type: other

jurisdiction: US

text: b' August 24, 2005\n\n\n\n\nFinancial Management\nDevelopment and Management of\nthe Army Game Project\n(D-2005-103)\n\n\n\n\n Department of Defense\n Office of Inspector General\n\n Constitution of\n the United States\n\n A Regular Statement of Account of the Receipts and Expenditures of all public\n Money shall be published from time to time.\n Article I, Section 9\n\x0c Additional Copies\n\n To obtain additional copies of this report, visit the Web site of the Department of\n Defense Inspector General at http://www.dodig.mil/audit/reports or contact the\n Secondary Reports Distribution Unit, Audit Followup and Technical Support at\n (703) 604-8937 (DSN 664-8937) or fax (703) 604-8932.\n\n Suggestions for Future Audits\n\n To suggest ideas for or to request future audits, contact Audit Followup and\n Technical Support at (703) 604-8940 (DSN 664-8940) or fax (703) 604-8932.\n Ideas and requests can also be mailed to:\n\n ODIG-AUD (ATTN: AFTS Audit Suggestions)\n Department of Defense Inspector General\n 400 Army Navy Drive (Room 801)\n Arlington, VA 22202-4704\n\n\n\n\nAcronyms\nAGP Army Game Project\nFMR Financial Management Regulation\nMOVES Modeling, Virtual Environments and Simulation\nNPS Naval Postgraduate School\nUSAF United States Air Force\nU.S.C. United States Code\n\x0c INSPECTOR G E N E R A L\n DEPARTMENT OF DEFENSE\n 400 ARMY NAVY DRIVE\n ARLINGTON, VIRGINIA 22202-4704\n\n\n\n\n August 24,2005\n\nMEMORANDUTvl FOR DEPUTY CHIEF OF NAVAL OPERATIONS SUPPLY,\n ORDNANCE AND LOGISTICS OPERATIONS\n NAVAL INSPECTOR GENERAL\n PRESIDENT, NAVAL POSTGRADUATE SCHOOL\nSUBJECT: Report on Development and Management of the A m y Game Project (Report\n NO. D-2005-103)\n\n\n\n We are providing this report for information and use. We considered\nmanagement comments on a draft of this report in preparing the final report.\n Comments on the draft of this report conformed to the requirements of DoD\nDirective 7650.3 and left no unresolved issues. Therefore, no additional comments are\nrequired.\n\n We appreciate the courtesies extended to the staff. Questions should be directed\nto Mr. Byron B. Harbert at (303) 676-7392 (DSN 926-7392) or Mr. Jeffrey A. Lee at\n(303) 676-7429 (DSN 926-7429). The team members are listed inside the back cover.\nSee .4ppendix D for the report distribution.\n\n By direction of the Deputy Inspector General for Auditing:\n\n\n\n\n d\n Pau . Granetto, CP.4\n Assis t Inspector General\n Defense Financial Auditing\n Service\n\x0c Department of Defense Office of Inspector General\nReport No. D-2005-103 August 24, 2005\n (Project No. D2004-D000FD-0146.000)\n\n Development and Management of the Army Game Project\n\n Executive Summary\n\nWho Should Read This Report and Why? The President of the Naval Postgraduate\nSchool, the Naval Postgraduate School Comptroller, and personnel in the Naval\nPostgraduate School Research Program who are responsible for the management and\nday-to-day operations of projects performed on a reimbursable basis should read this\nreport. The report discusses the management of the Army Game Project by the Naval\nPostgraduate School.\nBackground. In May 2000, the Assistant Secretary of the Army for Manpower and\nReserve Affairs and the President of the Naval Postgraduate School entered into a\nmemorandum of agreement. The memorandum of agreement called for the Naval\nPostgraduate School to develop a state-of-the-art video game for the Army. The Naval\nPostgraduate School engaged their Modeling, Virtual Environments and Simulation\n(MOVES) Institute to perform the research and development work. The Army\xe2\x80\x99s purpose\nfor having the game developed was to educate potential recruits on the Army\xe2\x80\x99s missions\nand functions and enhance recruiting opportunities. The game simulates the highly\ntechnological nature of modern U.S. Army warfare. The Army believed the game would\nstimulate interest and assist in meeting enlistment goals.\n\nIn March 2004, the Naval Postgraduate School received a memorandum from the Army\nthat cited allegations of project mismanagement. As a result, the Naval Postgraduate\nSchool management contacted the Naval Inspector General and requested they look into\nthe allegations raised by the Army. However, since the issues surrounding the\nallegations involved an Army organization and the project in question was funded by the\nArmy, the Naval Inspector General referred the issue to the Office of the Deputy\nInspector General for Auditing.\n\nResults. The MOVES Institute made 45 improper charges totaling nearly $500,000 to\nthe Army Game Project and an Air Force Project. Specifically, it charged Army Game\nProject expenses to the Air Force Project, overcharged the Army Game Project for\nsoftware licenses that benefited other projects, and misallocated contract labor costs\nbetween the Army Game Project and the Air Force Project. Consequently, the MOVES\nInstitute did not charge customers the proper amount for goods and services provided and\nviolated the provisions of 31 United States Code 1301(a). The Naval Postgraduate\nSchool should take actions to correct the improper charges, develop and implement\ncontrols to prevent future improper charges, and train Naval Postgraduate School\nmanagers in appropriations law and hold them accountable for full compliance\n(finding A).\n\nThe Naval Postgraduate School accepted a project order from the Army even though they\nlacked the capability to perform a major portion of the work on the project. The DoD\nFinancial Management Regulation requires that an activity accepting project orders\n\x0cperform a major portion of the work in-house to prevent the practice of one DoD\norganization acting as a general contracting agent for another DoD organization. As a\nresult, the Naval Postgraduate School violated the Financial Management Regulation\nrequirements on project orders and gave the appearance that they were acting as the\nArmy\xe2\x80\x99s general contractor. The Naval Postgraduate School should not accept project\norders if they do not have the resources to perform a major portion of the work ordered\nand should also monitor compliance with the Financial Management Regulation\n(finding B).\n\nInternal control was not adequate to effectively manage and safeguard resources at the\nMOVES Institute. As a result, appropriations law was violated, pilferable property was\nnot adequately safeguarded, travel regulations were not always complied with, and there\nwas the appearance of nepotism. The Naval Postgraduate School needs to develop new\ncontrols and fully implement existing controls to ensure that all resources are\nsafeguarded, to emphasize the need to comply with travel regulations, and to prevent\nemployees being assigned to either supervise or be supervised by family members.