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6. United States Attorney General Opinion, May 8, 1929

36 U.S. Op. Atty. Gen. 40

AUTHORITY OF SECRETARY OF THE TREASURY TO COMPROMISE FINAL JUDGMENTS

[40] The Secretary of the Treasury has no authority under section 3469 of the Revised Statutes to accept the offer of the Great American Indemnity Company is compromise of certain final judgments recovered by the United States against the surety company upon forfeited bail recognizances, there being no doubt as to the entire collectibility of these judgments.

To the SECRETARY OF THE TREASURY.

[41] SIRS:

Your letter of March 16, 1929, submits for my opinion the question whether you have authority under section 3469 of the Revised Statutes to compromise certain judgments recovered by the United States upon forfeited bail recognizances. The circumstances giving rise to your inquiry appear to be as follows:

On September 14, 1927, each of five defendants held upon a charge of having conspired to violate the National Prohibition Act and the Tariff Act of 1922 entered into a bond, in the sum of $5,000, with the Great American Indemnity Company as surety, conditioned upon the appearance of the principal at the November Term, 1927, of the United States District Court at Norfolk, Virginia. The criminal case was set for trial on December 5, 1927, and on December 20, 1927, none of the defendants having appeared, the court declared each of the bonds forfeited. Scire facias proceedings thereafter brought resulted in the recovery by the United States of a separate judgment upon each bond. On June 1, 1928, one day after the entry of these judgments, four of the defendants surrendered, and they were subsequently tried, convicted and sentenced. The fifth defendant, Joseph Dally, has neither surrendered nor been apprehended, and the judgment upon the bond given by him, together with interest and costs, has been paid by the surety company.

Petitions by that company, under section 1020 of the Revised Statutes, for remission of the amounts of the remaining four judgments having been denied by the court, the company, by letter dated December 17, 1928, submitted to you an offer of $1,000 in compromise of these unsatisfied judgments, which total $20,000. As reasons why the offer should be accepted, the letter referred to the fact that the company had already paid in excess of $5,000 in satisfaction of the judgment upon the bond given by the defendant Dally, and stated that, owing to its lack of experience in such matters, the company had not entered into any separate indemnity agreements with the principals at the time it became surety upon these bonds, and that any loss resulting therefrom would, therefore, fall entirely upon it; that it [42] had expended considerable sums of money in endeavoring to apprehend the said defendants, whose surrender was due largely to its efforts, and that by virtue of such surrender on th e day following the entry of the scire facias judgments and of the trial and convictions which followed, the United States had lost none of its rights, the ends of justice were properly served, and the United States should not demand the full amount of the penalty for the default, but should accept the offered compromise, which would reimburse it for its expenses incurred in seeking the apprehension of these defendants.

Pursuant to the practice in such cases, the compromise offer was referred to the United States Attorney for his recommendation in the premises. Estimating that the Government had expended between $1,500 and $2,000 by reason of the failure of the said defendants to appear as required by their bonds, that officer recommended that if the surety company should submit an offer of $2,000 in settlement of these judgments, the offer should be accepted, if cognizable under section 3469 of the Revised Statutes.

The surety company thereupon submitted a new offer in the sum of $2,000, and the Solicitor of the Treasury recommended that it be accepted. In making such recommendation, the Solicitor referred to conflicting opinions of the Attorney General upon the question of the authority of the Secretary of the Treasury, under section 3469, to compromise final judgments recovered by the United States the full amounts of which could be collected, and based his conclusion that such authority existed upon an opinion by Attorney General Wickersham (29 Op. 217), wherein the previous opinions of the Attorney General upon the subject were reviewed and the opinion expressed that, in passing upon offers to compromise final judgments, the Secretary of the Treasury was not restricted to a determination of whether the judgments could be collected, but was authorized to determine, upon considerations of justice, equity, and sound public policy, whether their collection in full should be insisted upon by the Government.

In view of the matters stated and because of a doubt engendered by the divergent views expressed by my predecessors, you ask to be advised whether you have authority [43] under section 3469 to accept the offer of the Great American Indemnity Company in compromise of the aforesaid judgments, as to which you say no appeal has been taken and no showing or claim made that they cannot be collected in full.

Section 3469 of the Revised Statutes, which has been carried without change into the United States Code as section 194 of Title 31, reads as follows:

'Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised upon the terms so offered, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim accordingly. But the provisions of this section shall not apply to any claim arising under the postal laws.'

