMOUNTING TO $120, AND THE FURTHER SUM OF $128 WHICH APPEARS TO HAVE BEEN COLLECTED BY AN ACTING COLLECTOR WHO TEMPORARILY FILLED THE OFFICE AFTER MR. FRANKLIN'S RESIGNATION. AS THE MONEYS HAVE BEEN COVERED INTO THE TREASURY AND CREDITED TO MISCELLANEOUS RECEIPTS, YOUR VIEWS ARE REQUESTED WHETHER SUCH AMOUNT AS MAY BE DUE AS REFUND OF HEAD TAX MAY BE WITHDRAWN FROM "MISCELLANEOUS RECEIPTS--- HEAD TAX" IN THE CURRENT FISCAL YEAR AND CREDITED TO A SPECIAL DEPOSIT ACCOUNT SUBJECT TO CHECK OF THE PRESENT COLLECTOR FOR PAYMENT OF THE REFUNDS.

IN THIS CONNECTION REFERENCE IS MADE TO THE ATTACHED COPY OF A DECISION OF THE COMPTROLLER OF THE TREASURY OF MARCH 27, 1914, IN A SOMEWHAT SIMILAR CASE.

THE DECISION OF MARCH 27, 1914, 68 M.S. COMP. DEC., 1863, CONCERNS THE MATTER OF THE COLLECTION AND DEPOSIT OF NAVIGATION FINES BY A COLLECTOR OF CUSTOMS, AND, FOR REASONS HEREINAFTER GIVEN, IS NOT CONTROLLING IN THE DISPOSITION OF THE INSTANT SUBMISSION.

SECTION 2 OF THE ACT OF FEBRUARY 5, 1917, 39 STAT., 875, PROVIDES IN PART:

SEC. 2. THAT THERE SHALL BE LEVIED, COLLECTED, AND PAID A TAX OF $8 FOR EVERY ALIEN, INCLUDING ALIEN SEAMEN REGULARLY ADMITTED AS PROVIDED IN THIS ACT, ENTERING THE UNITED STATES: PROVIDED, * * * THE SAID TAX SHALL BE PAID TO THE COLLECTOR OF CUSTOMS OF THE PORT OR CUSTOMS DISTRICT TO WHICH SAID ALIEN SHALL COME. * * * THAT THE SAID TAX SHALL NOT BE LEVIED ON ACCOUNT OF ALIENS WHO ENTER THE UNITED STATES * * * FOR A TEMPORARY STAY.

THE SIXTH EDITION, SEPTEMBER, 1921, OF THE IMMIGRATION LAWS AND RULES, PROVIDES IN PART AS FOLLOWS:

RULE 1, COLLECTION OF HEAD TAX.

SUBDIVISION 1. NOTICE TO COLLECTOR.--- UPON THE ARRIVAL OF ALIENS AT A SEAPORT OF THE UNITED STATES OR AT ANY DESIGNATED PORT OF ENTRY ON THE MEXICAN BORDER, THE IMMIGRATION OFFICER THERE IN CHARGE SHALL CERTIFY TO THE COLLECTOR OF CUSTOMS THE NUMBER OF SUCH ALIENS * * * TOGETHER WITH THE NAME OF THE TRANSPORTATION AGENT OR OTHER PERSON RESPONSIBLE FOR THE PAYMENT OF HEAD TAX DUE IN RESPECT OF THEM, AND SHALL SPECIFY: * * * (B) HOW MANY CLAIM TO ENTER FOR THE PURPOSE OF PASSING IN TRANSIT THROUGH THE UNITED STATES; * * *.

THEREUPON THE COLLECTOR OF CUSTOMS SHALL FORTHWITH COLLECT A TAX OF 48 FOR EACH ALIEN SO CERTIFIED.

SUBDIVISION 2. SPECIAL DEPOSITS AND REFUNDS.--- (A) COLLECTIONS PERTAINING TO PASSENGERS * * * ABOVE REFERRED TO, SHALL BE HELD ON SPECIAL DEPOSIT; TO BE REFUNDED * * * AS TO SUCH * * * AS ARE SHOWN * * * IN THE MANNER PRESCRIBED IN PARAGRAPH (C) * * * HEREOF, WITHIN 120 DAYS OF THE TIME OF ENTRY, TO HAVE LEFT THE UNITED STATES WITHIN 60 DAYS OF THE TIME OF ENTRY. * * * COLLECTIONS NOT SO REFUNDED SHALL BE ACCOUNTED FOR IN THE REGULAR MANNER AND COVERED INTO THE TREASURY. * * *.

(B) APPLICATIONS FOR REFUND OF HEAD TAX ERRONEOUSLY COLLECTED WILL NOT BE CONSIDERED BY THE BUREAU IF PRESENTED AFTER THE TIME LIMIT HAS EXPIRED.

(C) TRANSPORTATION COMPANIES MAY SECURE REFUND OF HEAD TAX DEPOSITED ON ACCOUNT OF ALIENS IN TRANSIT UPON PROVING DEPARTURE BY FURNISHING, WITHIN THE TIME FIXED HEREIN, TO THE IMMIGRATION OFFICIAL IN CHARGE AT THE PORT OF INITIAL INGRESS, WHERE THE HEAD TAX IS DEPOSITED, A COUPON CONTAINING A "TRANSIT MANIFEST" DETACHED IN REGULAR COURSE OF THE USE THEREOF FROM THE ALIEN'S RAILROAD TICKET, AND SHOWING THAT THE ALIEN PASSED THROUGH AND OUT OF THE UNITED STATES AS REQUIRED IN THIS RULE.