\nFurther, both the Navy and the Naval Postgraduate School should revise their guidance\non accountability over pilferable property to be consistent with DoD guidance\n(finding C). We also reviewed the management control program as it related to the\nMOVES Institute and the Army Game Project. The conditions described in findings A\nand C were the direct result of the control weaknesses discussed in Appendix A.\nImplementation of the recommendations in this report should prevent recurrence of the\nconditions.\n\nManagement Comments. The Navy concurred with the findings and recommendations;\ntherefore, no additional comments are required. See the Findings section and\nAppendix A of the report for a discussion of management comments and the\nManagement Comments section of the report for the complete text of the comments.\n\nManagement Actions. Throughout the audit we worked closely with the staff at the\nNaval Postgraduate School, and we commend the staff for their cooperation and\naggressive approach to implementing corrective actions.\n\n\n\n\n ii\n\x0cTable of Contents\n\nExecutive Summary i\n\nBackground 1\n\nOther Matters of Interest 2\n\nObjectives 2\n\nFindings\n A. Charges to Project Orders 3\n B. Capability to Perform Project Orders 8\n C. Internal Control 10\n\nAppendixes\n A. Scope and Methodology 15\n Management Control Program Review 15\n Prior Coverage 16\n B. Reconciliation of Army Game Project Funds 17\n C. General Guidance 18\n D. Report Distribution 20\n\nManagement Comments\n Department of the Navy 23\n\x0cBackground\n The audit was performed in response to a request by the Naval Inspector General.\n The Naval Inspector General referred allegations made by an Army organization\n regarding management of an Army-funded research and development project by\n the Naval Postgraduate School (NPS). The project and related issues involved the\n Army, Navy, and Air Force.\n\n Development of America\xe2\x80\x99s Army Game. In May 2000, the Assistant Secretary\n of the Army for Manpower and Reserve Affairs and the President of NPS entered\n into a memorandum of agreement for NPS to develop a state-of-the-art video\n game for the Army. NPS engaged the Modeling, Virtual Environments and\n Simulation Institute (MOVES), an institute within NPS, to perform the research\n and development work. The Army\xe2\x80\x99s purpose for having the game developed was\n to educate potential recruits on the Army\xe2\x80\x99s missions and functions and enhance\n recruiting opportunities. The game simulates the highly technological nature of\n modern U.S. Army warfare. Army officials believed the game would stimulate\n interest among potential recruits and assist in meeting enlistment goals.\n\n Allegations of Project Mismanagement. In March 2004, NPS received a\n memorandum from the Army citing allegations of project mismanagement.\n\n Air Force Project. In July 2003, the United States Air Force (USAF), Force\n Protection Battlelab, provided $470,000 to the MOVES Institute at NPS to\n develop computer software that would simulate a convoy force protection\n scenario. The Air Force planned to use the software as a training aid for USAF\n military personnel assigned to protect USAF equipment and personnel under\n transport. The convoy scenario was to be added to the existing Army Game\n Project (AGP) game software. Work on the Air Force Project was initiated in\n September 2003. In August 2004, Air Force terminated the project before\n completion because of licensing issues related to use of commercially developed\n software. The software was an essential component to developing the Air Force\n convoy scenario.\n Naval Postgraduate School. In 1945, Congress passed legislation to make NPS\n a fully accredited, degree-granting graduate institution. The school is comprised\n of four graduate schools, 14 departments, a center for executive education,\n three institutes, and many research centers. The school offers more than\n 40 programs of study, ranging from the traditional engineering and physical\n sciences to the rapidly evolving space science programs. The mission of the\n school is to provide relevant and unique advanced education and research\n programs in order to increase the combat effectiveness of U.S. and Allied armed\n forces and enhance the security of the United States.\n\n NPS Research Program and the MOVES Institute. The research program at\n NPS is comprised of NPS funded or reimbursable projects. Reimbursable\n projects are referred to as sponsored projects, which are projects undertaken by\n NPS faculty and staff members that are funded by an external organization. The\n Army Game and Air Force projects were sponsored projects. Research and\n\n\n\n 1\n\x0c development work for the AGP was performed by the MOVES Institute, an\n institute at NPS that reports to the Dean of Research.\n\n\nOther Matters of Interest\n The Navy concurred with the findings and recommendations. The actions taken\n by the Navy satisfy the intent of the recommendations and are fully responsive.\n Additional comments are not required. We would also like to commend the staff\n at NPS for their cooperation and aggressive approach to implementing corrective\n actions. See the Findings section and Appendix A of the report for a discussion\n of management comments and the Management Comments section of the report\n for the complete text of the comments.\n\n\nObjectives\n Our overall objectives were to evaluate allegations of project mismanagement by\n NPS of the AGP and to perform a reconciliation of funds expended and obligated\n against the project. We also reviewed the management control program as it\n related to the overall objectives. See Appendix A for a discussion of the scope\n and methodology, our review of the management control program, and prior\n coverage. See Appendix B for the reconciliation of funds expended and obligated\n against the project.\n\n\n\n\n 2\n\x0c A. Charges to Project Orders\n The MOVES Institute made 45 improper charges totaling nearly $500,000\n to the AGP and an Air Force Project. Specifically, the MOVES Institute\n charged AGP expenses to the Air Force Project, overcharged the AGP for\n software licenses that benefited other projects, and misallocated contract\n labor costs between the AGP and the Air Force Project. The improper\n charges occurred because:\n\n \xe2\x80\xa2 the Director of the MOVES Institute did not adhere to the\n requirements of 31 United States Code (U.S.C.) 1301(a),\n applicable provisions of the DoD Financial Management\n Regulation (FMR), and NPS internal policy;\n\n \xe2\x80\xa2 the Director of the MOVES Institute deliberately charged the\n Air Force appropriation while awaiting funds from the Army;\n\n \xe2\x80\xa2 NPS had not implemented controls to ensure that expenses\n were charged to the project benefited by the expenses; and\n\n \xe2\x80\xa2 the MOVES Institute did not have a methodology to allocate\n contract labor costs among benefited projects.\n\n Consequently, the MOVES Institute did not charge customers the proper\n amount for goods and services provided and violated the provisions of\n 31 U.S.C. 1301(a).