B-158810, AUGUST 22, 1968, 48 COMP. GEN. 97

B-158810, AUGUST 22, 1968, 48 COMP. GEN. 97

WITNESSES - ADMINISTRATIVE PROCEEDINGS - FEES, MILEAGE, ETC. JUDICIAL PRECEDENT HAVING ESTABLISHED A BASIS FOR THE PAYMENT OF MILEAGE AND FEES TO WITNESSES APPEARING AT ADMINISTRATIVE PROCEEDINGS, PERSONS SUMMONED FOR TESTIMONY PURSUANT TO 26 U.S.C. 7602 TO ENABLE THE INTERNAL REVENUE SERVICE TO DETERMINED THE TAX LIABILITY OF A TAXPAYER MAY BE PAID THE FEES AND MILEAGE PROVIDED BY 5 U.S.C. 503 (B), WHETHER THE WITNESS IS THE PERSON LIABLE FOR THE TAX OR IS A PERSON WHOSE TESTIMONY IS REVELANT OR MATERIAL TO THE INQUIRY INVOLVING THE TAXPAYER. 45 COMP. GEN. 654, OVERRULED.

TO THE COMMISSIONER, INTERNAL REVENUE SERVICE, AUGUST 22, 1968:

LETTER DATED AUGUST 8, 1968 (REFERENCE CC:GL-3532, 3533 AND 3867/A:RCH), FROM THE ASSISTANT COMMISSIONER (COMPLIANCE) REFERS TO OUR DECISION OF APRIL 26, 1966, 45 COMP. GEN. 654, TO YOU. THE ASSISTANT COMMISSIONER NOTES THAT IN OUR DECISION WE STATED THAT UNTIL SUCH TIME AS FURTHER JUDICIAL PRECEDENT REQUIRES A RECONSIDERATION OF OUR POSITION, THAT NEITHER THE PROVISIONS OF 5 U.S.C. 95 (A) (NOW 5 U.S.C. 503 (B) ( OF THEMSELVES NOR THE DECISIONS OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA IN THE CASES OF UNITED STATES V MARTIN LEMLISH, ET AL., NO. 65-850-CIV-CF AND UNITED STATES V WOLFF, NO. 66-99- CIV-EC, MAY BE RELIED UPON AS AUTHORITY FOR THE PAYMENT OF MILEAGE AND WITNESS FEES TO PERSONS SUMMONED FOR TESTIMONY PURSUANT TO THE PROVISIONS OF 26 U.S.C. 7602.

THE ASSISTANT COMMISSIONER ADVISES THAT ON JULY 2, 1968, THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ISSUED ITS OPINION IN THE (CONSOLIDATED) CASES OF LLOYD ROBERTS V UNITED STATES, NO. 25152; ELEANOR ROBERTS V UNITED STATES, NO. 25153; UNITED STATES V GREENMAN, NO. 25296; AND UNITED STATES, ET AL. V SAITOW, ET AL., NO. 25297, 68 USTC PAR. 9450. HE STATES THAT EACH OF THESE CASES WAS ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA; AND THAT FIFTH CIRCUIT AFFIRMED THE JUDGMENTS OF THE DISTRICT COURT WHICH HAD ORDERED WITNESS FEES TO BE PAID IN THE GREENMAN AND SAITOW CASES AND CONCURRENTLY REVERSED THE JUDGMENTS OF THE DISTRICT COURT WHICH HAD DENIED WITNESS FEES AND MILEAGE IN THE ROBERTS CASES. THE ASSISTANT COMMISSIONER POINTS OUT THAT THE COURT OF APPEALS IN ITS OPINION STATED:

WE THINK IT PLAIN THAT THE CONGRESSIONAL PURPOSE IN THE ENACTMENT OF SEC. 503 (5 U.S.C. 503 (B) ( WAS TO PROVIDE FOR WITNESS FEES IN ALL ADMINISTRATIVE PROCEEDINGS OF THE CHARACTER HERE INVOLVED. IT SEEMS EMINENTLY JUST THAT A PERSON COMPELLED TO ANSWER SUCH A SUMMONS SHOULD BE ENTITLED TO SUCH FEES AND WE DECLINE TO BELIEVE THAT CONGRESS MEANT ANYTHING ELSE.

