B-148080, MARCH 8, 1962, 41 COMP. GEN. 583

B-148080, MARCH 8, 1962, 41 COMP. GEN. 583

COURTS - COSTS - GOVERNMENT LIABILITY - ABSENCE OF STATUTORY AUTHORITY WHERE COURT COSTS ASSESSED AGAINST THE UNITED STATES IN TAX LIEN ENFORCEMENT ACTIONS DECIDED ADVERSELY TO THE GOVERNMENT BY STATE AND FEDERAL COURTS THAT ARE WITHOUT AUTHORITY TO ALLOW SUCH COSTS UNDER 28 U.S.C. 2412 (A), IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY MAKING THE GOVERNMENT LIABLE FOR COSTS, HAVE BECOME A PART OF THE JUDGMENTS AND THE JUDGMENTS ARE FINAL, THE UNITED STATES IS REQUIRED TO PAY THE JUDGMENTS, INCLUDING THE COSTS, AND THE PERMANENT APPROPRIATION FOR PAYMENT OF JUDGMENTS ESTABLISHED UNDER 21 U.S.C. 724A IS AVAILABLE FOR PAYMENT, UPON SETTLEMENTS ISSUED BY THE GENERAL ACCOUNTING OFFICE, PROVIDED THAT IN CONNECTION WITH THE STATE COURT JUDGMENT A CERTIFICATION AS REQUIRED BY 28 U.S.C. 2414 IS FURNISHED BY THE ATTORNEY GENERAL.

TO THE ATTORNEY GENERAL, MARCH 8, 1962:

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, IN LETTER DATED JANUARY 26, 1962, REFERS TO THE BELOW-ENTITLED ACTIONS:

WASHINGTON SQUARE SLUM CLEARANCE CASES, TAILORED CONTOUR, INC., BERNARD W. COBLENTZ AND NEW YORK UNIVERSITY--- SUPREME COURT NEW YORK CO., NEW YORK (5 N.Y.2D 300, 157 N.E.2D 587) IRS REF: CC: NYC RC-CA WSS: NYC-734, 545 CC: CI

UNITED STATES V. JOHN C. GLENN, ADMR. ESTATE OF WILLIAM MCFALL, ET AL., CIVIL NO. 100-159, DC SD NY IRS REF: CC: NYC: RC-CA CMD: NYC 732,065 CC: C1 486454

THE FIRST ACTION IS A CONDEMNATION PROCEEDING IN WHICH THE GOVERNMENT INTERVENED TO ENFORCE ITS TAX LIEN, AND THE SECOND IS A SUIT BY THE GOVERNMENT TO FORECLOSE A FEDERAL TAX LIEN. BOTH ACTIONS WERE DECIDED ADVERSELY TO THE GOVERNMENT'S POSITION. THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL STATES THAT IN THEIR PRESENT POSTURE BOTH ACTIONS RAISE THE QUESTION AS TO WHETHER COSTS ALLOWED BY THE APPELLATE DIVISION OF THE SUPREME COURT OF THE STATE OF NEW YORK AND THE COURT OF APPEALS OF THAT STATE IN THE WASHINGTON SQUARE SLUM CLEARANCE CASE AND COSTS TAXED BY THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN THE GLENN CASE ARE PROPERLY PAYABLE BY THE UNITED STATES GOVERNMENT.

THE LETTER STATES THAT THE DEPARTMENT HAS EXAMINED INTO THE MATTER AND CAN FIND NO AUTHORITY FOR THE GOVERNMENT TO PAY THE COSTS INVOLVED AND MAKES REFERENCE TO 28 U.S.C. 2412 (A). THE INTERNAL REVENUE SERVICE AGREES THAT COSTS CANNOT LEGALLY BE ASSERTED AGAINST THE GOVERNMENT IN THESE CASES. THE SERVICE ALSO ADVISED THAT IT IS NOT AWARE OF ANY APPROPRIATION TO THE TREASURY DEPARTMENT OUT OF WHICH SUCH COSTS CAN BE PAID, ASSUMING THEY ARE LEGALLY ASSERTABLE.

THE LETTER STATES THAT IN BOTH OF THE ABOVE-ENTITLED CASES, THE IMPROPER ALLOWANCE OF COSTS SHOULD HAVE BEEN BROUGHT TO THE ATTENTION OF THE COURT BY THE GOVERNMENT. REFERENCE IS MADE TO 12 COMP. GEN. 474, IN WHICH, THE LETTER STATES, WE ALLOWED ITEMS OF COSTS NOT PROPERLY COLLECTIBLE FROM THE UNITED STATES, AND REQUEST IS MADE THAT WE RENDER A FORMAL OPINION AS TO WHETHER THE COSTS INCURRED IN THE ABOVE-ENTITLED CASES CONSTITUTE A CLAIM WHICH THE GENERAL ACCOUNTING OFFICE HAS AUTHORITY TO ALLOW.