\n\n\nGuidance on Managing Appropriated Funds\n Government Accountability Office (GAO) Appropriations Law Manual.\n Chapter 4 of Government Accountability Office, \xe2\x80\x9cPrinciples of Federal\n Appropriations Law,\xe2\x80\x9d third edition, Volume 1, January 2004, discusses 31 U.S.C.\n subsection 1301(a). 31 U.S.C. subsection 1301(a) requires that public funds be\n used only for the purposes for which they were appropriated. \xe2\x80\x9cIt prohibits\n charging authorized items to the wrong appropriation, and unauthorized items to\n any appropriation. Anything less would render congressional control largely\n meaningless.\xe2\x80\x9d Further, the guidance states, \xe2\x80\x9ctransfer between appropriations is\n prohibited without specific statutory authority, even where reimbursement is\n contemplated.\xe2\x80\x9d In addition, it specifies that \xe2\x80\x9cdeliberately charging the wrong\n appropriation for purposes of expediency or administrative convenience, with the\n expectation of rectifying the situation by a subsequent transfer from the right\n appropriation, violates 31 U.S.C. subsection 1301(a).\xe2\x80\x9d\n\n DoD Financial Management Regulation. DoD Regulation 7000.14-R,\n \xe2\x80\x9cDoD Financial Management Regulation,\xe2\x80\x9d Volume 14, \xe2\x80\x9cAdministrative Control\n of Funds and Antideficiency Act Violations,\xe2\x80\x9d October 2004 (as revised), \xe2\x80\x9cgoverns\n financial management by establishing and enforcing requirements, principles,\n standards, systems, procedure, and practices necessary to comply with financial\n management statutory and regulatory requirements applicable to the DoD.\xe2\x80\x9d The\n\n\n 3\n\x0c FMR requires that DoD entities \xe2\x80\x9climit the obligation and expenditure of funds\n provided to the purposes authorized by type of fund or account.\xe2\x80\x9d\n\n NPS Guidance on Management of Sponsor Funds. \xe2\x80\x9cAdministration and\n Management of Academic Sponsored Programs at the Naval Postgraduate\n School,\xe2\x80\x9d NAVPGSCOL Instruction 3900.1C, 26 April 2001, provides guidance\n on the administration and management of appropriated funds provided by other\n Government organizations for projects managed by NPS. The instruction requires\n that all sponsor funds be used to support the work statement of the proposal and\n not be utilized for other purposes. Funds cannot be \xe2\x80\x9cloaned\xe2\x80\x9d or exchanged\n between projects. Further, the guidance specifies the responsibilities of NPS\n managers associated with the administration and management of sponsored\n programs. The NPS manager in charge of a project funded by a sponsor is known\n as the principal investigator. The principal investigator is responsible for\n initiating and approving all direct costs for sponsored projects under his/her\n control, and for assuring that all expenditures initiated from a specific sponsored\n funding account are in direct support of the project defined in the approved\n proposal. The NPS Dean of Research has overall responsibility for assuring that\n NPS and sponsor requirements are met regarding the proper use of sponsored\n funds.\n\n\nAir Force Project\n The MOVES Institute improperly charged AGP expenses to the Air Force\n Project. Supporting documentation indicated that 40 expenses that benefited the\n AGP totaling $268,255 were charged to the Air Force Project. The Director of\n the MOVES Institute deliberately charged the Air Force appropriation while\n awaiting funding from the Army. The improper charges included expenditures\n related to NPS faculty and staff labor, contract and service costs, equipment\n purchases, travel, and indirect cost charges. Table 1 contains details related to the\n improper charges.\n\n\n Table 1. Improper Charges Made to the Air Force Project\n\n Quantity of Improper Amount of Improper\n Expenditure Category Charges Charges\n NPS Faculty & Staff Labor 11 $118,856\n Contract & Service Costs 7 104,796\n Equipment & Supplies 10 9,516\n Travel 10 11,130\n Indirect Cost 2 23,957\n Total Improper Charges 40 $268,255\n\n\n\n\n 4\n\x0cCharges for Software Licenses\n The MOVES Institute overcharged the AGP $231,618 for software licenses that\n benefited other projects in addition to the AGP. In December 2001, the MOVES\n Institute used a combination of AGP and other DoD funds to pay a software\n developer $200,000 for licenses authorizing use of the software for six projects,\n including the AGP, and $100,000 to upgrade the authorization for use in an\n unlimited number of projects. Associated costs for General Services\n Administration contracting service fees were $18,963. In January 2003, the\n MOVES Institute used AGP funds to pay the developer an additional $100,000\n for technical support services. Associated contracting service fees amounted to\n $6,321. The AGP was one of the six projects that used the software licenses.\n Table 2 shows the amounts charged to the AGP, the amounts that should have\n been charged, and the amounts of overcharges. Although a separate payment was\n made for unlimited use of the software, this cost did not bear any logical\n relationship to the AGP. Therefore, none of this cost is included in the table as a\n cost to be shared by the Army.\n\n.\n\n Table 2. Expenses for the Licenses and Technical Support Costs\n Amount Amount AGP\n Purchase AGP Should Have Amount of\n Item Amount Charged Been Charged Overcharge\n Licenses $318,963 $178,457 $35,440 $143,017\n Technical\n Support\n Fee 106,321 106,321 17,720 88,601\n Total $425,284 $284,778 $53,160 $231,618\n\n\nContract Labor\n The Director of the MOVES Institute misallocated contract labor costs between\n the AGP and the Air Force Project. Eight contractors worked on both the AGP\n and the Air Force Project where costs were misallocated. Total costs of three of\n the contractors were charged to the AGP, while total costs for the remaining five 1\n were charged to the Air Force Project. The Army and Air Force projects were\n funded by separate appropriations for different purposes. No attempt was made\n by the MOVES Institute to properly allocate the labor costs. Consequently, some\n projects were charged for work not done while other projects were not charged\n for work done.\n\n1\n The five improper charges to the Air Force Project for contract labor are also included in Table 1 as\n improper charges to Contract & Service Costs.\n\n\n\n 5\n\x0cCompliance with Laws and Regulations\n The Director of the MOVES Institute did not adhere to the requirements of\n 31 U.S.C. 1301(a), applicable provisions of the FMR, and NPS internal policy. In\n addition, the MOVES Director deliberately charged the Air Force appropriation\n while awaiting funds from the Army, NPS had not implemented controls to\n ensure that expenses were charged to the project benefited by the expenses, and\n the MOVES Institute did not have a methodology to allocate contract labor costs\n among benefited projects. NPS needs to remove the incorrect charges made to\n the Air Force Project and AGP and apply the correct charges to those projects.