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public roads, or other constant labor of not less than ten days' duration, they shall receive, in addition to their regular pay, the following compensation:

* *99


The provisions of the army appropriation act of July 5, 1884 (23 Stat., 110), amended said section as to the rates of additional compensation for extra duty.

In decision of this office dated April 13, 1905, it was held that if an enlisted man was prevented from working ten consecutive working days by reason of an "accident, conditions of the weather, sickness, by order of his superior officer, or other proper cause," he is entitled to extra-duty pay for the days he actually worked, provided such extra duty so performed is of at least ten days in duration, whether said ten days are consecutive working days or not.

I am therefore of opinion that Corey's failure to work on April 20 and 27, by reason of the suspension of work on those dates, by order of the commandant of the yard, does not deprive him of the right to pay for work performed from April 21 to 26, 1905, inclusive.

You are authorized to pay said voucher if it is otherwise



Under the provision in the act of May 4, 1882, for the payment to a deceased surfman's widow and minor children of the salary which he would have received, had he lived and continued in the service, for a period of two years after his death, the widow and children of a deceased surfman who died on January 30, 1903, are entitled, in computing the final payment for the month of January, 1905, to 30,30, or the entire installment, of the monthly salary."

(Decision by Comptroller Tracewell, June 20, 1905.)

The Secretary of the Treasury appealed June 14, 1905, from the action of the Auditor for the Treasury Department in settlement dated May 25, 1905, on the claim of Mrs. Mary A. Merrell, widow of W. A. Merrell, late surfman of the Caffeys Inlet life-saving station, seventh district, and guardian of his minor children, under the provision of section 8 of the act of May 4, 1882. (22 Stat., 57.)

The settlement was for a final payment to the widow and minor children for the month of January, 1905.

Under the terms of said act the widow and minor children are entitled to the same salary that the deceased surfman would receive if he were alive and continued in the service for a period of two years.

The two years expired on January 30, 1905, and the Auditor decided that the claimant was entitled to a monthly installment less one-thirtieth of said installment, during the day on which the service did not continue, citing the decision of this office of September 10, 1904. (MS. Dec., vol. 30, p. 785.)

The decision referred to related to a payment which a disbursing officer proposed to make to an employee or clerk on the thirtieth of a thirty-one day month, which clerk proposed to continue in the service and be absent on leave on the thirtyfirst day of said month, but whether with or without pay is not shown. The case was decided on the theory that there should be one day's pay deducted for the day on which he was required to perform service, on the thirty-first, if he remained in the service.

Where the service continues through the entire month the employee is to be paid one monthly installment for such service, less a deduction of one-thirtieth of the monthly installment for each day on which he forfeits his pay for any cause or is absent on leave without pay. (11 Comp. Dec., 50; id., 130.)

On the other hand, where the service is for less than one month it is a broken service, and he is paid for a fractional part of a month within the meaning of the act of April 28, 1904 (33 Stat., 513), and he is to be paid at the daily rate of one-thirtieth of the monthly installment for each day he actually serves. (11 Comp. Dec., 24; id., 48; id., 84.)

Where deductions are to be made from the installment for a fractional part of a month, such deductions are made at the rate fixed per day for making fractional payments, or onethirtieth for each day, regardless of the number of days in the month.

The service in the case stated is for less than a month, and therefore the daily rate applies, and that rate is to be paid for each day the right to payment continues, for any period less than a month, or, in this case, for thirty of the thirtyone days in January. (11 Comp. Dec., 184.)

If the surfman had lived and continued in the service to and including January 30, and died, resigned, been discharged, or been separated from the service without the forfeiture of any of his pay in January, he would have been entitled to pay at the daily rate for thirty days in January.

The action of the Auditor is therefore overruled.


A claim for the refundment of an internal-revenue tax paid, under the act of June 13, 1898, on a specific legacy, or on a contingent beneficial interest, which had not become vested, of a legacy or distributive share of personal property passing by will or the intestate laws of any State or Territory, must, under the provisions of section 3228, Revised Statutes, be presented within two years from the date the tax was paid. (Comptroller Tracewell to the Secretary of the Treasury, June 20, 1905.)

In your communication of June 6, 1905, you request my decision of a question which you therein present as follows:

"Herewith are transmitted the papers relative to the claim of George W. Hebard, executor of the will of Marcellus Hartley, deceased, for the refunding of $151,700.03, tax paid on legacies, with request for an opinion on the following question:

"When the amount of the legacies to any one person, for taxation purposes, has been determined by adding the amounts of the specific legacies to said person and the present worth of a legacy or remainder not vested in possession prior to July 1, 1902, the rate being fixed by the total thus found, is this office authorized in refunding, under the act of June 27, 1902, such amount as has been paid on the legacy not vested prior to July 1, 1902, to refund also, under said act, such amount as may be found due on the specific legacy, owing to the difference between the rate which would be chargeable upon the specific legacy alone, and that upon the total, by which the rate was originally determined?

