equipment 29,059 gallons of gasoline to deliver its products in the city of Washington and paid the tax on that amount of gasoline to the District of Columbia; that during the same period the company sold and delivered at its plant in Virginia 22,779 gallons of gasoline on which tax was paid to the District of Columbia; that during said period the company sold 1,546 gallons of gasoline which was used in Virginia, but that the company was under the impression that such gasoline was for use in the District of Columbia and paid to the District the tax thereon; that afterward, upon an audit of the company's books by the tax department of the State of Virginia, it was determined that the gasoline used in the company's rolling equipment had been put in in the State of Virginia, and that the gasoline sold as above had been delivered in the State of Virginia; and that under the Virginia law, the company was required to and did pay to the State of Virginia a tax of 5 cents per gallon on the total amount of said gasoline. It is observed that there is a discrepancy of 2,000 gallons in favor of the claimant in the letter, supra, in that the gallons listed total 53,384, on which the tax would be $1,067.68, while the claim was on 55,384 gallons in the amount of $1,107.68.

The act of April 23, 1924, 43 Stat. 106, lays a tax of 2 cents per gallon on motor-vehicle fuels within the District of Columbia, sold or otherwise disposed of by an importer, or used by him in a motor vehicle operated by him for hire or for commercial purposes. An importer is defined as any person who brings into, or who produces, refines, manufactures, or compounds, in the District of Columbia, motor-vehicle fuel to be sold or otherwise disposed of by him or to be used by him in a motor vehicle operated for hire or for commercial purposes.

If the allegations contained in the letter of December 10, 1931, from the claimant's attorney are established by evidence, it would appear to be clear that the gasoline involved in its claim, with the exception of that used in the rolling stock of the claimant, was not brought into the District of Columbia and, therefore, was not subject to the District tax.

Section 821, title 20, District of Columbia Code, prepared under direction of a committee of the House of Representatives, reads as follows:

Taxes erroneously paid to be refunded.-The Commissioners are hereby authorized and instructed to cause all taxes erroneously paid in the District of Columbia to be refunded by the proper accounting and disbursing officers of said District, upon the certificate of the collector of such erroneous payment, which certificate shall state the nature of the error, the name of the person or persons by whom such excessive payment was made, and such other particulars as may be necessary to satisfy the accounting officers that such claim for reimbursement is just and equitable; and the said accounting and disbursing officers shall pay all moneys so refunded out of, and charge the same to, the fund which was credited with the erroneous payment.

This statute requires:

(1) A certificate of the collector of the erroneous payment stating (a) the nature of the error, (b) the name of the person or persons by whom the excessive payment was made, and (c) other particulars necessary to satisfy the accounting officers of the District of Columbia that the claim for reimbursement is just and equitable.

(2) A decision by the accounting officers of the District of Columbia based upon such certificate, that the claim for reimbursement is just and equitable.

Neither the required certificate of the collector nor a decision of the accounting officers of the District of Columbia accompanies your submission. The broad general proposition may be stated that the burden is upon one asserting a claim to establish it by evidence satisfactory to the tribunal charged with the responsibility for its determination. In this instance, such responsibility is placed specifically upon the accounting officers of the District of Columbia by the quoted statute, which, likewise, prescribes the evidence upon which the determination shall be made. The mere fact that the claimant was required to pay to the State of Virginia a tax of 5 cents per gallon on 55,384 gallons of gasoline is no evidence to support the refund here claimed. It should be affirmatively established to the satisfaction of the accounting officers of the District of Columbia that the tax at 2 cents per gallon was paid to the District of Columbia on the identical gasoline, and that such payment was erroneous. Your letter states that the representatives of the Auditor of the District of Columbia have spent considerable time in the offices of the Washington Petroleum Products, Inc., and are unable to produce positive proof that the claim of the company for a refund of $1,107.68 is a just and proper claim. It follows that unless and until there be furnished by the claimant such evidence as will be satisfactory to the accounting officers of the District of Columbia and the determination and certification required by the statute are made, no refund would be authorized.