IN VIEW OF THE OPINION OF THE FIFTH CIRCUIT ON THE MATTER, THE ASSISTANT COMMISSIONER REQUESTS THAT OUR POSITION CONCERNING THE PAYMENT OF WITNESS FEES AND MILEAGE, AS SET FORTH IN 45 COMP. GEN. 654, BE RECONSIDERED.

AS INDICATED BY THE ASSISTANT COMMISSIONER, WE HELD IN 45 COMP. GEN. 654 THAT--- QUOTING THE SYLLABUS:

WITNESSES SUMMONED PURSUANT TO 26 U.S.C. 7602 TO GIVE TESTIMONY AT PROCEEDINGS TO ENABLE THE INTERNAL REVENUE SERVICE TO DETERMINE THE TAX LIABILITY OF A TAXPAYER MAY NOT BE PAID THE FEES AND TRAVEL EXPENSES AUTHORIZED BY 5 U.S.C. 95A--- THE ADMINISTRATIVE EXPENSES ACT OF 1946--- FOR WITNESSES SUBPOENAED TO APPEAR AT DEPARTMENTAL HEARINGS, A SECTION 7602 INVESTIGATION NOT CONSTITUTING A HEARING WITHIN THE MEANING OF 5 U.S.C. 95A, NOTWITHSTANDING TWO DISTRICT COURT CASES TO THE CONTRARY, AND THE SECTION 7602 PROCEEDINGS, INFORMAL AND PRIVATE AND HAVING NO PARTIES, BUT DESIGNED TO OBTAIN INFORMATION TO ENABLE THE INTERNAL REVENUE SERVICE TO REACH CONCLUSIONS CONCERNING A TAXPAYER'S LIABILITY THAT HE IS FREE TO CONTEST, NOT MEETING THE CRITERIA OF A HEARING, WHICH INVOLVES PARTIES, TRIES ISSUES OF LAW AND OF FACT, AND TAKES ACTION THAT MAY MATERIALLY AFFECT THE RIGHTS OF THE PARTIES, ABSENT FURTHER JUDICIAL PRECEDENT, 5 U.S.C. 95A MAY NOT BE RELIED UPON AS AUTHORITY FOR THE PAYMENT OF MILEAGE AND WITNESS FEES TO PERSONS SUMMONED FOR TESTIMONY PURSUANT TO 26 U.S.C. 7602.

THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT HELD IN THE CONSOLIDATED CASES CITED ABOVE THAT PERSONS SUMMONED BY THE INTERNAL REVENUE SERVICE PURSUANT TO 26 U.S.C. 7602 TO GIVE TESTIMONY AT PROCEEDINGS AUTHORIZED THEREUNDER (TO ENABLE THE INTERNAL REVENUE SERVICE TO DETERMINE THE TAX LIABILITY OF A TAXPAYER) ARE ENTITLED TO BE PAID THE FEES AND MILEAGE PROVIDED BY 5 U.S.C. 503 (B), WHETHER THE WITNESS SUMMONED IS THE PERSON LIABLE FOR THE TAX (I.E., THE TAXPAYER), OR IS A PERSON WHOSE PRESENCE IS OTHERWISE DESIRED TO GIVE SUCH TESTIMONY AS MAY BE REVELANT OR MATERIAL TO THE INQUIRY INVOLVING THE TAXPAYER.

IN VIEW OF THE OPINION OF THE COURT OF APPEALS OF THE FIFTH CIRCUIT IN THE CONSOLIDATED CASES CITED ABOVE, THIS OFFICE WILL NO LONGER OBJECT TO PERSONS (WITNESSES) SUMMONED BY THE INTERNAL REVENUE SERVICE TO GIVE TESTIMONY PURSUANT TO 26 U.S.C. 7602 BEING PAID THE FEES AND MILEAGE PROVIDED BY 5 U.S.C. 503 (B).

ACCORDINGLY, OUR DECISION OF APRIL 26, 1966, 45 COMP. GEN. 654, NEED NO LONGER BE FOLLOWED.