MAY 15, 1923, 2 COMP. GEN. 757

MAY 15, 1923, 2 COMP. GEN. 757

OFFICIAL POSTS OF DUTY - DEPUTY COLLECTORS OF INTERNAL REVENUE THE STATUS OF A DEPUTY COLLECTOR OF INTERNAL REVENUE WITH RESPECT TO TRAVELING AND SUBSISTENCE EXPENSES SHOULD BE DETERMINED BY THE ACTUAL FACTS OR CIRCUMSTANCES RATHER THAN BY AN ARBITRARY DESIGNATION OF A POST OF DUTY; IF A DETAIL IS OF SUCH PERMANENT CHARACTER AS TO AMOUNT TO A CHANGE OF DUTY STATION, THE DEPUTY COLLECTOR WOULD NOT BE ENTITLED TO REIMBURSEMENT FOR EITHER ACTUAL EXPENSES OF SUBSISTENCE OR A PER DIEM IN LIEU THEREOF WHILE AT THE PLACE DESIGNATED IN THE DETAIL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MAY 15, 1923:

I HAVE YOUR LETTER OF MAY 2, 1923, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

A QUESTION ARISES IN THE BUREAU OF INTERNAL REVENUE AS TO WHETHER OR NOT A DEPUTY COLLECTOR COMMISSIONED IN A SPECIFIC DISTRICT, WHO IS DETAILED TO SPECIAL DUTY AND ASSIGNED TO GENERAL INVESTIGATIONS ELSEWHERE, MAY HAVE HIS DESIGNATED POST OF DUTY AT A LOCALITY OUTSIDE OF THE DISTRICT IN WHICH HE IS COMMISSIONED.

IT APPEARS THAT IN ACCORDANCE WITH THE PROVISIONS CONTAINED IN SECTION 1 (ACT OF MAY 10, 1916, 39 STAT., 87) THE COMMISSIONER OF INTERNAL REVENUE IS AUTHORIZED TO DESIGNATE THE POSTS OF DUTY OF ALL FIELD EMPLOYEES OF THE INTERNAL REVENUE SERVICE ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA, AND THAT SUCH AUTHORITY CONFERS UPON THE COMMISSIONER THE RIGHT TO MAKE SUCH CHANGES IN DESIGNATED POSTS OF DUTY AS MEET WITH THE INTEREST OF THE GOVERNMENT SERVICE.

IT IS THEREFORE RESPECTFULLY REQUESTED THAT A DECISION BE RENDERED AS TO WHETHER OR NOT DEPUTY COLLECTORS COMMISSIONED WITHIN A SPECIFIC DISTRICT MAY HAVE THEIR POSTS OF DUTY DESIGNATED AT POINTS OUTSIDE OF THE DISTRICTS IN WHICH THEY ARE COMMISSIONED.

THE PROVISION OF LAW REFERRED TO IN YOUR LETTER READS:

HEREAFTER THE COMMISSIONER OF INTERNAL REVENUE SHALL DETERMINE AND DESIGNATE THE POSTS OF DUTY OF ALL EMPLOYEES OF THE INTERNAL REVENUE SERVICE ENGAGED IN FIELD WORK OR TRAVELING ON OFFICIAL BUSINESS OUTSIDE OF THE DISTRICT OF COLUMBIA, AND WHEN ORDERED FROM THEIR DESIGNATED POSTS OF DUTY ALL INTERNAL REVENUE AGENTS APPOINTED UNDER SECTION THIRTY-ONE HUNDRED AND FIFTY-TWO, REVISED STATUTES, AS AMENDED, AND COTTON-FUTURES ATTORNEYS, MAY BE GRANTED PER DIEM IN LIEU OF SUBSISTENCE NOT EXCEEDING $4, AND, WHEN ORDERED FROM THEIR DESIGNATED POSTS OF DUTY, INCOME-TAX AGENTS AND INSPECTORS, SPECIAL GAUGERS, AND SPECIAL EMPLOYEES MAY BE GRANTED A PER DIEM IN LIEU OF SUBSISTENCE NOT EXCEEDING $3, THE PER DIEM IN LIEU OF SUBSISTENCE TO BE FIXED BY THE COMMISSIONER OF INTERNAL REVENUE, SUBJECT TO THE APPROVAL OF THE SECRETARY OF THE TREASURY.

AUTHORITY FOR APPOINTMENT "BY AN INSTRUMENT IN WRITING" OF DEPUTY COLLECTORS OF INTERNAL REVENUE IS FOUND IN THE ACT OF FEBRUARY 8, 1875, 18 STAT., 309, AS AMENDED BY THE ACT OF MARCH 1, 1879, 20 STAT., 329, AND SAID DEPUTIES ARE SPECIFICALLY AUTHORIZED BY LAW TO PERFORM CERTAIN OFFICIAL ACTS WITHIN THE DISTRICT FOR WHICH THEY ARE APPOINTED BY THE COLLECTOR. IT WOULD SEEM, THEREFORE, THAT THEY ARE OFFICERS RATHER THAN EMPLOYEES AND THERE WOULD APPEAR TO BE AT LEAST ROOM FOR DOUBT WHETHER THE PROVISION IN THE ACT OF MAY 10, 1916, SUPRA, HAS ANY APPLICATION TO THEM.

THE DETAIL OF DEPUTY COLLECTORS FOR SPECIAL DUTY IN OTHER DISTRICTS IS PROVIDED FOR IN THE ACT OF APRIL 17, 1900, 31 STAT., 107, IN THE FOLLOWING TERMS:

THE COMMISSIONER OF INTERNAL REVENUE IS AUTHORIZED TO DETAIL DEPUTY COLLECTORS OF INTERNAL REVENUE IN ONE DISTRICT FOR SPECIAL DUTY IN OTHER DISTRICTS, AND THE DEPUTY COLLECTORS SO DETAILED SHALL BE PAID BY THE COLLECTOR OF INTERNAL REVENUE AND DISBURSING AGENT FOR THE DISTRICT FOR WHICH THEY ARE APPOINTED AND FOR WHICH THE ALLOWANCE FOR THEIR SALARY AND EXPENSES IS MADE, THE SAME AS IF ALL THEIR SERVICES HAD BEEN PERFORMED AND EXPENSES INCURRED IN THAT DISTRICT.

IT IS ASSUMED THAT THE DESIGNATION OF POST OF DUTY CONTEMPLATED IN YOUR SUBMISSION IS FOR THE PURPOSE OF FIXING THE DEPUTY COLLECTOR'S STATUS WITH RESPECT TO TRAVELING EXPENSES; AND UPON THIS ASSUMPTION I HAVE TO ADVISE THAT THE OFFICER'S STATUS WITH RESPECT TO SUCH EXPENSES SHOULD BE DETERMINED BY THE ACTUAL FACTS OR CIRCUMSTANCES RATHER THAN BY ANY ARBITRARY DESIGNATION OF A POST OF DUTY. IF THE DETAIL IS OF SUCH A PERMANENT CHARACTER AS TO AMOUNT TO A CHANGE OF DUTY STATION RATHER THAN A MERE TEMPORARY ABSENCE FROM HIS REGULAR POST OF DUTY, HE WOULD NOT WHILE ON DUTY AT THE PLACE DESIGNATED IN THE DETAIL BE ENTITLED TO REIMBURSEMENT OF ACTUAL EXPENSES FOR SUBSISTENCE OR A PER DIEM IN LIEU THEREOF.