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10.

United States Attorney General Opinion, August 26, 1881

17 U.S. Op. Atty. Gen. 213

AUTHORITY OF THE SECRETARY OF THE TREASURY TO COMPROMISE CASES.

[213] In passing upon cases submitted to him for compromise, under sections 3229 and 3469, Revised Statutes, the Secretary of the Treasury, while he is not at liberty to act from motives merely of compassion or charity, may consider not only the pecuniary interests of the Government, but take into view general considerations of justice and equity and of public policy.

Hon. WILLIAM WINDOM

Secretary of the Treasury.

SIR:

In accordance with our verbal understanding, I have delayed until this time an answer to your note of May 9, last, inclosing a memorandum from Assistant Secretary [214] French upon the extent of your authority to compromise cases, and asking my opinion thereon.

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. While the language of the Revised Statutes is general, using only the word 'compromise,' it is supposed that the language of the original act incorporated into section 3229 of the Revised Statutes affords support for this opinion in using these words: 'All cases where it may appear to the Commissioner of Internal Revenue to be for the interest of the United States to compromise the same.' But I have not be en able to satisfy myself that, even if these words had been incorporated into the Revised Statutes, they would change what seems to me to be the natural meaning of the language used; nor am I able to discover sufficient basis for such construction in section 3469 of the Revised Statutes, providing that a report by a district attorney, or any special attorney or agent, having charge of any claim in favor of the United States, recommending that such a claim should be compromised, shall state in detail 'the condition of such claim,' and the terms upon which the same may be compromised. I do not see that any special import is to be attached to either of the expressions I have quoted, and I think they leave the question you ask to be decided upon general considerations. The grant of authority is, as has already been stated, general and comprehensive in its language. In the one case the Commissioner of Internal Revenue, with the advice and consent of the Secretary of the Treasury, may com promise any civil or criminal case arising under the internal revenue laws instead of commencing suit thereon, and with the advice and consent of the said Secretary, and with the recommendation of the Attorney General, he may compromise any such case after a suit thereon has been commenced. [215] Upon such report, as has already been mentioned, by a district attorney, or any special attorney or agent, having charge of any claim in favor of the United States, recommending a compromise, and upon the recommendation of the Solicitor of the Treasury, the Secretary of the Treasury is authorized to compromise such claim upon the terms recommended. In both cases it has been required that detailed statements of the claim and of the compromise made shall be placed upon file.

In construing these provisions, the first thought which naturally occurs to the mind is that Congress has placed ample safeguards around the exercise of this authority. It not only requires that the grounds of the action of each officer in each case shall be placed upon file and left open to inspection, but that, in cases in which suits are not pending, the Solicitor of Internal Revenue, the Commissioner of Internal Revenue, and the Secretary of the Treasury shall all concur before the compromise can be made. Where a suit is pending or the claim is in charge of counsel, such counsel or the Attorney General of the United States must also concur before such compromise can be effected.

The second thought which naturally occurs upon reading the provisions is, that if Congress had desired to impose any limit upon the considerations which the Secretary of the Treasury was at liberty to entertain in reaching his conclusion, it was very easy to do so. Congress having provided these safeguards with the greatest care, and not having imposed the limitation mentioned, I do not feel at liberty to do so by construction.

I do not fail to see that such discretion as I believe is lodged in the Secretary may be abused; but I do not think that any probable abuse of the discretion in question could be as serious to the public interests as the abuse of discretion lodged in him with reference to other and graver matters. Confidence must be reposed somewhere, and Congress has in many most important respects reposed almost unlimited confidence in the proper exercise of the discretion confided to the head of the Treasury Department.

I am also unable to imply from the provisions of the law under review any intention on the part of Congress that the [216] 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 see 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 Treasury D epartment, 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 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 department. 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.

Very respectfully, your obedient servant,

WAYNE MACVEAGH.