\n After corrections are made, NPS should return any unused funds to the Air Force\n and the Army. It should be noted that the associated adjustments to NPS\xe2\x80\x99\n accounting records may cause an Antideficiency Act violation. In addition, NPS\n needs to implement controls to ensure that expenses are charged to the applicable\n project. Those controls should include training NPS managers on appropriations\n law and holding them accountable for their actions. Training and accountability\n are critical to preventing a recurrence of this condition in the future.\n\n\nRecommendations and Management Comments\n A. We recommend that the President of the Naval Postgraduate School:\n\n 1. Return $268,255 of overcharges to the Air Force and $231,618 of\n overcharges to the Army Game Project plus any unobligated amounts.\n\n 2. Apply appropriate charges to projects that were undercharged.\n\n 3. Report to the Office of the Assistant Secretary of the Navy\n (Financial Management and Comptroller) any Antideficiency Act violations\n that were caused by necessary adjustments to the Naval Postgraduate\n Schools\xe2\x80\x99 official accounting records as a result of the 31 United States\n Code 1301(a) violations.\n\n 4. Develop and implement controls to ensure that all expenses are\n charged to the projects benefited in the correct amounts.\n\n 5. Develop and implement a methodology to properly allocate the cost\n of contract labor in cases where contractors are performing work on\n multiple projects.\n\n 6. Impose sanctions on Naval Postgraduate School personnel who\n violate appropriations law and/or related DoD, Navy, and Naval\n Postgraduate School guidance.\n\n 7. Train Naval Postgraduate School Institute Directors and other\n appropriate officials on the requirements of appropriations law.\n\n\n\n\n 6\n\x0c 8. Conduct periodic reviews of project charges to determine whether\nimplemented controls are adequate and functioning as intended.\n\nManagement Comments. The President of the Naval Postgraduate School\nconcurred with all the recommendations.\n\n\n\n\n 7\n\x0c B. Capability to Perform Project Orders\n NPS accepted a project order from the Army even though NPS lacked the\n capability to perform a major portion of the work on the project. The\n FMR requires that an activity accepting project orders perform a major\n portion of the work in-house to avoid the practice of one DoD\n organization acting as a general contracting agent for another DoD\n organization. NPS erroneously followed obsolete Navy guidance instead\n of following the FMR on project orders. As a result, NPS violated FMR\n requirements on project orders and appeared to be acting as the Army\xe2\x80\x99s\n general contractor.\n\n\nGuidance on Performing Project Orders\n DoD Financial Management Regulation. DoD Regulation 7000.14-R,\n \xe2\x80\x9cDoD Financial Management Regulation,\xe2\x80\x9d Volume 11A, \xe2\x80\x9cReimbursable\n Operations Policy and Procedures,\xe2\x80\x9d Chapter 2, \xe2\x80\x9cProject Orders,\xe2\x80\x9d March 1997, as\n revised through November 2002, states,\n Project orders shall be issued only to those DoD-owned establishments that are\n capable of performing substantially the work ordered. \xe2\x80\x9cSubstantially,\xe2\x80\x9d as used\n in this paragraph, means that the project order recipient shall incur costs of not\n less than 51 percent of the total costs attributable to rendering the work or\n services ordered. Total costs to render the work or services ordered include the\n costs of goods or services obtained from or provided by contractors. The\n provisions of this chapter are not intended in any way to authorize one\n DoD-owned establishment to act as a general contracting or purchasing agent\n for another entity.\n\nObsolete Navy Guidance. Defense Finance and Accounting Service-Cleveland\n(DFAS-CL) became the proponent for Navy financial matters in January 1991. DFAS-\nCleveland issued project order guidance (undated) in Naval Standard Operating\nProcedure 1000.3-M, \xe2\x80\x9cAppropriation, Cost and Property Accounting (Field).\xe2\x80\x9d The\ncontent of this manual was a combination of previous guidelines issued by the Office of\nthe Comptroller, Navy and guidelines issued by DFAS-CL. The Navy/DFAS manual\nwas superseded by the issuance of the guidance in the FMR discussed above. The\nNavy/DFAS manual defined in-house to \xe2\x80\x9c\xe2\x80\xa6also include contracts for technical support\nwhich are usable only to the performing activity in its accomplishment of the overall\nwork required by the issuer.\xe2\x80\x9d This provision is in contrast to the FMR requirement\nabove, which does not allow the inclusion of contracts for technical support in the\ndefinition of in-house. Although this guidance was not officially canceled until\nMay 2002, the issuance of the FMR criteria in March 1997 rendered this guidance\nobsolete.\n\n\n\n\n 8\n\x0cNPS Capability to Perform\n NPS accepted project orders from other DoD organizations, although it did not\n have the capability to substantially perform the work ordered. In performing the\n work ordered in the Army Game Project, 76 percent of the costs incurred were for\n goods or services obtained by contract.\n\n\nNPS Practice\n NPS followed obsolete Department of the Navy guidance rather than following\n applicable DoD guidance. NPS management was unaware of the specific FMR\n requirement of having the capability to perform at least 51 percent of the work\n within the organization in order to accept project orders. NPS needs to implement\n controls to ensure that FMR requirements are met in accepting and accomplishing\n project orders. NPS also needs to develop a methodology to monitor compliance\n with the FMR.\n\n\nRecommendations and Management Comments\n B. We recommend that the President of the Naval Postgraduate School:\n\n 1. Direct all Naval Postgraduate School organizations to accept\n project orders only when at least 51 percent of the work can be accomplished\n using NPS resources.\n\n 2. Direct the Comptroller of the Naval Postgraduate School to\n develop and implement a methodology for monitoring compliance with the\n DoD Financial Management Regulation provisions for project orders.\n Management Comments. The President of the Naval Postgraduate School\n concurred with all the recommendations.\n\n\n\n\n 9\n\x0c C. Internal Control\n Internal control was not adequate to effectively manage and safeguard\n resources at the MOVES Institute. Controls over property accountability,\n travel, and personnel assignments were ineffective or nonexistent because\n NPS managers did not place sufficient priority on implementing effective\n controls within the organization. As a result, pilferable property was not\n adequately safeguarded, instances of noncompliance with travel\n regulations occurred, and sons and daughters were assigned to work for\n their fathers.