B-174213, DEC 10, 1971, 51 COMP GEN 367

B-174213, DEC 10, 1971, 51 COMP GEN 367

TAXES - STATE - GOVERNMENT IMMUNITY - VEHICLE PARKING TAX THE 25 PERCENT TAX IMPOSED ON RENTS CHARGED FOR OCCUPANCY OF PARKING SPACE IN PARKING STATIONS WHICH WAS PAID BY AN EMPLOYEE FOR PARKING A GOVERNMENT VEHICLE WHILE ON OFFICIAL BUSINESS MAY NOT BE REIMBURSED TO THE EMPLOYEE AS THE INCIDENCE OF THE TAX FALLS DIRECTLY ON THE GOVERNMENT AS LESSEE AND UNDER ITS CONSTITUTIONAL PREROGATIVE, THE GOVERNMENT IS ENTITLED TO RENT OR LEASE PARKING SPACE FREE FROM THE PAYMENT OF THE TAX AND THE EMPLOYEE WAS NOT REQUIRED TO PAY THE TAX. THE MUNICIPAL CODE IMPOSING THE TAX EXEMPTS THE UNITED STATES IF PAYMENT IS MADE BY GOVERNMENT CHECK, BUT IT IS NOT FEASIBLE FOR AN EMPLOYEE OPERATING A GOVERNMENT VEHICLE ON OFFICIAL BUSINESS TO PAY FOR PARKING BY GOVERNMENT CHECK. HOWEVER, SINCE THE GOVERNMENT'S IMMUNITY DOES NOT EXTEND TO AN EMPLOYEE WHEN HE OPERATES HIS OWN VEHICLE ON OFFICIAL BUSINESS, HE MAY BE REIMBURSED THE TAX UNDER 5 U.S.C. 5704 AS PART OF THE PARKING COST.

TO W. P. HELMER, UNITED STATES DEPARTMENT OF AGRICULTURE, DECEMBER 10, 1971:

YOUR LETTER OF AUGUST 31, 1971, WITH ENCLOSURES (YOUR REFERENCE 6540), REQUESTS AN ADVANCE DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF A. R. GRONCKI IN THE AMOUNT OF $0.25. THE VOUCHER COVERS THE 25 PERCENT TAX ON RENTS CHARGED FOR OCCUPANCY OF PARKING SPACE IN PARKING STATIONS IN THE CITY AND COUNTY OF SAN FRANCISCO, WHICH TAX WAS CHARGED TO AND PAID BY MR. GRONCKI ON RENT PAID FOR PARKING A GOVERNMENT- OWNED VEHICLE WHILE ON OFFICIAL BUSINESS.

THE TAX IN QUESTION IS IMPOSED BY ARTICLE 9 OF PART III OF THE SAN FRANCISCO MUNICIPAL CODE. SECTION 602 OF ARTICLE 9 IMPOSES - WITH CERTAIN EXCEPTIONS NOT HERE APPLICABLE - A TAX OF 25 PERCENT OF THE RENT FOR EVERY OCCUPANCY OF PARKING SPACE IN A PARKING STATION IN SAN FRANCISCO CITY AND COUNTY. SECTION 603 STATES THAT EVERY OCCUPANT OCCUPYING PARKING SPACE SHALL BE LIABLE FOR PAYMENT OF THE TAX IMPOSED ON THE RENT FOR THE OCCUPANCY OF THE PARKING SPACE. SECTION 603 ALSO PROVIDES THAT THE TAX LIABILITY IS NOT EXTINGUISHED UNTIL THE TAX HAS BEEN PAID BY THE OCCUPANT TO THE CITY AND COUNTY, EXCEPT THAT A RECEIPT FROM AN AUTHORIZED OPERATOR PURSUANT TO SECTION 604 OF ARTICLE 9 SHALL BE SUFFICIENT TO RELIEVE THE OCCUPANT FROM FURTHER LIABILITY FOR THE TAX TO WHICH THE RECEIPT REFERS. SECTION 601(A), IN EFFECT, SPECIFICALLY EXEMPTS THE UNITED STATES - AMONG OTHERS - FROM PAYMENT OF THE TAX.

YOU STATE THAT IN ADMINISTERING THE TAX IN QUESTION THE CITY GRANTS AN EXEMPTION TO THE GOVERNMENT ONLY WHEN THE PAYMENT FOR PARKING IS MADE BY GOVERNMENT CHECK. YOU FURTHER STATE THAT WHEN GOVERNMENT EMPLOYEES OPERATE THEIR PERSONAL OR GOVERNMENT-OWNED VEHICLES ON OFFICIAL BUSINESS, IT IS NOT FEASIBLE TO PAY FOR PARKING BY GOVERNMENT CHECK.

CONCERNING THE PAYMENT OF STATE OR LOCAL SALES TAXES GENERALLY, OUR OFFICE HAS CONSISTENTLY HELD THAT THE QUESTION OF WHETHER THE UNITED STATES IS REQUIRED TO PAY FOR AN ITEM PROCURED OR LEASED IN A STATE AT A PRICE INCLUSIVE OF SUCH TAX RESTS UPON A DETERMINATION OF WHETHER THE INCIDENCE OF THE TAX IS ON THE VENDOR (OR LESSOR) OR ON THE VENDEE (OR LESSEE). WHERE THE INCIDENCE OF THE TAX IS ON THE VENDOR (OR LESSOR), THE UNITED STATES HAS NO RIGHT - APART FROM THAT GIVEN IT BY THE TAXING STATUTE OR REGULATIONS PROMULGATED THEREUNDER - TO PURCHASE OR LEASE ITEMS WITHIN THE TERRITORIAL JURISDICTION OF THE TAXING JURISDICTION ON A TAX- FREE BASIS. ON THE OTHER HAND, WHERE THE INCIDENCE OF THE TAX IS ON THE VENDEE (OR LESSEE), THE UNITED STATES IN PURCHASING OR LEASING ITEMS FOR OFFICIAL USE IS ENTITLED UNDER ITS CONSTITUTIONAL PREROGATIVE TO MAKE PURCHASES OR TO LEASE FREE FROM SUCH SALES TAXES. SEE FOR EXAMPLE, 49 COMP. GEN. 204 (1969).

