B-7991, MARCH 18, 1940, 19 COMP. GEN. 788

B-7991, MARCH 18, 1940, 19 COMP. GEN. 788

REFUNDS OF ERRONEOUS COLLECTIONS - FOREIGN SERVICE STATE DEPARTMENT FOREIGN SERVICE DISBURSING OFFICERS MAY CONTINUE TO MAKE REFUNDS OF ERRONEOUS COLLECTIONS OF FEES IN FOREIGN COUNTRIES FROM COLLECTIONS ON HAND, NOTWITHSTANDING THE ERRONEOUS COLLECTIONS HAVE BEEN COVERED INTO THE TREASURY AS " MISCELLANEOUS RECEIPTS.' 17 COMP. GEN. 859, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, MARCH 18, 1940:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 12, 1939, AS FOLLOWS:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 30, 1939, REFERENCE A.B. 3.5 G.F., WHICH HAS BEEN RECEIVED FROM THE GENERAL ACCOUNTING OFFICE, ACCOUNTING AND BOOKKEEPING DIVISION, CITING 17 COMP. GEN. 859 REGARDING THE PROPER METHOD OF REFUNDING FOREIGN SERVICE FEES AND DIRECTING ATTENTION TO THE PRACTICE OF DISBURSING OFFICERS FOR THE STATE DEPARTMENT IN MAKING REFUNDS OF FEES ERRONEOUSLY COLLECTED AND COVERED INTO THE TREASURY FROM CURRENT FEES.

THIS PRACTICE HAS BEEN FOLLOWED BY THIS DEPARTMENT FOR A LONG TIME, AND IT WAS BELIEVED TO HAVE THE CONCURRENCE OF YOUR OFFICE IN VIEW OF THE APPROVAL UNDER DATE OF JANUARY 18, 1939, REFERENCE A-44014, OF THE PRESENT FOREIGN SERVICE REGULATIONS, WHICH INCLUDED NOTE 5 TO SECTION V-18 AS FOLLOWS:

"NOTE 5. REFUNDS MADE FROM FEES ON HAND ONLY. AUTHORIZED REFUNDS OF FEES CAN BE MADE FROM FEES ON HAND ONLY. REFUNDS SHALL BE MADE IN UNITED STATES CURRENCY, OR ITS EQUIVALENT IN FOREIGN CURRENCY, AT THE BANK'S SELLING RATE OF EXCHANGE PREVAILING ON THE DATE OF THE REFUND. THE PROCEEDS OF DRAFTS DRAWN FOR EXPENSES SHALL NOT BE USED FOR REFUNDING FEES.'

THE PROCEDURE WHICH HAS BEEN PURSUED HAS THE FOLLOWING DEFINITE ADVANTAGES:

1. IT ELIMINATES THE NECESSITY FOR MUCH CORRESPONDENCE BETWEEN THE OFFICES ABROAD, THE DEPARTMENT, AND THE GENERAL ACCOUNTING OFFICE;

2. IT MAKES IT POSSIBLE TO EFFECT PAYMENT THROUGH THE OFFICE ABROAD DIRECT TO THE CLAIMANT PRIOR TO HIS WHEREABOUTS BECOMING UNKNOWN;

3. THE PAYMENT DIRECT TO THE CLAIMANT IN MANY INSTANCES MIGHT PRECLUDE THE POSSIBILITY OF OBJECTION ON THE PART OF A FOREIGN GOVERNMENT INCIDENT TO SEVERE EXCHANGE RESTRICTIONS WHICH ARE FROM TIME TO TIME IMPOSED BY CERTAIN FOREIGN GOVERNMENTS;

4. IT EXPEDITES PAYMENT OF REFUNDS ESPECIALLY IN THOSE INSTANCES WHERE IT BECOMES NECESSARY FOR THE DEPARTMENT TO TAKE ACTION TO CANCEL A VISA OR SERVICE, AND IN THE EVENT OF SUCH ACTION THE DEPARTMENT SHOULD BE IN A POSITION TO AUTHORIZE IMMEDIATE REFUND IN ORDER TO AVOID CONTROVERSY AND THE POSSIBILITY OF BEING PLACED IN A POSITION OF EMBARRASSMENT, AS A LARGE PERCENTAGE OF THE CLAIMANTS ARE NOT AMERICAN CITIZENS AND, FURTHERMORE, MIGHT BE TRANSIENTS.