Except for the final provision regarding claims arising under the postal laws, section 3469 reenacted, word for word, the provisions of section 10 of the Act of March 3, 1863 (c. 76, 12 Stat. 737). Construing the latter statute in 12 Op. 543, Attorney General Evarts, in response to an inquiry by the Postmaster General whether it authorized a compromise by the Secretary of the Treasury of a claim against a surety upon a forfeited recognizance given for the appearance in court of a person charged with robbing the mail, said:

'The statute was not intended to vest in the Secretary of the Treasury any authority, or impose upon him any duty touching the administration of the criminal laws of the United States. Its purpose simply was to enable the Government to realize the largest amounts from money claims which might be of doubtful recovery or enforcement, and to accomplish this object the Secretary of the Treasury was empowered to compromise such claims upon the recommendation of the counsel having charge of them and of the Solicitor of the Treasury. This power is strictly, therefore, a fiscal one, and is to be exercised in each case upon fiscal considerations alone.

[44] '* * *But if it was made to appear to the Secretary of the Treasury that the United States could not realize by judgment and execution the full amount of the debt, by reason of the insolvency of the surety or other impediment, the Secretary was authorized, upon the concurring recommendations of the district attorney and the Solicitor of the Teasury to effect a compromise of the claim upon the best terms that could be obtained.'

Similar views were expressed by Attorney General Devens in 16 Op. 259. The question there propounded by the Secretary of the Treasury was whether an offer of compromise could be accepted under section 3469 where the proponent is able to pay the full amount claimed by the United States, but the United States Attorney recommends acceptance of the compromise offer because he doubts his ability to obtain a judgment. In reply, Mr. Devens said (p. 260):

'Section 3469 is a general section, relating to all claims in favor of the United States not elsewhere specifically provided for. The former letter from this Department expressed the opinion that under that section, where the defendant was entirely solvent, it was not the duty of the Solicitor of the Treasury to recommend a compromise upon the ground that circumstances of hardship existed affecting the defendant. It assumed that the United States was able fully to prove its claim, and merely determined that compromise ought not to be recommended because it was hard to enforce the claim.

'The present inquiry, however, presents the additional fact that it is uncretain whether or not the Government can prove its case. There is therefore this distinct element in the case upon which a compromise can properly be made, resulting from the uncertainty in which the Government is placed as to its ability to obtain a verdict; and in such case it seems to me that a compromise may properly be recommended, not upon the ground that the case is a hard one as against the defendant, but upon the same ground upon which contested claims are often compromised by parties, in view of the uncertainty as to their obtaining a judgment.'

In 16 Op. 617, Solicitor General Phillips, in an opinion approved by Attorney General Devens, advised the Solicitor of the Treasury that section 3469 conferred no authority [45] upon that officer to recommend for compromise by the Secretary of the Treasury cases in which the claim is entirely solvent, but where circumstances of hardship, etc., exist. The opinion was based, not only upon a construction of the language of section 3469, but upon an analysis of the provisions of the Act of 1863 from which that section was derived. It was therein said:

'The purport of the section is that, as to certain claims in favor of the United States in the hands of district and other attorneys for collection, such attorneys may make reports showing the condition thereof, 'and the terms upon which the same may be compromised,' and recommending the acceptance of such terms, whereupon, if the same be also recommended by the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise accordingly.

'It seems to me that the phrases condition of the claim and may be compromised both indicate the circumstances which alone authorize the recommendation. The first denotes doubtful claims, and the second directs the attorney to report the most that can be had by compromise.

'The title and structure of the act of 1863, from which this section was copied, is to the like effect. That title is, 'An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes' (12 Stat., 737). The act consists of fourteen sections, the first eight of which plainly concern frauds upon the customs; the ninth directs the Solicitor of the Treasury to dispose of unproductive property acquired by the United States under judicial proceedings or otherwise; the tenth is that in question; the eleventh gives to district attorneys a commission of 2 per cent, upon all moneys collected under the revenue laws; the twelfth and thirteenth provide for the defense of collectors, &c., by district attorneys; and the fourteenth is a repealing section. The first eight, then, come under the first clause of the title, the next three under the second, and the last three under the third. The ni nth is a means for turning the fruits of former judgments and executions into money; the tenth for the better ascertainment and realization of the value of claims in the course of [46] collection; while the eleventh is intended to increase the diligence of the district attorneys, upon whom, mainly, devolves the duty of carrying out the policy of the section immediately before. The amount of their compensation is made to depend upon the amount of what they secure by the compromise which they recommend.

