BNUMBER:  B-261699
DATE:  October 25, 1996
TITLE:  Fort Polk Employees-Erroneous Payment of
Compensation-Amounts Withheld for Federal and State
Taxes-Waiver

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Matter of:Fort Polk Employees-Erroneous Payment of 
          Compensation-Amounts Withheld for Federal and State 
          Taxes-Waiver

File:     B-261699

Date:October 25, 1996

DIGEST

1.  An agency asks whether the gross amount of an overpayment of pay 
must be used to determine those cases that come within its $1,500 
waiver authority, when the agency intends to consider waiving only a 
specific amount less than $1,500.  The waiver statute, at 5 U.S.C.  sec.  
5584(a)(2)(A) (1994), limits the waiver authority of an agency head to 
claims "in an amount aggregating not more than $1,500."  The term 
"aggregate amount" is defined in 4 C.F.R.  sec.  91.2(j) (1996) to mean 
"the gross amount of the claim against the employee . . ."  Therefore, 
an agency head may grant waiver only where the gross amount of an 
employee's debt before deductions is $1,500, or less.

2.  Each of a group of employees received a single overpayment of 
compensation.  Because the administrative error occurred at the end of 
the calendar year, the agency was unable to correct the error during 
the year and had to report it as income for the year on the employee's 
W-2 statement and withhold monies for income taxes.  The employees 
were notified and were required to repay the gross amount of the 
overpayment, but recoupment did not occur until the following year.  
However, due to their individual income tax circumstances, most of 
them were unable to recover from the taxing authorities the amount 
withheld for income taxes on the overpayment.  The agency asks whether 
the amount withheld for income taxes may be waived because it is 
unrecoverable.  The application of the tax laws to an individual's 
income is a matter solely within the jurisdiction of the taxing 
authority, and an individual's income tax liability on the overpayment 
does not permit partial waiver of a debt not otherwise appropriate for 
waiver.

DECISION

This responds to a request for decision from the Director, Defense 
Finance and Accounting Service (Arlington, VA) (DFAS).[1]  The agency 
has submitted for waiver consideration the cases of seven civilian 
employees whose debts arose due to a single erroneous payment to each, 
in amounts ranging from approximately $1,550 to $2,000.[2]  In 
conjunction with those cases and others, DFAS asks whether it is 
appropriate to waive part of an employee's debt to the United States 
that is represented by the amount withheld from that payment for 
income taxes where the employee is required to repay the debt, but is 
unable to obtain a refund of the amount withheld for those taxes.  We 
conclude that it is not appropriate to waive part of a debt 
represented by income tax withholding, and partial waiver is denied in 
the seven cases presented here for consideration.

BACKGROUND

The DFAS report states that the Defense Accounting Office, Pensacola, 
encountered problems with its civilian pay system for the pay period 
ending December 10, 1994 (the last pay period for calendar year 1994 
for income tax purposes).  The problem was discovered on December 15, 
1994, and pay processing was stopped.  Corrections were made to the 
appropriate data base and final processing of pay was run on December 
18, 1994.  In spite of that effort, each of 306 civilian employees at 
Fort Polk, Louisiana, received single erroneous payments of salary 
during the period of December 20-22, 1994.[3]  Because of the time 
constraints associated with the approaching end of the calendar year, 
the Pensacola office focused its efforts on adjusting large-dollar 
overpayments in cases which could be readily corrected.  This involved 
pay transactions by electronic fund transfers for 18 employees whose 
overpayments exceeded $2,000 each.  However, this effort resulted in 
the 288 other employees to be treated differently because they 
received the overpayments by check and the Pensacola office was unable 
to correct the problem before the end of the calendar year.[4]  As a 
result, W-2 forms had to be issued to each of these 288 employees for 
calendar year 1994 showing the overpayments as taxable income for that 
year.

Recovery of the gross overpayment to each of these employees was 
completed during calendar year 1995.  Under Department of the Treasury 
regulations, any withholding errors which occur are to be settled by 
the employee filing a tax return.  When erroneous payments are 
recovered during a calendar year following the year in which the 
erroneous payments were made, such repayment is reportable on that 
following year's income tax return, thus permitting those affected 
individuals to recover the income taxes paid on the erroneous 
payments.

The DFAS states that, under authority of 26 U.S.C.  sec.  1341 (1994), 
individuals whose overpayments exceeded $3,000 might be made whole by 
claiming the repayment as a credit or deduction on their 1995 income 
tax return.  However, DFAS points out that only 2 of the 288 employees 
fell into this category, that the only remedy available to those whose 
overpayments were less than $3,000 is reporting of the repayment as a 
miscellaneous deduction on Schedule A of the Federal return, subject 
to a 2 percent of adjusted gross income threshold, and that many of 
these employees would not be able to meet the threshold.  As a result, 
DFAS believes that many of the 288 affected individuals will not be 
able to recover the amounts withheld for income taxes on the 
overpayments that had to be reported as income for calendar year 1994.  
Thus, the question is whether that portion of the debt due the United 
States represented by the amount withheld for income taxes may be 
waived because it is unrecoverable.