IT IS THUS APPARENT THAT THE INITIAL EXACTION IS TENTATIVE, IN THE NATURE OF A DEPOSIT TO INSURE THE PAYMENT OF THE HEAD TAX SHOULD THE ALIEN NOT DEPART WITHIN THE 60 DAYS AS PROVIDED IN RULE 1, THUS CONSTITUTING HIS SOJOURN IN THE UNITED STATES AS OTHER THAN TEMPORARY WITHIN THE PURVIEW OF THE ACT OF FEBRUARY 15, 1917. IF THE FUNDS THUS SECURED BY DEPOSIT IN THE GENERAL FUND OF THE TREASURY INSTEAD OF IN THE CONTEMPLATED SPECIAL DEPOSIT ACCOUNT ARE SO IMPRESSED AS TO PRECLUDE THEIR USE IN REFUNDMENT, THE ALIEN HAVING FULFILLED THE CONDITIONS WARRANTING SUCH REFUNDMENT, THE EXACTION, FOLLOWING WHAT IS UNDERSTOOD HAS BEEN THE CONSTRUCTION OF THE DEPARTMENT OF LABOR, MAY BE SAID TO BE TANTAMOUNT TO AN ERRONEOUS COLLECTION WITHIN THE INTENT AND MEANING OF THE PROVISIONS OF THE ACT OF FEBRUARY 3, 1905, 33 STAT., 684, SO AS TO WARRANT, UNDER PROPER CIRCUMSTANCES, REFUNDMENT UNDER THE APPLICABLE ANNUAL APPROPRIATION FOR THE DEPARTMENT OF LABOR.

THE ACT OF FEBRUARY 3, 1905, 33 STAT., 684, PROVIDES, IN PART:

PROVIDED, THAT THE COMMISSIONER GENERAL OF IMMIGRATION, WITH THE APPROVAL OF THE SECRETARY OF COMMERCE AND LABOR, SHALL HAVE POWER TO REFUND HEAD TAX HERETOFORE AND HEREAFTER COLLECTED UNDER SECTION ONE OF THE IMMIGRATION ACT APPROVED MARCH THIRD, NINETEEN HUNDRED AND THREE, UPON PRESENTATION OF EVIDENCE SHOWING CONCLUSIVELY THAT SUCH COLLECTION WAS ERRONEOUSLY MADE.

THE ACT OF JUNE 5, 1920, 41 STAT., 935, PROVIDES, IN PART:

FOR ENFORCEMENT OF THE LAWS REGULATING IMMIGRATION OF ALIENS INTO THE UNITED STATES, INCLUDING * * * REFUNDING OF HEAD TAX * * * UPON PRESENTATION OF EVIDENCE SHOWING CONCLUSIVELY THAT COLLECTION WAS MADE THROUGH ERROR OF GOVERNMENT OFFICERS; * * *.

IT APPEARS, AS AFFECTING THE MATTER HERE AT ISSUE, THAT THE ACTION TAKEN WITH RESPECT TO WHAT APPEARS TO HAVE BEEN A PREMATURE DEPOSIT TO THE GENERAL FUND OF THE BALANCES OF THE RETIRING AND ACTING COLLECTORS OF CUSTOMS AT HONOLULU WAS BY REASON OF TREASURY DECISION NO. 38311, OF MARCH 10, 1920, WHEREIN IT WAS PROVIDED:

21. WHEN A COLLECTOR'S ACCOUNT IS CLOSED FOR ANY REASON, AS BY RETIREMENT OR THE GIVING OF A NEW BOND, THE FOLLOWING PROCEDURE MUST BE OBSERVED: ALL MONEYS COLLECTED UP TO THE CLOSE OF BUSINESS ON THE LAST DAY OF THE ACCOUNT MUST BE IMMEDIATELY DEPOSITED TO THE CREDIT OF THE TREASURER, AND IN NO CIRCUMSTANCE MUST MONEYS COLLECTED AFTER THAT DATE BE DEPOSITED TO THE CREDIT OF THE CLOSED ACCOUNT.

22. ACCOUNTS MUST BE PREPARED IMMEDIATELY, AND ALL BALANCES OF DISBURSING FUNDS DUE THE UNITED STATES AT THE CLOSE OF BUSINESS ON THE LAST DAY OF THE ACCOUNT MUST BE DEPOSITED AS SOON AS DETERMINED. IN NO CASE SHALL A CHECK BE DRAWN AGAINST OR PAYMENT MADE OUT OF SUCH FUNDS AFTER THE CLOSE OF BUSINESS ON THE LAST DAY OF THE ACCOUNT.

23. THE ABOVE PROCEDURE IS NECESSARY TO PREVENT CONFUSION OF FUNDS FOR WHICH DIFFERENT OFFICERS OR SURETIES ARE RESPONSIBLE.

IN ANSWER TO YOUR SPECIFIC QUESTION, YOU ARE ADVISED THAT THE AMOUNT, WITH THE APPROVAL OF THE SECRETARY OF LABOR, FOUND DUE BY THE COMMISSIONER GENERAL OF IMMIGRATION, ACCOUNT OF HEAD TAX, MAY NOT BE WITHDRAWN FROM "MISCELLANEOUS RECEIPTS--- HEAD TAX," BUT, UNDER PROPER CIRCUMSTANCES, MAY BE PAID UNDER THE APPLICABLE ANNUAL APPROPRIATION OF THE DEPARTMENT OF LABOR COVERING THE REFUNDMENT OF SUCH TAXES.