Principles of Federal Appropriations Law - US Government ...

Chapter 4
Availability of Appropriations: Purpose
(B-230691) or a “service fee” (64 Comp. Gen. 655), or that state law
provides that the charge shall not be construed as a tax (B-230691), or that
the local government has threatened to cut off access (66 Comp. Gen. 385).
The same analysis produced the same result in B-227388, Sept. 3, 1987, in
which a municipality tried to charge a federal agency a registration fee for
9-1-1 services.
The distinction between “vendor taxes” and “vendee taxes” discussed later
in this chapter, that is, the applicability or nonapplicability to the
government depending on the “legal incidence” of the tax, applies as well to
9-1-1 charges. When the legal incidence of a tax falls directly on the federal
government as the “vendee,” the tax is not payable unless expressly
authorized by Congress. 64 Comp. Gen. 655, 656–57 (1985). On the other
hand, if the legal incidence of the tax falls directly on a business enterprise
(the “vendor”), which is supplying the federal government as a customer
with goods or services, immunity does not apply. 61 Comp. Gen. 257 (1982).
Thus, in B-238410, Sept. 7, 1990, GAO considered the Arizona 9-1-1 statute,
found that it was a vendor tax and, distinguishing the prior 9-1-1 decisions,
concluded that it could be assessed against the federal government.
A final group of cases involves the installation of traffic signals. At one
point, GAO took the position, subsequently modified, that appropriated
funds could not be used to pay for or contribute to the installation of traffic
signals on public roads or highways, regardless of the resulting benefit to
the government. Traffic control, so the reasoning went, is a municipal
service financed by tax revenues the same as police or firefighting services,
for which payment by a federal agency is not permissible. 51 Comp.
Gen. 135 (1971); 36 Comp. Gen. 286 (1956).
A different situation was presented in 55 Comp. Gen. 1437 (1976). There, a
state highway bisected an Army installation and the Army wanted to install
a traffic light to regulate traffic at the intersection of the state highway and
a road on the Army facility. Local authorities had agreed to repair and
maintain the light if the Army would purchase and install it. Since the light
would be located on federal property and would be for the primary benefit
of the federal facility, even though it would regulate traffic on the state
highway as well, GAO distinguished the prior cases and concluded that the
Army could use its appropriations for the proposed expenditure.
In 1982, GAO modified the prior decisions and held that traffic signals at or
near a federal facility, where the federal facility is the primary beneficiary
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