\n\n\nControl Over Pilferable Property\n The MOVES Institute did not maintain inventory records or other controls over\n pilferable property that had a value of less than $5,000. The Institute\xe2\x80\x99s property\n included laptop and desktop computers, cellular telephones, computer hard drives,\n and other pilferable technical equipment. Based on information provided by the\n NPS Director of Research, we estimated that at least 10% of items purchased by\n the MOVES Institute were pilferable. However, because most of these items had\n a value of less than $5,000, they were not adequately controlled. This lack of\n control over pilferable property became readily apparent when we attempted to\n follow up on an allegation that two laptop computers had been stolen from the\n MOVES Institute. There was no way to determine if the allegation had merit\n because the MOVES Institute did not maintain sufficient records for controlling\n the computers. Also, Command Evaluation, the NPS internal audit function,\n reported some of the same problems related to pilferable property in FYs 2003\n and 2004.\n\n\nCompliance with Pilferable Property Guidance\n DoD guidance requiring that records be maintained on all pilferable property,\n regardless of value, was not followed. Further, Navy and NPS guidance was\n vague in defining accountability requirements over pilferable property.\n Consequently, the Navy and NPS allowed individual managers the discretion of\n controlling pilferable property costing under $5,000. Navy guidance, Secretary of\n Navy Instruction 7320.10A, requires that accountable records be maintained on\n pilferable property valued at less than $5,000, but only if it is critical to the\n activity\xe2\x80\x99s business or mission and is hard to repair or replace. NPS Instruction\n 11016.4A requires that all property having an acquisition cost of less than $5,000\n be recorded and tracked in the Defense Property Accountability System, but only\n if the commanding officer determines that it is classified or sensitive. Further, the\n NPS instruction defines pilferable property as being property that is critical to\n fulfilling the mission or business objectives; hard to repair or replace; and\n portable and easily converted to personal use. However, neither the Navy nor the\n NPS Instructions define the criteria by which property should be judged for\n criticality to the mission or difficulty regarding repair or replacement.\n Consequently, the instructions are vague, not consistent with DoD guidance, and\n\n 10\n\x0c open to interpretation. Specific guidance related to pilferable property is in\n Appendix C.\n\n\nTravel Documentation\n Our review consisted of 56 of 286 vouchers related to trips funded by the AGP\n and Air Force Project. We identified problems with 9 of the 56 vouchers.\n Problems included missing travel receipt documents, lack of proper approvals,\n approval for payment of unsupported amounts claimed, and payment of\n unauthorized non-travel related expenses on one travel voucher. We were unable\n to review 230 of 286 trips that were funded by the AGP and Air Force Project\n because prior to an August 2003 revision, the FMR allowed travelers to maintain\n receipts supporting their travel vouchers. The 2003 FMR revision required that\n all travel supporting documentation be maintained in the office that certification\n occurred. However, NPS did not implement the revised policy and continued the\n former policy of allowing travelers to maintain supporting documentation. As a\n result, complete travel documentation was not available for personnel who were\n no longer employed at NPS.\n\n\nCompliance with Travel Guidance\n Travel regulations were not always followed by travelers and travel authorizing\n officials, NPS authorizing officials and travel payment personnel did not ensure\n that all vouchers were properly approved prior to payment, and internal NPS\n travel policies and procedures were not consistent with the FMR. Further, in\n annual reports issued between FY 2001-2004, Command Evaluation reported\n some of the same problems related to travel.\n\n Following Guidance. In some instances, travelers disobeyed travel regulations\n by claiming excess or unauthorized expenses and by self-approving a voucher. In\n other instances, travelers did not obtain approval of their vouchers. The travel\n payment office paid those vouchers instead of sending them back to the claimants\n for correction.\n\n NPS Guidance. NPS Instruction 4650.4E, 22 November 2002, requires travelers\n to retain all receipts for expenses for 4 years and 3 months. This requirement\n conflicts with the FMR requirement of 6 years and 3 months. See Appendix C for\n guidance related to travel.\n\n Defense Travel System. NPS recently implemented the Defense Travel System,\n whereby travel vouchers are submitted for payment electronically to the Defense\n Finance and Accounting Service. The Defense Travel System will not process\n travel vouchers for payment unless a proper approval has been accomplished.\n Consequently, we are not making a recommendation related to travel voucher\n approval.\n\n\n\n\n 11\n\x0c Collection of Overpayments. When we informed the NPS travel office of two\n overpayments, the travel office took immediate action to collect the\n overpayments.\n\n\nEmployment of Relatives\n Sons and daughters of MOVES Institute professors were temporarily assigned to\n work directly or indirectly for their respective fathers. NPS hired three\n individuals as summer student interns and a fourth individual was hired as a\n research associate. All were initially assigned to the Computer Science\n Department at the Graduate School for Operational and Informational Sciences.\n Subsequently, those individuals were temporarily re-assigned to work on various\n projects managed by the MOVES Institute. One individual was the son of the\n MOVES Institute Director, and the other three individuals were sons or daughters\n of NPS professors who were assigned to MOVES Institute projects. All four of\n the sons and daughters performed limited work on the MOVES Institute projects.\n In one instance, the son of the MOVES Institute Director was temporarily\n assigned to work for a professor who worked for the Director. When the\n professor chastised the son of the Director for misusing Government resources\n and dressing inappropriately, the Director criticized the professor. In two other\n instances, employees attended out-of-town conferences with their fathers. One\n conference, attended by a MOVES Institute official and his son, was charged to\n the AGP. When questioned about the need for the trip, NPS officials were unable\n to provide us with adequate justification. An Army official specifically informed\n the MOVES Institute that he could not justify funding a conference attendance by\n the MOVES official\xe2\x80\x99s son. Nevertheless, the MOVES official\xe2\x80\x99s son was\n subsequently authorized to attend the conference. Appendix C discusses general\n guidance related to employment of relatives.