(A-59119)

LOST CHECKS-BOND OF INDEMNITY-LOANS BY FARM CREDIT ADMINISTRATION

A check for a facility loan made by the Farm Credit Administration, sent by mail to the borrower but not received by him, is an outstanding obligation of the United States for which appropriated funds must remain available to honor on presentation by a bona fide holder. The check being lost before receipt by the borrower, credit for the amount thereof on the loan may be made only after the execution of a surety bond to indemnify the United States as provided by section 3646, Revised Statutes, as amended,

7556°-35-32

Comptroller General McCarl to the Governor, Farm Credit Administration, December 22, 1934:

There has been received your letter of December 5, 1934, as follows:

On July 24, 1933, the Farm Credit Administration made a facility loan commitment to the Poultry Producers Association of Texas, San Antonio, Texas, in the amount of $700.50. This commitment was made for the purpose of paying ground rents due the Missouri-Kansas-Texas Railroad Company of Texas. On August 9, 1933, check no. 5020 was issued on D. O. voucher no. 1557, by A. L. Peterson, Disbursing Officer, symbol no. 92/693, for $700.50, payable to the order of the borrower and chargeable to the Agricultural Marketing Revolving Fund, symbol no. OX567. This check was sent by mail to the Frost National Bank of San Antonio, Texas, on August 9, 1933, with instructions that the bank should obtain the indorsement of the borrower and act as trustee of the funds, in accordance with arrangements theretofore made.

This check has never been presented to the Treasurer of the United States for payment, and both the Frost National Bank of San Antonio and the borrower allege that it has been lost. The Farm Credit Administration has a demand note of the borrower, dated July 24, 1933, for $700.50, and the situation has now so changed that the borrower is no longer desirous of obtaining the amount of the check for the purpose for which it was originally granted.

In order that the amount of the check might be credited to the loan receivable account, to which the $700.50 was charged on August 9, 1933, the borrower was requested to obtain a bond of indemnity for the issuance of a duplicate check, as required by section 3646 of the Revised Statutes. On October 28, 1934, the general manager of the borrower association protested against the requirement that the borrower pay the expense of providing the required indemnity bond, for the reason that the advance under the loan commitment of July 24, 1933, had never actually been received by the borrower. The only instrument in the hands of the Farm Credit Administration, evidencing the obligation of the borrower association to pay this money, is its unsecured demand note. In cases of this kind, where a loan is supported by collateral security which the borrower is anxious to have returned to him, there is such an inducement that little or no difficulty is experienced in obtaining the required bond of indemnity, whereupon the duplicate check can be issued and canceled, and the amount thereof can be credited to the loan, enabling this office to cancel the note and return the collateral security.

As a general rule, where checks issued by disbursing officers and agents of the United States become lost, stolen, or destroyed, either the original payee or lawful holder is interested in the issuance of a duplicate check in order that he may receive the proceeds thereof, and can readily be induced to provide the required bond.

In the present case, the situation is decidedly different. The check is lost and the only advantage to be gained by the borrower from the execution of a bond of indemnity is the waiving of an interest charge on the loan and the return of the note. In the event of suit on such a note, the Farm Credit Administration would, of course, be unable to prove payment of the sum borrowed, in the absence of the check bearing the indorsement of the borrower. As the records of this office show that the $700.50 is an account receivable of the United States, and as section 93, title 31, U. S. C., requires the General Accounting Office to superintend the recovery of all debts finally certified by it to be due the United States, I am requesting information relative to the steps which your office wishes the Farm Credit Administration to take, preliminary to a final adjustment of this matter.

In this connection, it should be noted that many thousands of crop-production loans, which have been made by the Farm Credit Administration and by its predecessor, the Department of Agriculture, have been secured by crop mortgages for the years in which the loans were made, and that, upon the harvesting of such crops, if the loans are not fully paid, this office is in possession of merely the notes executed by the borrowers. Where checks issued for loan proceeds in these cases are lost, destroyed, or stolen before they have been negotiated by the payees, a similar situation to that presented in the case of the Poultry Producers Association of Texas will arise.

It is anticipated that the information you may furnish relative to the Poultry Producers Association of Texas will be of assistance to this office in handling these other similar cases.

From the statements contained in your letter, it appears clear that the check in question is an outstanding obligation of the United States for which the appropriated funds must remain available to honor on presentation. Until the check is presented, it cannot be determined whether it has been negotiated or otherwise disposed of by the payee thereof, and the taking of any action in connection with the disposition of the proceeds of any such check prior to the ascertaining of the facts would clearly be improper. It being alleged the check is lost, the matter is for treating the same as any other case of a lost, stolen, or destroyed check, and payment may be made or credit given therefor on the loan only after the execution of a surety bond to indemnify the United States as provided by section 3646, Revised Statutes, as amended, and regulations made pursuant thereto. A-11066, January 2, 1926. If the payee refuses to furnish a bond of indemnity, no action may be taken by your Administration other than reporting the facts of the alleged lost check to the Treasurer of the United States requesting stoppage of payment thereon. You are advised accordingly.

