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MARKS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. THE ALLOTMENT WAS PAID FROM JUNE 1. THE REQUIRED DEDUCTION FROM YOUR PAY WAS MADE ONLY FOR THE MONTH OF JUNE 1942. YOU ACKNOWLEDGE THE FACT OF THE OVERPAYMENT BUT YOU SEEM TO FEEL THAT COLLECTION THEREOF SHOULD BE WAIVED BECAUSE THE FAILURE TO MAKE PROPER DEDUCTIONS FROM YOUR PAY WAS DUE TO ADMINISTRATIVE ERROR AND BECAUSE OF THE INDICATED HARDSHIP ON YOUR FAMILY THAT WOULD BE INVOLVED IN REPAYMENT. YOU ARE ADVISED THAT THERE IS NO AUTHORITY VESTED IN ANY OFFICIAL OF THE GOVERNMENT TO WAIVE COLLECTION OF THIS INDEBTEDNESS ON THE BASIS OF HARDSHIP OR OTHERWISE. THE COURTS HAVE HELD THAT THERE IS NO EQUITABLE RIGHT TO RETAIN MONEY ERRONEOUSLY PAID BY THE GOVERNMENT.

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B-135519, MAR. 25, 1958

TO MR. EDWARD M. MARKS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1958, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, RELATING TO YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,620, ARISING OUT OF THE NON- DEDUCTION FROM YOUR PAY OF A CLASS E ALLOTMENT PAID TO YOUR WIFE AT THE RATE OF $45 PER MONTH DURING THE PERIOD JULY 1, 1942, THROUGH JUNE 30, 1945. IN YOUR LETTER YOU REQUESTED THAT COLLECTION IN THIS CASE BE WAIVED ON THE GROUND THAT REPAYMENT OF THE AMOUNT DUE WOULD CAUSE UNDUE HARDSHIP OF YOUR FAMILY, IT BEING STATED IN YOUR LETTER THAT YOU HAD A GROSS INCOME OF $8,320 DURING THE YEAR 1957 ON WHICH YOU MAINTAINED YOUR FAMILY CONSISTING OF YOURSELF AND YOUR WIFE AND FOUR CHILDREN.

THE RECORD SHOWS THAT UNDER DATE OF APRIL 21, 1942, YOU AUTHORIZED THE PAYMENT OF A CLASS E ALLOTMENT TO YOUR WIFE AT THE RATE OF $45 PER MONTH, EFFECTIVE JUNE 1, 1942. THE ALLOTMENT WAS PAID FROM JUNE 1, 1942, THROUGH JUNE 30, 1945, HOWEVER, THE REQUIRED DEDUCTION FROM YOUR PAY WAS MADE ONLY FOR THE MONTH OF JUNE 1942, RESULTING IN ERRONEOUS PAYMENTS AMOUNTING TO $1,620. YOU ACKNOWLEDGE THE FACT OF THE OVERPAYMENT BUT YOU SEEM TO FEEL THAT COLLECTION THEREOF SHOULD BE WAIVED BECAUSE THE FAILURE TO MAKE PROPER DEDUCTIONS FROM YOUR PAY WAS DUE TO ADMINISTRATIVE ERROR AND BECAUSE OF THE INDICATED HARDSHIP ON YOUR FAMILY THAT WOULD BE INVOLVED IN REPAYMENT.

YOU ARE ADVISED THAT THERE IS NO AUTHORITY VESTED IN ANY OFFICIAL OF THE GOVERNMENT TO WAIVE COLLECTION OF THIS INDEBTEDNESS ON THE BASIS OF HARDSHIP OR OTHERWISE. RESPECTING THE ADMINISTRATIVE ERROR IN FAILING TO MAKE APPROPRIATE DEDUCTIONS FROM YOUR PAY, IT MAY BE SAID THAT SUCH ERROR HAS NO BEARING ON YOUR LEGAL LIABILITY TO REFUND THE AMOUNT DUE. THE COURTS HAVE HELD THAT THERE IS NO EQUITABLE RIGHT TO RETAIN MONEY ERRONEOUSLY PAID BY THE GOVERNMENT. IN THE CASE OF UNITED STATES V. NORTHWESTERN NATIONAL BANK AND TRUST COMPANY OF MINNEAPOLIS, 35 F.SUPP. 484, 486, THE COURT STATED THAT THE RECIPIENT OF AN ERRONEOUS PAYMENT RESULTING FROM A MISTAKE BY A PUBLIC OFFICIAL, MUST IN EQUITY MAKE RESTITUTION, SINCE RESTITUTION RESULTS IN NO LOSS TO HIM, HE HAVING RECEIVED SOMETHING FOR NOTHING. IN WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, IT WAS HELD THAT PERSONS WHO RECEIVE ERRONEOUS PAYMENTS FROM THE UNITED STATES THROUGH ADMINISTRATIVE ERROR OF ITS OFFICERS, ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. EVEN FINANCIAL HARDSHIP WHICH MIGHT RESULT FROM COLLECTION FROM THE RECIPIENT OR THE FACT THAT THE PAYMENT MAY HAVE BEEN RECEIVED IN GOOD FAITH "CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM AT ALL.' SEE UNITED STATES V. BENTLEY, 107 F.2D 382, 384.

BY LETTER OF FEBRUARY 18, 1958, OUR CLAIMS DIVISION ADVISED YOU THAT ARRANGEMENTS SHOULD BE MADE FOR LIQUIDATION OF THIS INDEBTEDNESS EITHER BY PAYMENT OF A LUMP SUM OR BY MONTHLY PAYMENTS OF AT LEAST $20 EACH, BEGINNING IMMEDIATELY. IN VIEW OF YOUR REPORTED INCOME, IT DOES NOT APPEAR THAT SUCH MONTHLY PAYMENTS ARE BEYOND YOUR ABILITY TO PAY. PLEASE INDICATE WITHIN THIRTY DAYS FROM THE DATE OF THIS LETTER YOUR INTENTIONS RESPECTING PAYMENT OF THE AMOUNT DUE.

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