'The relation between the body of this act and its title is the more relied upon because it appears from the Globe that its main outlines and its title, as introduced, were preserved during its passage through Congress.

'These are some of the reasons which have led me to conclude that the section in question confers no authority in regard to cases merely hard.

'If the language and general purview of the act were more doubtful than they seem, it would have to be borne in mind that the grace of the Government, as regards its debtors, is vested in Congress; that hard cases are proverbially quicksands; and, therefore, it would require clear and specific words to show that the legislature had devolved upon another department so broad and indefinite a prerogative over the public purse.'

In 17 Op. 213, Attorney General MacVeagh expressed views which to some extent conflicted with the prior opinions of the Attorney General above noted. Replying to a request by the Secretary of the Treasury for an opinion as to the correctness of a memorandum prepared by Assistant Secretary French upon the extent of the Secretary's authority to compromise cases, Mr. MacVeagh said (p. 214):

'I beg now to state that I have very carefully considered the subject, and I regret to say that I do not find myself able to agree entirely with the former opinions of this Department referred to in the memorandum of Judge French. Those opinions appear to hold that the only consideration that the Secretary of the Treasury is at liberty to take into account in deciding upon the advisability of any proposed compromise, either of a claim not in suit, or of a suit pending, is whether the Government can realize more money by its prosecution than by accepting the settlement proposed.'

[47] Declaring that he was unable to discover a sufficient basis for such construction in section 3469 of the Revised Statutes, Mr. MacVeagh referred to the requirement of that section, that the district attorney, or other officer having charge of the claim, shall report in detail 'the condition of such claim' and 'the terms upon which the same may be compromised,' and remarked that he did not see that any special import was to be attached to the expressions quoted, and that he thought they left the question of the Secretary's authority open to general considerations. Following further statements to the effect that the grant of authority was general and comprehensive in its language; that the requirement of the concurrence of the several officers mentioned in the statute placed ample safeguards around the exercise of the authority conferred, and that if Congress had desired to impose any limit upon the considerations which the Secretary might entertain in reaching his conclusion, it could easily have done so, Mr. MacVeagh observed (p. 215-216):

'I am also unable to imply from the provisions of the law under review any intention on the part of Congress that the Secretary of the Treasury should be compelled to pursue litigations out of which the United States might undoubtedly realize smaller or greater sums of money, but which in his judgment ought not to be further prosecuted. As an illustration, if a person has been guilty of a technical violation of the internal revenue laws, and upon being informed of it, offers to compromise the case by the payment of the costs and of any other sum justly due the Government, I sec no evidence in these sections of the Revised Statutes, or in the laws from which they were draughted, that Congress intended to require that a suit shall be commenced and prosecuted to extort the penalty intended only for willful violators of the law, and the same considerations would apply to a great variety of cases, some of which must be of frequent occurrence in the administration of the Treasur y Department, where the rigid enforcement of the technical legal rights of the Government would work manifest and plain injustice by taking from citizens money which, in the forum of conscience and good morals, they did not owe to [48] it. It is not necessary to hold that the Secretary of the Treasury is in the matter of compromise a fountain of the compassion of the Government or an almoner of its charity. Those are considerations which do not belong to the administration of a business departments. But, on the other hand, it is to my mind as clearly unnecessary to hold that the Secretary is bound to be an instrument of manifest injustice, and to ask himself only in every case this question, Will the prosecution of the claim in question probably bring to the Treasury more money than its compromise upon the terms proposed?

'I have, therefore, to advise you that while, in considering any compromise submitted to your judgment, you are not at liberty to act from motives merely of compassion or charity, you are at liberty, until Congress sees fit to limit your authority, to consider not only the pecuniary interests of the Treasury, but also general considerations of justice and equity and of public policy.'

It will be noted that the foregoing opinion differed from the opinions of the Attorney General theretofore rendered in that it held that the Secretary of the Treasury was not confined, in the matter of compromising claims in favor of the United States, to the purely fiscal consideration of whether such claims could be collected, but was authorized to take into account considerations of justice, equity and public policy. The only compromises therein referred to, however, were those arising for consideration prior to, or pending, suit. As reasons might readily be conceived which would render doubtful the collectibility of a claim prior to suit, or the obtaining of a judgment thereon pending suit, Attorney General MacVeagh's opinion is manifestly not a precedent upon the question here under discussion, viz, whether the statute confers authority to compromise a final judgment where there is no doubt of its collectibility.