(A-58421)

PENSION-NAVY-RATE WHILE IN NAVAL HOSPITAL

The pension of a Navy pensioner, while receiving hospital care in a naval hospital, not as a Veterans' Administration beneficiary, is required under section 4813, Revised Statutes, to be paid to the Secretary of the Navy for the benefit of the fund from which such hospital is maintained at the reduced rate prescribed by Executive order pursuant to the act of March 20, 1933, 48 Stat. 8.

Decision by Comptroller General McCarl, December 26, 1934:

The Veterans' Administration has requested refund from the Naval Hospital, Chelsea, Massachusetts, of an overpayment of pension in the sum of $11.50, incident to the hospitalization of Edward A. Brower, naval pensioner, Peace Time Service, for the period November 8, 1933, to December 8, 1933.

It appears that Edward A. Brower, naval pensioner, was admitted under section 4813, Revised Statutes, to the naval hospital, named as a Navy pensioner on November 8, 1933, and discharged from the hospital on December 8, 1933, and that, through error, the Veterans' Administration paid the hospital at the rate of $15 per month for the period November 8, 1933, to December 31, 1933, a total of $26.50 instead of $15.

By Public No. 2, act of March 20, 1933, section 1-a, 48 Stat. 8, the payment of pensions, subject to such requirements and limitations as shall be contained in Presidential regulations, to "any person

who served in the active military or naval service and who is disabled as a result of disease or injury or aggravation of a preexisting disease or injury incurred in line of duty in such service" was authorized, that is, inclusive of peace-time service. Section 3 authorized the President to prescribe, by regulations, pensions for different classes of service, including paragraph (b) for disabilities "in line of duty in peace-time service." Section 17 provides, in part, as follows: All public laws granting to former members of the military or naval service for injury or disease incurred or aggravated in the line of duty in the military or naval service are hereby repealed, *

pension

The authority of the President, through the Veterans' Administration, to fix the rate of pension is, therefore, clear. Paragraph VI, Veterans' Regulation 6-a (Executive Order No. 6232, dated July 28, 1933) provides:

*

Pension for disability the result of injury or disease incurred or aggravated in the line of duty in the active military or naval service of any person who is being furnished hospital treatment, institutional or domiciliary care by the United States, or any political subdivision thereof, shall not exceed $15 per month, provided that where such person has a wife, child, or dependent mother or father the difference by which the amount to which the disabled person would otherwise be entitled exceeds $15 will be payable to the wife, child, or dependent mother or father, as may be prescribed by the Administrator of Veterans' Affairs. *

Section 4813, Revised Statutes, as amended, provides:

Whenever any officer, seaman, or marine entitled to a pension is admitted to a naval hospital, his pension, while he remains there, shall be deducted from his accounts and paid to the Secretary of the Navy for the benefit of the fund from which such hospital is maintained (24 U. S. C. A. 6).

Administrator's Decision, Veterans' Administration, No. 209, dated November 17, 1933, after quoting the above section, is as follows:

This provision of the law was first enacted on February 26, 1811, (2 Stat. 650) and its obvious purpose was to provide for the reimbursement of the Navy hospital fund from the pension, if any, of the veteran during the time he was receiving hospitalization at the expense of the Navy. It has, however, never applied to the pension payable to any veteran receiving hospitalization in a Navy hospital at the expense of the Veterans' Administration or its predecessors. It has been expressly held relative to the current effect of prior statutes that the pensions provided by the act of March 20, 1933 (Public, No. 2, 73d Congress) are subject to the restrictions imposed by that act and by the regulations promulgated by the President under section 4 authorizing him to prescribe any requirements as to entitlement as he shall deem equitable and just. It has also been held that while a veteran is hospitalized under section 6 of Public No. 2, 73d Congress, as amended, and the regulations issued thereunder his pension is subject only to the restrictions of such regu lations. Therefore, any veteran who may be placed in a naval hospital under regulation 6 (a) is subject to the provisions of paragraph VI thereof only, insofar as restrictions on the payment of pension are concerned. But there is nothing in Public No. 2, 73d Congress, which modifies or amends the provisions of section 4813, supra, insofar as any person hospitalized in a naval hospital by the Navy Department is concerned. This provision of law is obvicusly not one which was repealed by section 17, Public No. 2, 73d Congress, and pensions payable to any person who may be placed in such a hospital by the Navy Department are subject to the provisions of that law.