As an ancillary issue, DFAS asks what constitutes the amount of a debt 
for purposes of applying the agency's waiver threshold.  The DFAS 
states that this Office has not rendered a decision on the question as 
to whether the gross amount of an overpayment must be used in 
determining an agency's waiver authority when the agency intends only 
to consider waiver of the amounts withheld for income taxes.  The DFAS 
states that such amounts would be within the agency's $1,500 waiver 
authority in all 288 cases.  

OPINION

Section 5584(a) of title 5, United States Code (1994), provides that 
where collection of an overpayment "would be against equity and good 
conscience and not in the best interest of the United States," it may 
be waived in whole or in part.  However, section 5584(b) thereof, 
precludes the Comptroller General or the head of an agency from 
exercising waiver authority in any case where there is an indication 
of fraud, misrepresentation, fault, or lack of good faith on the part 
of any person having an interest in obtaining waiver of the debt.  As 
those provisions relate to heads of agencies, section 5584(a)(2)(A) 
provides that the maximum amount of debt in each case that may be 
considered for waiver "is in an amount aggregating not more than 
$1,500."  

Under the authority granted to the Comptroller General to prescribe 
standards for waiver,[5] the term "aggregate amount," as used in the 
waiver provisions, is defined in 4 C.F.R.  sec.  91.2(j) (1996) to mean 
"the gross amount of the claim against the employee . . . from whom 
collection is sought."  Under the definition, the term "aggregate 
amount" means the entire amount of the overpayment found due, before 
any repayment is made and without reduction for any required 
withholdings.[6]  

Erroneous payments usually arise as a result of mistakes by those who 
are charged with the administrative responsibility for making the 
payments.  Such is the situation described in the submission.  
However, where the payment made is in excess of the amount authorized 
to be paid, the government has the right to recover the excess amount.  
We have held that an employee who knows or should know that he or she 
may have received an overpayment should be prepared to return that 
overpayment, and collection would not be against equity or good 
conscience.[7] 

However, the DFAS raises the issue of whether that part of an 
employee's debt represented by unrecoverable amounts withheld for 
income taxes may be waived.  The waiver request is expressly limited 
to those amounts withheld for federal and state income taxes.

On this issue, we have held that application of the tax laws to an 
individual's income is a matter solely within the jurisdiction of the 
taxing authority.[8]  In this regard, we note that an individual's tax 
liability in any given year is solely dependent upon his own situation 
that year, and the amount withheld from an overpayment of compensation 
for income tax purposes is based on his individual W-4 declaration of 
exemptions.  Therefore, considering the many possible tax liability 
variables that may apply in individual cases, we do not believe that 
the individual income tax consequences permit partial waiver of a debt 
that does not otherwise meet the requirements for waiver.[9]

Accordingly, as the foregoing relates to the seven cases submitted 
here for consideration, partial waiver of their debts represented by 
the amount withheld for income taxes on the overpayments received is 
denied.

/s/Seymour Efros
for Robert P. Murphy
General Counsel        

1. Mr. Richard F. Keevey

2. The employees are:  David A. Armbruster; Arnold E. Brewer; Ida J. 
Lester; Thomas J. Poche; Dale E. Richmond; Bobbi Jo Stark; and Jani C. 
Whitty.

3. The range of debts for all 306 employees is $8.91 to $10,431.58.

4. According to agency records, DAO Pensacola received calls from 
approximately 50 percent of the affected employees during the period 
December 21 - 30, 1994, advising the agency that they had been 
overpaid.

5. 5 U.S.C.  sec.  5584(a)(2)(C) (1994).

6. Charles R. Ryon, Sr., B-234731, June 19, 1989; B-183430, Nov. 28, 
1975, and decisions cited.

7. Hawley E. Thomas, B-227322, Sept. 19, 1988; Dr. Joella Campbell, 
B-259660, June 8, 1994.

8. Richard C. Clough, 68 Comp. Gen. 326 (1989); B-168031, June 26, 
1970; Saburo Nishikawa, B-190531, Apr. 3, 1978; Herbert R. Frye, 
B-195472, Feb. 1, 1980; Mark F. Jones, B-202136, July 20,1981: and 
Charles R. Ryon, Sr., B-234731, supra.  

9. Richard C. Clough, 68 Comp. Gen. 326, supra.