In 21 Op. 50, the question was whether, upon the recommendation of the United States Attorney and the Solicitor of the Treasury, the Secretary of the Treasury was authorized by section 3469 to accept an offer by the International Cotton Press Company of $50 in consideration of the release of a lien held by the United States upon real estate owned by that company. It appeared that the real estate [49] in question was purchased by the company from one Snyder after certain internal revenue taxes adjudged by the Supreme Court to be owing by Snyder had accrued. In an opinion approved by Attorney General Olney, Solicitor General Maxwell concluded that section 3469 conferred no such authority, saying (p. 51):

'The petition for settlement and the recommendations in support thereof are not based upon doubts as to the possibility of realizing the amount of the tax out of the property, but upon the ground of the hardship to the company supposed to be involved in enforcing against it the laws of the United States as interpreted by the Supreme Court in a proceeding to which the company was a party.

'I am of the opinion that section 3469 has no application to such a case. * * *

'The section does not authorize the Secretary of the Treasury to remit or release moneys due to the United States and clearly recoverable, but to 'compromise,' which implies a claim of doubtful recovery or enforcement.

'In the case which you submit there is nothing to 'compromise,' for the right of recovery and the amount hav been finally adjudged by the court of last resort, and the property is said to be sufficient to satisfy the debt.'

In 21 Op. 264, the foregoing opinion was reconsidered and the same conclusion reached by Attorney General Harmon, who said (p. 265):

'The petitioner seeks to be relieved from this adjudged lien on its property on the ground of hardship, because, being protected by no recording act, it bought in ignorance of the Government's claim. This is a hardship shared with all persons who, without sufficient inquiry, buy property subject to claims which the law does not require to be recorded, such as dower rights in estates. The petitioner also claims that the full amount could have been collected from Snyder if the Government had proceeded promptly against him individually instead of relying (as it had a right to do) upon its lien on his property; and that Snyder has since become insolvent, so that, if petitioner's land were sold, it could have no recourse against him.

'Upon taking up this claim for consideration you were confronted with the question, whether it is within your [50] power to release, in whole or in part, a judgment recovered by the United States, from which there is no appeal and of whose collectibility in full there is no doubt.'

After quoting from the previous opinion of Solicitor General Maxwell, Mr. Harmon continued (p. 266):

'I am, however, clearly of the opinion that the opinion already given is correct. The construction given to the statute accorded with that of Mr. Evarts (12 Opin., 543), and with that of Mr. Devens and Mr. Phillips (16 Opin., 617). If the opinion of Mr. MacVeagh (17 Opin., 213) is to be construed as holding that a claim may be compromised when there is no doubt of its entire and ready collectibility, I am unable to concur with it. It appears to ignore the clear distinction between the compromise of a doubtful case and the remission of a penalty, forfeiture, or disability. (Rev. Stat., secs. 3461, 5292.) The former power, as said by Mr. Evarts in the opinion above cited, is strictly a fiscal one. The latter is in the nature of a pardoning power. (The Laura, 114 U. S., 411, 413-414.)' (Emphasis supplied.)

In 23 Op. 18, the Secretary of the Treasury was advised that he had no authority to accept an offer in compromise of a judgment recovered by the United States upon the official bond of a receiver of public moneys in Arizona and affirmed by the Supreme Court. In the opinion, which was prepared by Solicitor General Richards and approved by Attorney General Griggs, it was said (p. 19):

'It is conceded that this final judgment can be collected from the sureties, but a so-called compromise offer is submitted and urged on the ground that it would work a hardship to enforce the collection of the entire amount of the judgment. The grounds of hardship were presented to the courts as a defense to the suit, and are set forth in the statement and opinion of the Supreme Court (170 U. S. 372). The only question presented to me is whether a final judgment in favor of the United States, which is collectible, can be 'compromised' under section 3469 of the Revised Statutes, * * *'

Following a reference to the opinion of Solicitor General Maxwell, approved by Attorney General Olney (21 Op. 50), [51] and to the opinion of Attorney General Harmon, reaffirming it (21 Op. 264), the opinion stated (p. 20):

'No reasons have been advanced or suggest themselves justifying a change of the construction placed upon this section by my predecessors. A compromise is an adjustment or settlement by mutual concessions. The claim must in some way be doubtful. There must be room for the 'play of give and take.' For this reason the statement from the attorney in charge 'showing in detail the condition of such claim, and the terms upon which the same may be compromised,' is required. In the case of a collectible judgment there is no room for 'give and take,' no basis for a compromise; the concession is all on the one side, the side of the Government, which remits in place of compromising.'