\n\n\nNPS Employee Assignment Process\n Although NPS had controls to ensure that employees were not permanently\n assigned to work under the supervision of relatives, NPS did not have controls\n over temporary assignments. NPS used an informal process that allowed the loan\n of employees to different work units as needs arose.\n NPS Initiatives. When we informed NPS management of the temporary\n assignments of relatives, the Director, NPS Human Resources Office, informed us\n that a formal policy would be developed and implemented at NPS to prevent the\n appearance of nepotism. The proposed policy is currently being coordinated\n through appropriate NPS management channels.\n\n\n\n\n 12\n\x0cConclusion\n The internal control deficiencies related to property accountability, travel, and\n managing employment of relatives\xe2\x80\x94as well as appropriated funds and FMR\n guidance, as discussed in findings A and B\xe2\x80\x94are indicative of an organization that\n needs to re-prioritize its efforts to implement effective internal control. Greater\n emphasis should be placed on requiring managers to develop and enforce an\n effective and comprehensive system of internal control to protect the\n Government\xe2\x80\x99s interests.\n\n\nRecommendations and Management Comments\n C.1. We recommend the President, Naval Postgraduate School:\n\n a. Strengthen internal control over pilferable property by:\n\n (1) Requiring that Naval Postgraduate School\n Instruction 11016.4A be revised to comply with Instruction 5000.64 and the\n DoD Financial Management Regulation.\n\n (2) Identifying, inventorying, and recording in accountable\n records all pilferable property.\n\n (3) Performing periodic reviews of pilferable property.\n\n (4) Identifying pilferable property as an assessable unit in the\n Naval Postgraduate School Management Control Program.\n\n b. Eliminate identified internal control weaknesses related to travel\n by:\n\n (1) Training all NPS personnel whose duties require travel on\n the provisions of travel laws and regulations.\n\n (2) Revising Naval Postgraduate School Instruction 4650.4E to\n comply with the DoD travel regulations. The revision should include\n requiring authorizing officials to retain travel documentation in the office\n where certification occurred for 6 years and 3 months.\n\n (3) Conducting periodic reviews of travel authorizations and\n paid vouchers.\n\n c. Develop a formal policy on employment of relatives that will:\n\n (1) Prohibit the assignment of employees to a relative, whether\n on a temporary or permanent basis.\n\n\n\n\n 13\n\x0c (2) Require potential conflicts of interest to be considered\nbefore assigning relatives to any position at the Naval Postgraduate School.\n\n (3) Require the Director, Naval Postgraduate School Human\nResources Office, approve all assignments, reassignments, and temporary\nassignments.\n\n (4) Require the Director, Naval Postgraduate School Human\nResources Office, to maintain an up-to-date list of all relatives employed at\nthe Naval Postgraduate School to be used in reviewing requested\nreassignments and personnel loans for approval.\n\n d. Request the Naval Audit Service to accomplish a comprehensive\naudit of the Naval Postgraduate School as soon as possible. The audit should\ninclude a top to bottom review of the School\xe2\x80\x99s system of internal control.\n\nC.2. We recommend that the Deputy Chief of Naval Operations Supply,\nOrdnance and Logistics Operations revise Secretary of Navy\nInstruction 7320.10A to comply with DoD Instruction 5000.64 and the DoD\nFinancial Management Regulation by requiring adequate accountability of\npilferable property, regardless of value.\n\nManagement Comments. The President of the Naval Postgraduate School and\nthe Director, Supply, Ordnance and Logistics Operations Division concurred with\nall the recommendations.\n\n\n\n\n 14\n\x0cAppendix A. Scope and Methodology\n We evaluated allegations of project mismanagement of the AGP by the MOVES\n Institute at NPS. In addition, we performed a reconciliation of funds expended\n and obligated against the project.\n\n The Army sponsored the project at a cost of more than $19 million. The project\n primarily involved an Army organization and NPS. During the audit, we also\n contacted an Air Force and another DoD organization. Further, we gathered\n related information from contractor personnel associated with the MOVES\n Institute.\n\n We examined accounting and funding records, contracts, travel documents,\n personnel files, inventory records, and other supporting documentation, provided\n by the Army and the Navy, for the period FY 2000 through FY 2004. Further, we\n interviewed MOVES Institute officials, the NPS Comptroller and Director of\n Research, Army officials, and contractor personnel. We also met with Air Force\n officials to discuss expenditures made against their project.\n\n We performed this audit from April 2004 through May 2005 in accordance with\n generally accepted government auditing standards.\n\n Use of Computer-Processed Data. We used data and reports generated from the\n Department Online Reporting System, Standard Accounting and Reporting\n System, Electronic Time and Attendance System, and Travel Manager System,\n but did not rely on the information in these systems to support our findings. We\n obtained source documentation, which validated the data we used from these\n systems.\n\n Government Accountability Office High-Risk Area. The Government\n Accountability Office has identified several high-risk areas in DoD. This report\n provides coverage of the DoD Financial Management and Contract Management\n high-risk areas.\n\n\nManagement Control Program Review\n DoD Directive 5010.38, \xe2\x80\x9cManagement Control Program,\xe2\x80\x9d August 26, 1996, and\n DoD Instruction 5010.40, \xe2\x80\x9cManagement Control Program Procedures,\xe2\x80\x9d\n August 28, 1996, require DoD organizations to implement a comprehensive\n system of management controls that provides reasonable assurance that programs\n are operating as intended and to evaluate the adequacy of the controls.\n\n Scope of the Review of the Management Control Program. We reviewed the\n adequacy of the Management Control Program as it relates to the MOVES\n Institute. Specifically, we determined whether NPS had procedures and controls\n covering the wide range of issues presented in this report. We also reviewed\n management\xe2\x80\x99s self-evaluation of those controls.