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process and the guarding and transportation of the insane of Alaska, also for the pay of the commissioners, the jurymen and the witnesses in insanity proceedings:
"For the service of process in connection with and the guarding and transportation of the insane, shall be compensated from the same source and in the same manner as in the case of prisoners convicted of crime. The commissioner, the jurymen, and the witnesses in said proceeding shall be entitled to the same compensation and mileage as in civil actions. And all the compensation, mileage, fees, and all other expenses and outlays incident to said proceedings shall be audited and allowed by the district judge of the division in which said proceedings are pending and had, and when so audited and allowed shall be paid by the clerk of the court in such division as the incidental expenses of the court are by him paid and from the same fund.
Under the head of miscellaneous objects, Department of the Interior, in the act approved March 3, 1905 (33 Stat., 1189), the following act making an appropriation for the purposes therein named appears as follows:
"For the care and custody of persons legally adjudged insane in the district of Alaska, including transportation and other expenses, up to and including June thirtieth, nineteen. hundred and six, to be immediately available, seventeen thousand two hundred and thirty-two dollars.'
Confining myself to an answer to the specific question submitted, viz, whether the marshal's fees and expenses in insanity cases in Alaska, prior to and during the trial thereof, are payable from the judicial appropriation salaries, fees, and expenses of marshals, United States courts, I answer the same in the affirmative.
From a reading of all the acts above quoted, I am of opinion that the language "and all the compensation, mileage, fees, and all other expenses and outlays incident to said proceedings shall be paid by the clerk of the court in such division as the incidental expenses of the court are by him paid and from the same fund," has no reference to marshal's fees and expenses, before and during the trial of the case, but refers to the compensation, mileage, and fees of the commissioners, jurymen, and witnesses.
Query whether the provision in the sundry civil act, supra, repeals by implication that provision of the Alaskan act
approved January 27, 1905, supra, which provides that the cost of transportation of insane persons of Alaska shall be paid the marshal from the same source as he is paid for transporting persons convicted of crime.
AUTHORITY OF THE COMMISSIONER OF INTERNAL REVENUE TO RECONSIDER AND ALLOW A CLAIM WHICH HE HAD PREVIOUSLY REJECTED. The Commissioner of Internal Revenue is authorized to reconsider and allow a claim which he had, through error of law, previously rejected. (Decision by Comptroller Tracewell, May 11, 1905.) The Auditor for the Treasury Department has reported for approval, disapproval, or modification a decision purporting to make an original construction of a statute, as follows:
"The claim of Waldo Newcomer and Frederick H. Hack. executors of the will of Benjamin F. Newcomer, for the refund of $31,653.43 legacy tax alleged to have been paid on contingent beneficial interests, has been received from the Commissioner of Internal Revenue with his finding of fact as follows: In re
"The claim of Waldo Newcomer and Frederick H. Hack, executors of the will of Benjamin F. Newcomer, for the refunding of $31,653.43, as tax paid upon future beneficial interests:
"FINDING OF FACTS:
"Benjamin F. Newcomer died March 30, 1901, leaving a personal estate of the net value of $6,564,025.34. This estate was divided into a number of legacies, many of which were less than $10,000.
"Of those exceeding $10,000, or which were taxable, two absolute legacies, amounting to $12,300 and $11,000, passed to a nephew of and a stranger to the decedent. The residue of the estate was divided into four equal parts, each of which amounted to $1,610,168.83. One of these parts passed to a son absolutely, and the other parts, under the eighth clause of the will, were placed in trust, the income therefrom to be given to the three daughters, share and share alike, the said shares to be held in trust until the death of the last survivor of the same, and in case of the death of any of the daughters the income was to be given to the descendants of the same. At the death of the last survivor of the daughters the property was to be distributed among their children.
"These interests were all returned for taxation and a tax of $117,870.49 was assessed thereon and paid May 7, 1901,
and May 7, 1904. One of these daughters died in 1901 and the income from this property under the will passed to the children of the same for the life of the youngest daughter. The tax due upon this estate and the interests which had vested in actual possession or enjoyment prior to July 1, 1902, amounts to $86,941.91.
"The claim was rejected February 10, 1905, and suit instituted against the collector for the recovery of the tax claimed to have been paid upon the future beneficial interests. The executors now ask to have the claim reopened and considered on its merits, and, in accordance with the suggestion of this office of March 13, 1905, agree to have the suit against the collector dismissed upon allowance of the claim.
"The claim is hereby allowed under the act of June 27, 1902, as construed by the United States Supreme Court in the case of Vanderbilt v. Eidman, for $30,928.58.
"The history of the case appears as follows:
"The tax of $31,653.43 was paid to the collector May 7, 1904, under protest. A claim for refund was made June 8, 1904, which was filed with the Commissioner of Internal Revenue June 28, 1904. On February 21, 1905, the Commissioner of Internal Revenue notified the collector of internal revenue at Baltimore, Md., that the claim had been examined and rejected.
