B-116541, JUL. 21, 1955

B-116541, JUL. 21, 1955

TO COLLINS AUTO. COMPANY (LANCS.) LTD.:

YOUR LETTER OF MAY 18, 1955, REQUESTS RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 28, 1955, WHICH DISALLOWED A PORTION OF YOUR CLAIM UNDER CONTRACT NO. AF 61 (703/-S-30, DATED JUNE 27, 1952.

UNDER THE CONTRACT, THE RADIVEN COMMERCIAL DEPOT (NOW COLLINS AUTO. COMPANY (LANCS.) LTD.), PURCHASED CERTAIN SALVAGED MOTOR VEHICLES FROM THE 59TH AIR DEPOT WING, BURTONWOOD, ENGLAND, FOR THE SUM OF 1,283.0.0 POUNDS STERLING WHICH WAS PAID IN FULL TO THE SALES OFFICER.

PARAGRAPH 5 OF THE SUBJECT CONTRACT SPECIFIED THAT PAYMENT FOR EACH LOT BE MADE IN FULL PRIOR TO REMOVAL OF THE MATERIALS FROM THE STATION AND FURTHER PROVIDED THAT THE SUCCESSFUL BIDDER FURNISH A CERTIFIED CHECK OR POSTAL MONEY ORDER MADE PAYABLE TO THE COMMISSION OF CUSTOMS AND EXCISE IN LONDON COVERING DUTY AND/OR PURCHASE TAX LEVIED ON THE CARS PRIOR TO THEIR REMOVAL. IT APPEARS THAT THE BRITISH GOVERNMENT HELD THAT THE STANDARD IMPORT DUTY OF 33 1/3 PERCENT SHOULD BE CHARGED, PLUS A PURCHASE TAX OF 66 2/3 PERCENT. YOU CONSIDERED THIS ASSESSMENT PROHIBITIVE--- CONTENDING THAT THIS WAS THE DUTY AND TAX IMPOSED ON NEW CARS--- AND ACCORDINGLY, REQUESTED CANCELLATION OF THE CONTRACT AND REFUND OF THE PURCHASE MONEY. SUBSEQUENTLY, UPON YOUR REFUSAL TO PAY THE TAX LEVIED BY THE BRITISH GOVERNMENT AND TO ACCEPT DELIVERY, THE MOTOR VEHICLES INVOLVED WERE SOLD FOR $703 AND THIS AMOUNT WAS ALLOWED TO YOU BY SETTLEMENT DATED APRIL 28, 1955.

YOUR CLAIM FOR REFUND OF THE ENTIRE AMOUNT OF 1,283 POUNDS STERLING DOES NOT APPEAR TO BE BASED ON A MISREPRESENTATION BY ANY OFFICER OF THE UNITED STATES WHEN THE SALE WAS CONSUMMATED NOR ON ANY PROVISION OF THE CONTRACT WHICH ENTITLED YOU TO A REFUND IF YOUR GOVERNMENT LEVIED A HIGHER TAX ON THE MOTOR VEHICLES THAN WHAT YOU CONSIDERED PROPER. EVEN IN YOUR LETTER OF MAY 18, 1955, YOU DO NOT SET FORTH ANY LEGAL REASON AS TO WHY YOU CONSIDER THAT THE UNITED STATES GOVERNMENT SHOULD BE REQUIRED TO REFUND TO YOU THE ENTIRE AMOUNT OF THE PURCHASE PRICE. IN FACT, IT RATHER APPEARS THAT THE SOLE BASIS FOR YOUR CLAIM IS THE FACT THAT THE CONTRACTING OFFICER HAD AGREED TO ,CANCEL THE PURCHASE" AND RETURN THE PURCHASE MONEY TO YOU WHEN YOU FELT THAT THE TAX IMPOSED BY YOUR GOVERNMENT WAS EXCESSIVE.

OUR GOVERNMENT MADE NO REPRESENTATION TO YOU AS TO THE AMOUNT OF BRITISH DUTY AND TAX APPLICABLE TO THE SALE; AS A MATTER OF FACT, IT WAS PLAINLY SET FORTH IN THE CONTRACT THAT THE AMOUNT OF SUCH DUTY AND TAX WAS FOR THE DETERMINATION BY YOUR GOVERNMENT'S COMMISSION OF CUSTOMS AND EXCISE. CONSEQUENTLY, THERE CAN BE NO MUTUAL MISTAKE OF FACT AS TO THE MATTER FOR WHICH THE UNITED STATES GOVERNMENT ASSUMED NO RESPONSIBILITY. YOU MERELY ASSUMED WHAT THE DUTY AND TAX WOULD BE, AND BY SO DOING, YOU ASSUMED THE RISK THAT YOUR JUDGMENT MIGHT BE WRONG.

WITH REGARD TO THE AUTHORITY OF THE CONTRACTING OFFICER TO CANCEL THE SUBJECT CONTRACT, OUR COURTS HAVE HELD THAT AUTHORITY TO MAKE THE ORIGINAL CONTRACT DOES NOT IMPLY AUTHORITY TO CANCEL IT OR TO RELINQUISH RIGHTS THEREBY ACQUIRED. THE RECORD SHOWS THAT YOU BREACHED THE CONTRACT BY YOUR FAILURE TO PAY THE DUTY AND TAXES IMPOSED BY YOUR GOVERNMENT. THE CONTRACT PROVISION WITH REGARD TO THE PAYMENT OF SUCH TAXES IS CLEAR AND UNAMBIGUOUS. IT IS BINDING ON THE PARTIES TO THE CONTRACT AND NO OFFICER OR AGENT OF OUR GOVERNMENT WOULD BE JUSTIFIED IN DISREGARDING IT.

A CAREFUL REVIEW OF THE ENTIRE RECORD IN THIS MATTER FAILS TO ESTABLISH THAT THERE IS ANY LEGAL BASIS FOR REFUNDING TO YOU ANY AMOUNT IN EXCESS OF 780 POUNDS STERLING RECEIVED BY THE UNITED STATES UPON RESALE.