\n\n\n\n 15\n\x0c Adequacy of Management Controls. We identified material management\n control weaknesses for NPS, as defined by DoD Instruction 5010.40. Some NPS\n management controls were not adequate for implementing Federal laws, DoD\n regulations, and NPS instructions. Further, in some instances, NPS managers\n disregarded controls that were already in place. The recommendations, if\n implemented, will correct the identified weaknesses and improve the overall\n management of sponsored programs. A copy of the report will be provided to the\n senior official responsible for management controls at NPS.\n\n Adequacy of Management\xe2\x80\x99s Self-Evaluation. NPS officials identified the\n MOVES Institute as an assessable unit. However, in its evaluation, the MOVES\n Director did not identify the specific material management control weaknesses\n identified by the audit because he did not consider the weaknesses important\n enough to report to higher management. NPS officials have included in their\n most recent Management Control Certification Statement a weakness pertaining\n to insufficient fiscal oversight on reimbursable program execution.\n\n Management Comments. NPS believes implementation of the\n recommendations addressed in this report should help strengthen internal control\n at NPS. In addition, to emphasize the importance of the management control\n program, the Deans and Chairs at NPS were briefed on the requirements and\n responsibilities of the program. Moreover, NPS has contracted with IBM\n Business Consultants to provide management control program awareness training.\n Also, NPS did identify pilferable property in their management control program\n as a weakness prior to our audit. Finally, the internal review function at NPS\n plans to conduct more reviews on sponsored program financial analysts and\n travel.\n\n\nPrior Coverage\n During the last 5 years, the Naval Audit Service has issued one report related to\n the Management of Sponsored Programs at NPS. Unrestricted Naval Audit\n Service reports can be accessed over the Internet at\n http://www.hq.navy.mil/navalaudit. Unrestricted DoD-OIG reports can be\n accessed at http://www.dodig.mil/audit/reports.\n\nNavy\n Naval Audit Service Audit Report No. N2003-0066, \xe2\x80\x9cManaging Sponsored\n Projects at the Naval Postgraduate School,\xe2\x80\x9d July 25, 2003\n\n\n\n\n 16\n\x0cAppendix B. Reconciliation of Army Game\n Project Funds\n\nReconciliation Process\n A little more than $19 million was provided to NPS by four separate Army\n organizations to fund research and development of the AGP. Using NPS\n accounting records, we performed a reconciliation of all funds expended and\n obligated against the AGP to determine the unobligated balance. As of\n May 20, 2004, $354,893 had not been obligated and was eligible to be returned to\n corresponding Army sponsors. The table below provides details showing the\n sources of funds, funding document numbers, amounts of funding, and the\n unobligated balances.\n\n\n Reconciliation of AGP Funds\n\n Issuing MIPR Unobligated\n Entity No. MIPR Number Amount Balance\n 1 MIPR0HNAVL1010 $ 3,500,000 $ 95,095\n 2 MIPR1CNPSL1006 2,030,000 59,165\n 3 MIPR01L1269001 3,570,000 18,936\n ASA/M&RA 4 MIPR0222811021 400,000 0\n 5 MIPR02228L1022 600,000 0\n 6 MIPR02228L1023 712,985 35,540\n 7 MIPR03271L1001 500,000 0\n 8 MIPR03237L1002 2,100,000 (30,742)\n Subtotal MIPR Amount/Unobligated Bal. $13,412,985 $177,994\n USAREC 9 MIPR3D03000077 4,000,000 176,892\n 10 MIPR3E03000092 1,387,109 0\n Subtotal MIPR Amount/Unobligated Bal. $ 5,387,109 $176,892\n FORSCOM 11 MIPR2MJR300001 150,000 7\n\n TACOM 12 MIPR3EPIC00731 49,996 0\n\n Total $19,000,090 $ 354,893\n MIPR - Military Interdepartmental Purchase Request\n USAREC \xe2\x80\x93 U.S. Army Recruiting Command\n FORSCOM \xe2\x80\x93 U.S. Army Forces Command\n TACOM \xe2\x80\x93 U.S. Tank and Automotive Command\n\n\n 17\n\x0cAppendix C. General Guidance\n\nGuidance on Pilferable Property\n DoD Instruction. DoD Instruction 5000.64, \xe2\x80\x9cDefense Property Accountability,\xe2\x80\x9d\n August 2002, provides a foundation for DoD property accountability, policies,\n procedures and practices. According to the instruction, record keeping must be\n established for pilferable items. It defines pilferable items as having a ready\n resale value or application to personal possession, resulting in the item being\n especially subject to theft.\n\n DoD Financial Management Regulation. DoD Regulation 7000.14-R, \xe2\x80\x9cDoD\n Financial Management Regulation,\xe2\x80\x9d Volume 4, \xe2\x80\x9cAccounting Policy and\n Procedures,\xe2\x80\x9d August 2000, with revisions through October 2003, prescribes the\n accountability requirements for DoD property, plant, and equipment. The FMR\n specifies that property, plant, and equipment considered subject to pilferage shall\n be documented in property accountability records or systems regardless of cost.\n\n Navy Guidance. Secretary of Navy Instruction 7320.10A, \xe2\x80\x9cDepartment of the\n Navy Personal Property Policies and Procedures,\xe2\x80\x9d April 2004, established the\n Navy\xe2\x80\x99s accountability requirements for personal property. The Navy instruction\n states accountable records shall be established and maintained for all personal\n property having an acquisition cost of $5,000 or more, as well as items below the\n $5,000 threshold that meet all of the following three criteria:\n\n \xe2\x80\xa2 pilferable,\n\n \xe2\x80\xa2 critical to the activity\xe2\x80\x99s business/mission, and\n\n \xe2\x80\xa2 hard to repair or replace.\n\n NPS Guidance. \xe2\x80\x9cPlant and Minor Property Management,\xe2\x80\x9d NAVPGSCOL\n Instruction 11016.4A, 11 June 2001, summarizes procedures for acquisition,\n control, accountability, and disposal of property at NPS. The instruction specifies\n that all minor personal property having an acquisition cost of less than $5,000 will\n be recorded and tracked in the Defense Property Accountability System if it has\n been determined to be sensitive and/or classified by the commanding officer, has\n a recovery period equal to or greater than 24 months, and does not meet all the\n capitalization criteria. It defines classified equipment as items requiring\n protection and control in the interest of national security and sensitive equipment\n as requiring protection and control due to statutory, regulatory, or mission\n requirements.\n\n\nGuidance on Travel\n DoD Financial Management Regulation. DoD Regulation 7000.14-R, \xe2\x80\x9cDoD\n Financial Management Regulation,\xe2\x80\x9d Volume 9, \xe2\x80\x9cTravel Policy and Procedures,\xe2\x80\x9d\n\n 18\n\x0c August 2004 (as revised), provides guidance on the responsibilities of individuals\n involved in the travel process. The FMR requires authorizing officials to certify\n travel claims for payment and to retain copies of travel vouchers and supporting\n receipts. The FMR requires that the documents be maintained in the office where\n certification occurred and be made available for random post payment reviews\n and audits for a period of 6 years and 3 months, in accordance with National\n Archives and Records Administration General Records Schedule Six-\n \xe2\x80\x9cAccountable Officers\xe2\x80\x99 Accounts Records.