ALSO, WE HAVE HELD, IN EFFECT, THAT A PARKING TAX IS NOT APPLICABLE TO VEHICLES OWNED BY THE FEDERAL GOVERNMENT. SEE 38 COMP. GEN. 258 (1958); 34 ID. 417 (1955); 26 ID. 397 (1946); 18 ID. 151 (1938). THESE DECISIONS WERE BASED ON THE RATIONALE SET FORTH ABOVE. CF. 46 COMP. GEN. 624 (1967). WE HAVE FURTHER HELD THAT SINCE A PARKING TAX CANNOT LEGALLY BE IMPOSED AGAINST THE PRINCIPAL - THE FEDERAL GOVERNMENT - IT LIKEWISE CANNOT BE IMPOSED UPON THE AGENT - THE EMPLOYEE DRIVING THE GOVERNMENT VEHICLE. SEE B-136911, JUNE 5, 1961; AND 41 COMP. GEN. 328 (1961).

IT IS CLEAR FROM THE ABOVE CITED SECTIONS OF THE SAN FRANCISCO MUNICIPAL CODE THAT THE TAX HERE INVOLVED IS IMPOSED ON THE RENT PAID FOR THE OCCUPANCY, I.E., THE USE OR POSSESSION, OF PARKING SPACE IN A PARKING STATION IN THE COUNTY OR CITY OF SAN FRANCISCO. SINCE THE TAX IS ON THE OCCUPANCY OF THE PARKING SPACE, IT IS CLEAR WHEN THE SPACE IS RENTED OR LEASED FOR USE OF A GOVERNMENT-OWNED VEHICLE ON OFFICIAL BUSINESS, THE INCIDENCE OF THE TAX FALLS DIRECTLY ON THE GOVERNMENT. HENCE, WE MUST CONCLUDE THAT IN RENTING OR LEASING PARKING SPACE FOR A GOVERNMENT-OWNED VEHICLE BEING USED ON OFFICIAL BUSINESS, THE UNITED STATES IS ENTITLED UNDER ITS CONSTITUTIONAL PREROGATIVE TO RENT OR LEASE SUCH SPACE FREE FROM THE PAYMENT OF THIS TAX AND TO RECOVER ANY AMOUNT OF SUCH TAX WHICH MAY HAVE BEEN PAID BY IT WHETHER THE PAYMENT FOR THE PARKING IS MADE BY GOVERNMENT CHECK OR OTHERWISE. FURTHER, FOR THE REASON STATED ABOVE, A GOVERNMENT EMPLOYEE DRIVING A GOVERNMENT OWNED VEHICLE ON OFFICIAL BUSINESS CANNOT BE REQUIRED TO PAY A TAX IMPOSED ON THE RENT PAID BY THE UNITED STATES FOR THE OCCUPANCY OF A PARKING SPACE BY A GOVERNMENT-OWNED VEHICLE. ALTHOUGH NOT CONTROLLING HERE, WE MIGHT POINT OUT THAT TO HOLD OTHERWISE WOULD MAKE ALMOST MEANINGLESS THE PROVISION OF SECTION 601(A) OF ARTICLE 9, WHICH, IN EFFECT, SPECIFICALLY EXCEPTS THE UNITED STATES FROM THE LIABILITY OF PAYING SUCH TAX.

OF COURSE THE IMMUNITY FROM PARKING TAXES OR TAXES ON PARKING RENTALS - INCIDENT TO THE PARKING OF GOVERNMENT-OWNED VEHICLES - WHICH MAY ATTACH TO THE UNITED STATES, DOES NOT EXTEND TO A GOVERNMENT EMPLOYEE OPERATING HIS PERSONALLY OWNED VEHICLE ON OFFICIAL BUSINESS. THERE IS, HOWEVER, A SPECIFIC STATUTE WHICH AUTHORIZES REIMBURSEMENT OF PARKING FEES TO FEDERAL EMPLOYEES INCIDENT TO THE USE OF PRIVATELY OWNED MOTOR VEHICLES ON OFFICIAL BUSINESS, NAMELY, SECTION 4 OF THE TRAVEL EXPENSE ACT OF 1949, AS AMENDED, 5 U.S.C. 5704. INSOFAR AS AN EMPLOYEE USING A PRIVATELY OWNED MOTOR VEHICLE IS CONCERNED, IF HE IS REQUIRED TO PAY A TAX ON THE AMOUNT OF THE PARKING FEE, THE TAX WOULD BE PART OF THE PARKING COST AND HE MAY BE REIMBURSED SUCH COST UNDER THE AUTHORITY OF 5 U.S.C. 5704, IF OTHERWISE PROPER. SEE 41 COMP. GEN. 328; AND 44 COMP. GEN. 578 (1965).

ACCORDINGLY, SINCE THE INSTANT VOUCHER IN FAVOR OF A. R. GRONCKI COVERS THE TAX PAID ON THE OCCUPANCY OF PARKING SPACE FOR A GOVERNMENT OWNED VEHICLE BEING USED ON OFFICIAL BUSINESS, IT MAY NOT BE CERTIFIED FOR PAYMENT AND HENCE, SUCH VOUCHER WILL BE RETAINED IN OUR FILES.