In 23 Op. 631, Attorney General Knox approved an opinion prepared by Solicitor General Richards containing like views regarding the effect of section 3469. The question there was whether the Secretary of the Treasury had power under that section to accept an offer to compromise a claim of the United States for interest upon unpaid tax, bonus and rental due under a contract for taking fur seals in Alaska. Advising that section 3469 conferred such authority, Solicitor General Richards said (p. 633):

'In an opinion given January 17, 1900, I held, following Solicitor General Maxwell (21 Opin., 51), and Attorney General Harmon (21 Opin., 264, 266), that this section does not authorize the Secretary of the Treasury to compromise a claim which has been reduced to judgment, affirmed by the highest court, and is clearly collectible, because a compromise is an adjustment or settlement by mutual concession. The claim must in some way be doubtful. There must be room for the 'play of give and take.' In the case of a collectible judgment, which has been affirmed by the highest court, there is no room for 'give and take,' no basis for a compromise; the concession is all on the one side, the side of the Government, which remits in place of compromising.

'But in the case of this claim for interest, there are involved disputed questions of fact and of law, which if put in litigation might be decided the one way or the other. [52] The claim, therefore, is clearly one subject to compromise under this section.'

In 27 Op. 241, Attorney General Wickersham held that the Secretary of the Treasury had no authority under section 3469 to compromise a suit for a penalty incurred for violation of the Alien Contract Labor Law. Many previous opinions of the Attorney General were cited as distinguishing between the purely fiscal authority conferred by section 3469 to compromise 'claims' in favor of the United States, and the authority conferred by other statutes to remit or mitigate fines, penalties and forfeitures. Reaffirming the views expressed by Attorney General Evarts (12 Op. 543), that in enacting section 10 of the Act of 1863 (later incorporated in the Revised Statutes as section 3469), it was the purpose of Congress 'to enable the Government to realize the largest amount from money claims which might be of doubtful recovery or enforcement,' the opinion quoted the following remarks made on the floor of the Senate by Mr. Fessenden, who had introduced in that body the bill which subsequently became the Act of 1863, and who, in support of section 11 of the bill (afterwards section 10 of the Act), said (p. 244):

'Section 11 merely authorizes the Secretary of the Treasury, upon the report of the district attorney, or any special attorney, approved by the Solicitor of the Treasury, to compromise a claim. There are three several officers to act upon it. There must be a power to compromise claims somewhere. You can not bring every one of them to Congress. That is out of the question. There are a great many claims in favor of the United States which are like claims in favor of individuals, better compromised than left to stand; because it was a remark made by one of the shrewdest merchants I ever knew in our section of the country, that if a man who failed offered him anything, he always took his first offer; because, said he, you never get so good an offer afterwards, and he will live out of what he has in his hands as long as you put off compromising. I think it is so in a great degree with claims in favor of the United States. There is no power to compromise them now, and they lie for years. Here are three officers: first, the district attorney, or the special agent, if we have one; then [53] his recommendation has to be approved by the Solicitor of the Treasury; and third, by the Secretary of the Treasury. I see no possible way in which it could be fixed better, if you allow a compromise at all; and this shadowy idea of danger to the Government from compromising its old debts through three successive steps strikes me as rather imaginary; but, so far as these special agencies are concerned, I explained this morning what is the object of them.'

And as an additional reason why the penalty in question could not be compromised under section 3469, Mr. Wickersham stated (p. 251):

'It may be said, in this connection, that the papers accompanying your communication show that the arguments made in support of the offer of compromise are based upon the ignorance of the offending party as to the criminality of his act in prepaying the transportation of the alien laborers referred to, and not upon any real inability to pay the full amount of the penalty incurred, although the offender claims to be a poor man and that the infliction of the extreme penalty would be a great hardship and injustice to him.