ALSO, ADVICE IS REQUESTED AS TO:

(1) WHETHER THERE IS ANY APPROPRIATION OUT OF WHICH SUCH COSTS MAY BE PAID BY EITHER THE TREASURY OR THE JUSTICE DEPARTMENTS

(2) IF NOT, WHETHER IT WOULD BE APPROPRIATE TO CERTIFY THESE COSTS TO THE CONGRESS OF THE UNITED STATES FOR PAYMENT.

OUR DECISION OF DECEMBER 22, 1932, 12 COMP. GEN. 474, DID NOT CONCERN A JUDGMENT FOR OR AGAINST THE UNITED STATES, BUT RATHER A JUDGMENT AGAINST THE ESTATE OF A FORMER COLLECTOR OF INTERNAL REVENUE. HENCE, WHAT WAS SAID THEREIN WOULD HAVE NO APPLICATION TO THE INSTANT CASE. SEE, IN THIS CONNECTION, LICHTER FOUNDATION, INC. V. WELCH, 269 F.2D 142.

AS INDICATED IN YOUR DEPARTMENT'S LETTER, IN VIEW OF THE PROVISIONS OF 28 U.S.C. 2412 (A), THE RESPECTIVE COURTS IN THE ABOVE TWO CASES WERE WITHOUT AUTHORITY TO ALLOW COSTS AGAINST THE UNITED STATES. SEE EWING V. GARDNER, 341 U.S. 321. HOWEVER, IN THE INSTANT CASES THE COURT DID ALLOW SUCH COSTS AND APPARENTLY THE COSTS ALLOWED BECAME PART OF THE JUDGMENTS. UNDERSTAND THE JUDGMENTS HAVE BECOME FINAL AGAINST THE UNITED STATES.

THE PRINCIPLE INVOLVED HERE APPEARS TO HAVE BEEN SQUARELY DECIDED IN HIGGINSON V. SCHOENEMAN, 190 F.2D 32. IN THAT CASE THE COURT HELD (QUOTING FROM SYLLABUS 9):

WHERE COURT OF CLAIMS' JUDGMENT FOR REFUND OF INCOME TAXES PLAINLY AWARDED INTEREST FROM DATE SET FORTH AT 6 PERCENT PER ANNUM ALTHOUGH STATUTE PROHIBITED PAYMENT OF INTEREST DURING TIME CLAIMANT WAS RESIDENT OF ANOTHER COUNTRY BUT JUDGMENT HAD BECOME FINAL AND HENCE COULD NOT BE MODIFIED, DUTY OF GOVERNMENT OFFICIALS TO PAY JUDGMENT WAS PURELY MINISTERIAL AND MANDATORY ORDER REQUIRING PAYMENT WOULD ISSUE.

SECTION 724A, TITLE 31, U.S.C. APPROPRIATES FUNDS FOR THE PAYMENT OF FINAL JUDGMENTS (NOT IN EXCESS OF $100,000), NOT OTHERWISE PROVIDED FOR, AS CERTIFIED BY THE COMPTROLLER GENERAL, TOGETHER WITH SUCH INTERESTS AND COSTS AS MAY BE SPECIFIED IN SUCH JUDGMENTS OR ARE OTHERWISE AUTHORIZED BY LAW.

SECTION 2414, TITLE 28, U.S.C. PROVIDES, IN PERTINENT PART, AS FOLLOWS:

PAYMENT OF FINAL JUDGMENTS RENDERED BY A DISTRICT COURT AGAINST THE UNITED STATES SHALL BE MADE ON SETTLEMENTS BY THE GENERAL ACCOUNTING OFFICE. PAYMENT OF FINAL JUDGMENTS RENDERED BY A STATE OR FOREIGN COURT OR TRIBUNAL AGAINST THE UNITED STATES, OR AGAINST ITS AGENCIES OR OFFICIALS UPON OBLIGATIONS OR LIABILITIES OF THE UNITED STATES, SHALL BE MADE ON SETTLEMENTS BY THE GENERAL ACCOUNTING OFFICE AFTER CERTIFICATION BY THE ATTORNEY GENERAL THAT IT IS IN THE INTEREST OF THE UNITED STATES TO PAY THE SAME.

WHENEVER THE ATTORNEY GENERAL DETERMINES THAT NO APPEAL SHALL BE TAKEN FROM A JUDGMENT OR THAT NO FURTHER REVIEW WILL BE SOUGHT FROM A DECISION AFFIRMING THE SAME, HE SHALL SO CERTIFY AND THE JUDGMENT SHALL BE DEEMED FINAL.

IN VIEW OF THE CIRCUMSTANCES SET FORTH ABOVE AND THE ABOVE-REFERRED TO PROVISIONS OF LAW, IF YOU ADVISE US THAT THE JUDGMENTS IN BOTH CASES HAVE BECOME FINAL AGAINST THE UNITED STATES AND FURNISH THE CERTIFICATION REQUIRED BY 28 U.S.C. 2414 IN CONNECTION WITH THE STATE COURT JUDGMENT, THE GENERAL ACCOUNTING OFFICE WILL PAY THE COSTS IN QUESTION.