B-62974, FEBRUARY 5, 1947, 26 COMP. GEN. 566

B-62974, FEBRUARY 5, 1947, 26 COMP. GEN. 566

SUNDAYS AND HOLIDAYS - COMPENSATION IN TEMPORARY POSITION FOR HOLIDAY WITHIN LUMP-SUM LEAVE PAYMENT PERIOD UPON SEPARATION FROM PRIOR PERMANENT POSITION EVEN THOUGH THANKSGIVING DAY, 1946, HAD BEEN INCLUDED IN THE PERIOD USED AS A MEASURE TO COMPUTE AN EMPLOYEE'S LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, FOR ACCRUED LEAVE UPON SEPARATION FROM A PERMANENT POSITION, THE EMPLOYEE MAY BE PAID COMPENSATION FOR SUCH HOLIDAY IN CONNECTION WITH A SUBSEQUENT EMPLOYMENT IN A TEMPORARY POSITION TO WHICH APPOINTED PRIOR TO THE HOLIDAY WITHOUT BEING REQUIRED TO REFUND ANY PART OF THE LUMP SUM.

COMPTROLLER GENERAL WARREN TO C. STEPHEN DUVALL, JR., DEPARTMENT OF LABOR, FEBRUARY 5, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1947, AS FOLLOWS:

THERE IS ATTACHED PAY ROLL VOUCHER NUMBER 54 IN THE AMOUNT OF $22.71 COVERING A PROPOSED PAYMENT TO MR. JACOB SEIDENBERG, ENFORCEMENT ATTORNEY IN THE PHILADELPHIA OFFICE FOR THANKSGIVING DAY, NOVEMBER 28, 1946.

MR. SEIDENBERG RESIGNED FROM THE WAGE STABILIZATION BOARD NOVEMBER 18, 1946 FROM A WAR SERVICE APPOINTMENT, AND WAS PAID A LUMP SUM FOR HIS ANNUAL LEAVE IN ACCORDANCE WITH THE LANE LAW OF DECEMBER 21, 1944. SUBSEQUENTLY, MR. SEIDENBERG WAS REEMPLOYED ON A TEMPORARY APPOINTMENT (90 DAYS) DATED NOVEMBER 22, 1946. SINCE MR. SEIDENBERG WAS APPOINTED ON A TEMPORARY BASIS, HE IS NOT REQUIRED TO MAKE A REFUND FOR THE LUMP SUM PAYMENT WHICH WAS MADE AND WHICH INCLUDED THANKSGIVING DAY. THIS IS IN LINE WITH DECISION B-60657 DATED OCTOBER 24, 1946 (26 COMP. GEN. 259) IN THE THIRD PARAGRAPH.

SINCE MR. SEIDENBERG IS PRESENTLY EMPLOYED ON A PER ANNUM BASIS, HE WOULD PROPERLY BE DUE PAY FOR THANKSGIVING DAY, IF IT WERE NOT FOR THE FACT THAT HE HAD ALREADY BEEN PAID LUMP SUM FOR LEAVE ON THAT DAY. THIS WOULD APPEAR TO ME TO BE A DUAL PAYMENT FOR THANKSGIVING DAY FOR WHICH MR. SEIDENBERG DID NOT PERFORM ANY SERVICES.

THERE IS NO PRECEDENT KNOWN TO THIS OFFICE, AND IT IS REQUESTED THAT YOU TAKE THE MATTER UNDER CONSIDERATION AND ADVISE US.

THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, SPECIFICALLY PROVIDES THAT LUMP-SUM PAYMENTS AUTHORIZED THEREIN SHALL NOT BE REGARDED AS SALARY OR COMPENSATION EXCEPT FOR PURPOSES OF TAXATION. ALSO, IT IS PROVIDED IN THE SAID ACT THAT THE AMOUNT DUE AN EMPLOYEE AS A LUMP-SUM PAYMENT FOR HIS ACCRUED AND ACCUMULATED ANNUAL LEAVE "SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.' IN VIEW OF SUCH PROVISIONS IT CLEARLY APPEARS THAT THE PERIOD COVERED BY A LUMP-SUM PAYMENT IS USED MERELY AS A MEASURE FOR COMPUTING THE AMOUNT THEREOF AND SUCH PAYMENTS MAY NOT BE REGARDED AS COMPENSATION FOR ANY PURPOSES EXCEPT TAXATION. IN THAT CONNECTION SEE 24 COMP. GEN. 526; ID. 511.

FROM THE FACTS RECITED IN YOUR LETTER IT APPEARS THAT THE EMPLOYEE INVOLVED PROPERLY RECEIVED A LUMP-SUM PAYMENT AND PROPERLY WAS NOT REQUIRED TO REFUND ANY PART THEREOF UPON HIS REEMPLOYMENT IN A TEMPORARY POSITION. THEREFORE, AS THE LUMP-SUM PAYMENT RECEIVED BY HIM MAY NOT BE REGARDED AS COMPENSATION FOR THANKSGIVING DAY (OR ANY OTHER DAY FALLING WITHIN THE PERIOD COVERED THEREBY) HE NOW IS ENTITLED TO COMPENSATION FOR THAT DAY UNDER HIS PRESENT APPOINTMENT. ACCORDINGLY, THE SUBMITTED VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.