'There are manifestly considerations to be addressed to the department of the Government charged with the administration of the criminal laws of the nation, and not to the department charged only, so far as section 3469, Revised Statutes, is concerned, with the collection of revenue, and whose duty, under that section, is to be exercised upon fiscal considerations alone.'

In 29 Op. 217, Attorney General Wickersham approved an opinion by Solicitor General Lehman wherein section 3469 was construed as having the effect given it by Attorney General MacVeagh in 17 Op. 213, supra. The questions there considered were (1) whether corporations having an annual net income of $5,000 or less were required by the Revenue Act of August 5, 1909, to file a tax return, and (2) whether the Commissioner of Internal Revenue had authority to accept an offer in compromise of the 50 per cent addition to the tax which the Act directed the Commissioner to assess in the event of a failure to file a return required by the Act. Answering the first question in the affirmative, Solicitor General Lehman concluded that the [54] Act required a tax return regardless of the amount of net income received by the corporation. As to the right to compromise the 50 per cent additional assessment, he held that authority to effect such a compromise was conferred upon the Secretary of the T reasury by section 3469 of the Revised Statutes. The latter conclusion was supported by little, if any, independent reasoning, but was based almost wholly upon the views of Attorney General MacVeagh hereinbefore quoted and upon the following language of the Supreme Court in Dorsheimer v. United States, 7 Wall. 166, 174-175:

'The power intrusted by law to the secretary was not a judicial one, but one of merecy, to mitigate the severity of the law. It admitted of no appeal to the Court of Claims, or to any other court. It was the exercise of his discretion in a matter intrusted to him alone, and from which there could be no appeal.'

As appears above, however, Mr. MacVeagh's opinion, if construed as holding that section 3469 authorized the compromise of a claim where there was no doubt of its entire and ready collectibility, was expressly overruled by Attorney General Harmon in 21 Op. 264, on the ground that it ignored the clear distinction between the compromise of a doubtful case and the remission of a penalty, forfeiture or disability; and an examination of the Dorsheimer case shows that the above quoted remarks of the Supreme Court were addressed to a statute which conferred upon the Secretary of the Treasury authority to mitigate or remit a fine, penalty or forfeiture, rather than to compromise a claim in favor of the United States.

The foregoing review of the opinions of my predecessors foreshadows the reply I must make to the question you propound. As repeatedly stated in those opinions, the word 'compromise' has a clear and well defined meaning and implies the making of mutual concessions in the settlement of claims of doubtful recovery. The authority to 'compromise' conferred by section 3469 can have no application, therefore, to a situation such as that here involved, where the claim has been judicially and finally determined and no doubt has been suggested of its entire collectibility. Any [55] uncertainty which might remain in that regard is fully dispelled by the analysis made by Solicitor General Phillips (16 Op. 617) of the Act of 1863, from which section 3469 was derived, as well as by the statement quoted by Attorney General Wickersham (27 Op. 241) from remarks on the floor of the Senate by the proponent of the bill which became the Act of 1863, regarding the purpose and scope of the original s tatute. The analysis and statement referred to unmistakably show that, in enacting the provisions here in question, Congress was concerned only with the interests of the United States and sought to provide a means for recovering as large a part as possible of moneys claimed by the Government which were of doubtful collectibility.

The contrary view taken in the opinion of Attorney General MacVeagh (17 Op. 213), and followed in the opinion of Solicitor General Lehman, approved by Attorney General Wickersham (29 Op. 217), manifestly disregards, not only the plain meaning of the text, but the legislative history, of the statute. It proceeds on the theory that the statute was enacted for the benefit of those against whom money claims are asserted by the United States, and was designed to relieve them of the payment of such part of the claims as the Secretary of the Treasury might determine, upon grounds of justice, equity and sound public policy, should not be exacted. While considerations of this character may doubtless be taken into account in determining whether a fine, penalty, or forfeiture shall be remitted or mitigated, as authorized, for example, by section 618 of the Tariff Act of 1922 (42 Stat. 987), or by section 709 of the Revenue Act of 1928 (45 Stat. 882), they have, in my opinion, no place in th e determination of whether claims in favor of the United States shall be compromised under section 3469.

In answer to your inqury, therefore, I have the honor to advise that you have no authority under section 3469 of the Revised Statutes to accept the offer of compromise made by the Great American Indemnity Company.

Respectfully,

WILLIAM D. MITCHELL.

Updated May 20, 2015