"Suit was instituted by the executors February 23, 1905, in the United States circuit court for the district of Maryland for the recovery of the amount claimed. On April 18, 1905, the suit was dismissed upon notice that the Commissioner had reopened and allowed the claim with the approval of the Secretary of the Treasury.
"The claim arises under section 3 of the act approved June 27, 1902, which provides for the refund of so much of the tax upon legacies as may have been collected on contingent beneficial interests which shall not have become vested prior to July 1, 1902. (32.Stat., 406.)
The Commissioner reopened and rejected claim on the construction of said section 3, made by the Supreme Court in the case of Vanderbilt v. Eidman, printed in Treasury Decisions of March 2, 1905, vol. 9, No. 9, p. 49.
"There was no newly discovered and material evidence furnished not considered in the first instance and no mistakes in matters of fact arising from errors in calculation, but because of an error of judgment in regard to the law of the case as subsequently construed by the Supreme Court the claim was reopened and allowed.
"I have decided that the Commissioner of Internal Revenue has authority to reopen a claim arising under section 3 of the act approved June 27, 1902, upon reversal of his former decision by the Supreme Court in order that the records of the Department may conform to the ruling of said court."
The sole question presented for decision in this case is the authority of the Commissioner of Internal Revenue to reconsider a former decision refusing, as a matter of law, on facts about which there has at no time been any disagreement, to make the refund of the taxes in question, and make the allowance as originally claimed. The original decision of the Commissioner refusing to make the refund was an error of law, as is shown in the recent case of Vanderbilt v. Eidman.
The same Commissioner who refused the refund reopened the rejected claim and allowed it.
If the Commissioner, instead of disallowing a claim, had allowed it, and the allowance thereof afterwards turned out to be a mistake of law, a different question would be presented, if he should attempt to reopen and disallow the same. See United States v. Bank of Metropolis, Reports of the Supreme Court, vol. 15, pp. 400-401.
But where the same executive officer who is by law authorized to allow a claim disallows it, and such disallowance is the result of a clear mistake of law or fact arising from calculation, or material newly discovered evidence is afterwards produced, such executive officer is authorized to reconsider such claim and allow it. One branch of this question was fully considered in my decision of February 17, 1905, which will appear in 11 Comp. Dec., 459 et seq.
The decision of the Auditor is affirmed.
RENT OF BUILDINGS IN THE DISTRICT OF
The permanent appropriation made in section 4461, Revised Statutes, for the expenses of the steamboat inspection service, does not provide "in terms" for the rent of a building in the District of Columbia, and therefore the renting of a room in said District for the use of the supervising inspectors of steam vessels at their annual meeting is prohibited by the act of March 3, 1877, which provides that no building, or part of a building, shall be rented for the use of the Government in the District of Columbia unless appropriated for in terms.
(Comptroller Tracewell to the Secretary of the Treasury, May 11, 1905.)
By your reference, dated May 5, 1905, of a communication from the Secretary of Commerce and Labor, dated May 3,
1905, you request a reconsideration by me of my decision of May 28, 1904, in the revision of an account of Mr. W. L. Soleau, disbursing clerk, Department of Commerce and Labor, appeal No. 10344, in so far as that decision relates to an item of $75 for the rent of two rooms in the District of Columbia from June 1 to July 16, 1903, for the purposes of a meeting of the Board of Supervising Inspectors of Steam Vessels, which item was disallowed, for the reason that the renting of the rooms was prohibited by the following provision in the act of March 3, 1877 (19 Stat., 370):
*** hereafter no contract shall be made for the rent of any building or part of any building to be used for the purposes of the Government in the District of Columbia until an appropriation therefor shall have been made in terms by Congress, and that this clause be regarded as notice to all contractors or lessors of any such building or any part of building."
In the communication from the Secretary of Commerce and Labor he says:
"In addition to the fact that the payment of this item was specifically authorized by the head of the department under which the Steamboat-Inspection Service was at that time, the practice in the administration of this specific part of the Steamboat-Inspection Service has for many years been uniformly the same.
"The construction uniformly placed upon this provision of law heretofore, as appears from vouchers paid by George A. Bartlett, one of the disbursing clerks of the Treasury Department, for rent of quarters for the regular annual meetings of the Board of Supervising Inspectors of Steam Vessels, held in January of 1900, 1901, 1902 and 1903, from the appropriation 'Contingent expenses, Steamboat-Inspection Service,' and the testimony of the chief clerk of the SteamboatInspection Service, that similar expenses have been incurred for the past twenty-five or thirty years without any question on the part of the accounting officers of the Treasury, takes the ground that the provision applies to officers of the Government whose duty and employment are wholly in the District of Columbia, and has no reference to those officers whose duties are beyond the limits of said District and who are called to Washington for special duty at widely separated periods of time. It would seem that the principle in administrative practice of adhering to established and well recog nized methods of disposing of an oft-recurring question would apply in this case.