"Except for the decision of the Supreme Court in the Vanderbilt case, it might be held that the two years' limitation provided by section 3228, Revised Statutes, did not begin to run until the passage of the act of June 27, 1902. In view of that decision, which was to the effect that the collection of taxes on future beneficial interests was erroneous from the

beginning, it would appear that no claim based upon a change of classification as affected by the act of June 27, 1902, would be allowable under section 3220, Revised Statutes, unless made within two years after the tax was actually paid.

"As many of the pending claims were not presented until after the passage of the act of June 27, 1902, long after the two years' period of limitation had expired, relief as to that part of the claims can not be granted unless the act of June 27, 1902, authorizes the adjustment of the rate to accord with the change of classification due to its provisions."

Section 3 of the act of June 27, 1902 (32 Stat., 406-407), to which you refer, contains the following provision:

"That in all cases where an executor, administrator, or trustee shall have paid, or shall hereafter pay, any tax upon any legacy or distributive share of personal property under the provisions of the act approved June thirteenth, eighteen hundred and ninety-eight, entitled 'An act to provide ways and means to meet war expenditures, and for other purposes,' and amendments thereof, the Secretary of the Treasury be, and he is hereby, authorized and directed to refund, out of any money in the Treasury not otherwise appropriated, upon proper application. being made to the Commissioner of Internal Revenue, under such rules and regulations as may be prescribed, so much of said tax as may have been collected on contingent beneficial interests which shall not have become vested prior to July first, nineteen hundred and two."

The right of any executor, administrator, or trustee who had paid an internal-revenue tax under the act of June 13, 1898, and amendments thereof, on a contingent beneficial interest, which had not become vested, of a legacy or distributive share of personal property passing by will or the intestate laws of any State or Territory, to refundment thereof was not created by the above provision of the act of June 27, 1902, but existed prior thereto (Vanderbilt v. Eidman, 196 U. S., 500). He had the right, therefore, to present his claim for refundment as soon as he had paid the tax, and under the provisions of section 3228 of the Revised Statutes his claim therefor must be presented within two years from the date. the tax was paid.

The terms of this section are as follows:

"All claims for the refunding of any internal tax alleged to have been erroneously or illegally assessed or collected, or of any penalty alleged to have been collected without authority, or of any sum alleged to have been excessive or in

any manner wrongfully collected, must be presented to the Commissioner of Internal Revenue within two years next after the cause of action accrued.'

This provision is permanent legislation, and it applies to "all claims for the refunding of any internal tax." In 7 Comp. Dec., 714, in considering the permanent character of the provisions of the Revised Statutes, I said:

"The provisions of the Revised Statutes are permanent legislation, and many of these provisions are intended to restrict general implications arising from subsequent general laws and particular appropriation acts. Otherwise it would be necessary for Congress to repeat these restrictive provisions year after year in numerous statutes. In considering a subsequent statute, therefore, it is to be read as if it actually contained these provisions, so far as they are applicable thereto, unless the terms of the statute clearly indicate a contrary intention or are repugnant thereto. It is also to be presumed that every statute passed by Congress is framed in contemplation of these provisions, and that it is not intended to abrogate any of them or to operate as an exception thereto unless such an intention is clearly manifested, and then to no greater extent than is so manifested."

There is nothing in the language of the above provision in section 3 of the act of June 27, 1902, that indicates an intention by Congress to except this class of claims from the provision in section 3228, supra, and I am of opinion that the latter provision by implication prohibits the refundment of any tax the claim for the refundment of which was not presented within two years from the date of payment of the tax.

Under this view the limitation upon the time within which claims for refundment can be presented, contained in section 3228, supra, applies to the tax on the contingent beneficial interest as well as to specific legacies.

Referring now to the specific question presented by your reference, as I understand it, viz, whether you are authorized to refund an amount of tax collected on a specific legacy over and above the amount which would have been legally collectible if the rate thereon had not been increased by adding to the rate of taxation thereon the added rate which accrued by reason of taking into consideration in fixing the rate the value of the present worth of legacies or remainders not vested in possession prior to July 1, 1902 (see the act of March 2, 1901, 31 Stat., 947); the provisions of section 3 of the act of June

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