SINCE THE PRESENT PRACTICE AFFORDS THE DEPARTMENT AN ADMINISTRATIVE PROCEDURE WHICH IT WOULD PREFER, IT IS HOPED THAT ITS CONTINUANCE MAY HAVE THE APPROVAL OF YOUR OFFICE.

IF NOTE 5 TO SECTION V-18 OF THE FOREIGN SERVICE REGULATIONS IS TAKEN AND CONSIDERED AS APPLYING ONLY TO FEES COLLECTED BUT NOT AS YET COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, THERE WOULD BE NO BASIS FOR OBJECTING TO ITS PROVISIONS. HOWEVER, AFTER THE FEES HAVE BEEN COVERED INTO THE TREASURY AND A REFUND OF THE SAME IS PROPOSED A DIFFERENT SITUATION IS PRESENTED. THE GENERAL RULE IN CONNECTION WITH SUCH CASES, IN LINE WITH THE PROVISIONS OF SECTION 18 OF THE PERMANENT APPROPRIATION REPEAL ACT OF 1934, 48 STAT. 1231, IS AS SET FORTH IN THE DECISION 17 COMP. GEN. 859. IN OTHER WORDS, IN VIEW OF THE PROVISIONS OF SECTION 3617, REVISED STATUTES, REQUIRING THAT THE GROSS AMOUNT OF ALL MONEYS RECEIVED FOR THE USE OF THE UNITED STATES SHALL BE COVERED INTO THE TREASURY WITHOUT DEDUCTION OR ABATEMENT, THE USE OF COLLECTIONS ON HAND FOR REFUNDING PREVIOUS COLLECTIONS THERETOFORE COVERED INTO THE TREASURY IS NOT GENERALLY AUTHORIZED.

IN THIS CONNECTION ATTENTION IS INVITED TO A DECISION OF THE FORMER COMPTROLLER OF THE TREASURY IN 1912, 18 COMP. DEC. 980, IN WHICH IT WAS SAID, IN PART:

IF A COLLECTION MADE BY A DISBURSING OFFICER IS FOUND TO BE ERRONEOUS, IN WHOLE OR IN PART, BEFORE THE SAME IS TAKEN UP IN HIS ACCOUNTS AS MISCELLANEOUS RECEIPTS, HE MAY PROPERLY REFUND THE AMOUNT ERRONEOUSLY COLLECTED. IN WHICH EVENT ONLY THE AMOUNT PROPERLY COLLECTED SHOULD BE REPORTED IN THE ACCOUNT AND DEPOSITED AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS. WHERE, HOWEVER, THE AMOUNT ERRONEOUSLY COLLECTED HAS BEEN ACCOUNTED FOR IN THE DISBURSING OFFICER'S ACCOUNT AS MISCELLANEOUS RECEIPTS, HE IS WITHOUT AUTHORITY THEREAFTER TO MAKE REFUNDMENT ON ACCOUNT OF SUCH ERRONEOUS COLLECTIONS FROM THE PROCEEDS OF OTHER COLLECTIONS NOT SO ACCOUNTED FOR, DEPOSITED, AND COVERED INTO THE TREASURY.

AS STATED IN YOUR LETTER THE GENERAL RULE HEREIN REFERRED TO HAS NOT BEEN APPLIED WITH RESPECT TO REFUNDS OF FEES UNDER THE FOREIGN SERVICE- - MAINLY FOR THE SEVERAL REASONS SET FORTH IN YOUR LETTER. AND, SINCE IT APPEARS FROM YOUR LETTER THAT THE CONTINUANCE OF THE LONG EXISTING PRACTICE OF EFFECTING AUTHORIZED REFUNDS IN FOREIGN COUNTRIES IS NOT ONLY DESIRABLE BUT ESSENTIAL FROM AN ADMINISTRATIVE STANDPOINT, PARTICULARLY AT THIS TIME OF UNSETTLED CONDITIONS ABROAD, THIS OFFICE WILL NOT OBJECT TO THE CONTINUANCE OF SUCH PRACTICE WITH RESPECT TO THE REFUNDS OF SUCH ERRONEOUS COLLECTIONS UNDER THE FOREIGN SERVICE.