B-87912, AUGUST 16, 1949, 29 COMP. GEN. 78

B-87912, AUGUST 16, 1949, 29 COMP. GEN. 78

REFUNDS OF COLLECTIONS COVERED INTO TREASURY AS MISCELLANEOUS RECEIPTS REFUND OF THE PROCEEDS OF A TREASURY BOND WHICH WAS DEPOSITED AS COLLATERAL SECURITY ON AN ALIEN DELIVERY BOND AND COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS UPON BREACH OF THE DELIVERY BOND MAY BE MADE TO THE SURETY WHO SUBSEQUENTLY BECAME ENTITLED TO RETURN OF SUCH PROCEEDS FROM THE APPROPRIATION ITEM "OTHER ITEMS PROPERLY RETURNABLE" CONTAINED IN THE APPROPRIATION " SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE, 1949," RATHER THAN FROM THE APPROPRIATION " REFUND OF MONEYS ERRONEOUSLY RECEIVED AND COVERED" WHICH IS CHARGEABLE ONLY IF THE REFUND IS NOT PROPERLY CHARGEABLE TO ANY OTHER APPROPRIATION.

COMPTROLLER GENERAL WARREN TO C. E. WALLER, DEPARTMENT OF JUSTICE, AUGUST 16, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JULY 14, 1949, FILE NO. A 2610295 RAU, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF PHILIP MANDELBAUM, 17 ACADEMY STREET, NEWARK 2, N.J., IN THE AMOUNT OF $500, REPRESENTING THE PROCEEDS OF UNITED STATES TREASURY BOND NO. 40343-C, SERIES 1967-72, WHICH WAS DEPOSITED AS COLLATERAL SECURITY ON DELIVERY BOND IN BEHALF OF ALIEN ANTONIO RODRIGUES COELHO OR FRANK DE AMASIN.

FROM THE FACTS OF RECORD IT APPEARS THAT ONE OF THE CONDITIONS OF THE DELIVERY BOND WAS TO GUARANTEE THE SURRENDER OF THE ALIEN UPON FORMAL DEMAND FOR DEPORTATION, WHICH DEMAND WAS MADE ON JUNE 28, 1948. THE ALIEN WAS NOT SURRENDERED ON THE DATE DESIGNATED, AND AS NO REASON WAS ADVANCED BY THE SURETY AT THAT TIME FOR FAILURE TO DO SO, THE DELIVERY BOND WAS DECLARED BREACHED AS OF JULY 29, 1948, BY ORDER DATED SEPTEMBER 8, 1948, AND THE PROCEEDS OF THE TREASURY BOND WERE COVERED INTO THE UNITED STATES TREASURY AS MISCELLANEOUS RECEIPTS FOR CREDIT TO THE RECEIPT ACCOUNT "153,822, FORFEITURES, BONDS OF ALIENS.' SUBSEQUENT TO THE BREACH ORDER AN ATTORNEY FOR THE SURETY PRESENTED NEW EVIDENCE AND BASED THEREON THE BREACH ORDER OF SEPTEMBER 8, 1948, WAS WITHDRAWN AND THE DELIVERY BOND CANCELED BY ORDER OF MAY 6, 1949, THEREBY ENTITLING THE SURETY TO RETURN OF THE PROCEEDS OF THE SAID UNITED STATES TREASURY BOND.

YOUR DOUBT AS TO THE PROPRIETY OF CERTIFYING THE SAID VOUCHER FOR PAYMENT ARISES OUT OF WHETHER THE APPROPRIATION "1591217 SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE, 1949," IS AVAILABLE FOR PAYMENT OF THE REFUND VOUCHER, IN VIEW OF DECISION OF APRIL 20, 1938, 17 COMP. GEN. 859.

SECTION 18 (A) OF THE PERMANENT APPROPRIATION REPEAL ACT, 1934, 48 STAT. 1231, PROVIDES, AMONG OTHER THINGS, FOR THE ESTABLISHMENT ON THE BOOKS OF THE GOVERNMENT, EFFECTIVE JULY 1, 1935, OF AN ACCOUNT," REFUND OF MONEYS ERRONEOUSLY RECEIVED AND COVERED," FOR THE REFUND OF COLLECTIONS ERRONEOUSLY RECEIVED AND COVERED WHICH ARE NOT PROPERLY CHARGEABLE TO ANY OTHER APPROPRIATION. IN THE ABOVE CITED DECISION, THE GENERAL RULE IN SUCH REFUND CASES WAS STATED SUBSTANTIALLY AS OLLOWS:

WHEN THE AMOUNT SUBJECT TO REFUND CAN BE TRACED AS HAVING BEEN ERRONEOUSLY CREDITED TO AN APPROPRIATION ACCOUNT THE REFUND CLAIM IS CHARGEABLE TO SAID APPROPRIATION WHETHER IT BE LAPSED OR CURRENT, OR REIMBURSABLE OR NONREIMBURSABLE; AND IT IS ONLY WHEN COLLECTIONS ERRONEOUSLY COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS ARE INVOLVED AND THE REFUND IS NOT PROPERLY CHARGEABLE TO ANY OTHER APPROPRIATION THAT THERE IS FOR CONSIDERATION CHARGING THE APPROPRIATION " REFUND OF MONEYS ERRONEOUSLY RECEIVED AND COVERED.'

THE APPROPRIATION " SALARIES AND EXPENSES, IMMIGRATION AND NATURALIZATION SERVICE, 1949," ACT OF JUNE 3, 1948, 62 STAT. 305, 319, PROVIDES IN PART AS FOLLOWS:

* * * REFUNDS OF HEAD TAX, MAINTENANCE BILLS, IMMIGRATION FINES, AND OTHER ITEMS PROPERLY RETURNABLE, EXCEPT DEPOSITS OF ALIENS WHO BECOME PUBLIC CHARGES AND DEPOSITS TO SECURE PAYMENT OF FINES AND PASSAGE MONEY;

WHILE THE ABOVE APPROPRIATION DOES NOT SPECIFICALLY PROVIDE FOR REFUNDS IN CONNECTION WITH BREACHED DELIVERY BONDS, IT APPEARS THAT THE REFUND HERE INVOLVED WOULD PROPERLY FALL INTO THE CATEGORY OF "OTHER ITEMS PROPERLY RETURNABLE" AS THOSE WORDS ARE USED IN THE APPROPRIATION. ACCORDINGLY, THE SAID VOUCHER MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.