\xe2\x80\x9d Further, the FMR prohibits travelers\n from certifying and approving their own travel claims.\n\n Internal NPS Guidance. NPS Instruction 4650.4E, 22 November 2002, requires\n travelers to retain travel-related receipts for expenses for a period of 4 years and\n 3 months. The guidance further requires that authorizing officials review\n receipts.\n\n\nAccountability Guidance on Personnel Practices\n United States Code. 5 U.S.C. 3110, \xe2\x80\x9cEmployment of Relatives; Restrictions,\xe2\x80\x9d\n states that, \xe2\x80\x9ca public official may not appoint, employ, promote, advance, or\n advocate for appointment, employment, promotion, or advancement, in or to a\n civilian position in the agency in which he is serving or over which he exercises\n jurisdiction or control, any individual who is a relative of the public official. An\n individual may not be appointed, employed, promoted, or advanced in or to a\n civilian position in an agency if such appointment, employment, promotion, or\n advancement has been advocated by a public official, serving in or exercising\n jurisdiction or control over the agency, who is a relative of the individual.\xe2\x80\x9d\n Further, \xe2\x80\x9can individual appointed, employed, promoted, or advanced in violation\n of this section is not entitled to pay, and money may not be paid from the\n Treasury as pay, to an individual so appointed, employed, promoted, or\n advanced.\xe2\x80\x9d\n\n\n\n\n 19\n\x0cAppendix D. Report Distribution\n\nOffice of the Secretary of Defense\nUnder Secretary of Defense (Comptroller)/Chief Financial Officer\n Deputy Chief Financial Officer\n Deputy Comptroller (Program/Budget)\nDirector, Program Analysis and Evaluation\n\nDepartment of the Army\nAssistant Secretary of the Army (Manpower and Reserve Affairs)\nAuditor General, Department of the Army\nOffice of Economic and Manpower Analysis\n\nDepartment of the Navy\nAssistant Secretary of the Navy (Manpower and Reserve Affairs)\nVice Chief of Naval Operations\nDeputy Chief of Naval Operations Supply, Ordnance and Logistics Operations\nNaval Inspector General\nCommander, Naval Education and Training Command\nAuditor General, Department of the Navy\nPresident, Naval Postgraduate School\n\nDepartment of the Air Force\nAssistant Secretary of the Air Force (Financial Management and Comptroller)\nAuditor General, Department of the Air Force\nForce Protection Battlelab\n\nCombatant Commands\nInspector General, U.S. Joint Forces Command\n\nNon-Defense Federal Organization\nOffice of Management and Budget\n\n\n\n\n 20\n\x0cCongressional Committees and Subcommittees, Chairman and\n Ranking Minority Member\nSenate Committee on Appropriations\nSenate Subcommittee on Defense, Committee on Appropriations\nSenate Committee on Armed Services\nSenate Committee on Homeland Security and Governmental Affairs\nHouse Committee on Appropriations\nHouse Subcommittee on Defense, Committee on Appropriations\nHouse Committee on Armed Services\nHouse Committee on Government Reform\nHouse Subcommittee on Government Efficiency and Financial Management, Committee\n on Government Reform\nHouse Subcommittee on National Security, Emerging Threats, and International\n Relations, Committee on Government Reform\nHouse Subcommittee on Technology, Information Policy, Intergovernmental Relations,\n and the Census, Committee on Government Reform\n\n\n\n\n 21\n\x0c\x0cDepartment of the Navy Comments\n\n\n\n\n 23\n\x0c24\n\x0c25\n\x0c26\n\x0c27\n\x0c28\n\x0c29\n\x0c30\n\x0c31\n\x0c32\n\x0c33\n\x0c34\n\x0cTeam Members\nThe Department of Defense Office of the Deputy Inspector General for Auditing,\nDefense Financial Auditing Service prepared this report. Personnel of the\nDepartment of Defense Office of Inspector General who contributed to the report\nare listed below.\n\nPaul J. Granetto\nPatricia A. Marsh\nByron B. Harbert\nJeffrey A. Lee\nSamuel R. Mensch\nJason T. Hamilton\nWilliam F. Kissler\n\x0c'


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Venerdì 09 Agosto 2013 10:00 | Scritto da Eleonora Costa | Casi Giudiziari In caso di società di fatto tra coniugi, gli effetti del fallimento possono estendersi anche a quello dei due che ha contribuito a risanare lo stato di decozione dell’altro. E così la Cassazione, con la recente sentenza n. 16829/2013, ha respinto il ricorso di una donna, nei confronti della quale era stato dichiarato il fallimento, quale socio illimitatamente responsabile, unitamente alla società di fatto instaurata con il marito, per avere la prima provveduto, con l’impiego delle proprie finanze, a sanare molti dei debiti societari in essere. Secondo i giudici di legittimità, acclarato che la c.d. prova dell’esteriorizzazione del vincolo deve essere particolarmente rigorosa, e quindi in grado di escludere che l’intervento del coniuge sia animato esclusivamente da affectio coniugalis, vi sono elementi che necessariamente riconducono all’esistenza di una vera e propria società di fatto, sottoposta quindi alla disciplina del fallimento. Nel caso di specie i giudici avevano acclarato che la donna risultava cointestataria di ben tre conti correnti utilizzati per l’esercizio dell’impresa, che aveva prestato sistematicamente fideiussioni a garanzia delle esposizioni dei conti intestati al marito e, soprattutto, che era comproprietaria della maggior parte degli immobili utilizzati per la l’attività oltre ad essere attivamente impiegata nella gestione dell’attività medesima. Secondo i Giudici di Palazzo Cavour v’era dunque stato un positivo quanto rigoroso riscontro dell’effettiva costituzione di una società di fatto, effettuata proprio attraverso l’esame del comportamento assunto dal familiare, che, dietro la dichiarata volontà di venire incontro alle esigenze del coniuge, aveva tradito invece l’effettiva partecipazione alla gestione sociale, tale da aver ingenerato nei terzi un incolpevole affidamento in ordine all’esistenza di un vincolo societario. La truffa agli automobilisti per gli autovelox occultati
 Sabato 03 Agosto 2013 10:22 | Scritto da Eleonora Costa | Casi Giudiziari Occultare gli autovelox per rilevare le infrazioni al codice della strada è truffa e il sequestro dell’apparecchio è più che legittimo, anche se questo funziona regolarmente, con tanto di omologazione. I giudici di Palazzo Cavour non fanno sconto (almeno questa volta) alle amministrazioni locali e, dopo aver chiaramente etichettato come fattispecie penalmente rilevante la condotta di chi, come nel caso di specie, “infrascava” le odiate macchinette affinché non venissero gabbate dagli ignari automobilisti, ha respinto il ricorso volto ad ottenere il dissequestro dell’apparecchio perché appartenente a persona estranea al reato. Secondo la Cassazione, infatti (Sentenza n. 22158/2013), oggetto del sequestro preventivo può essere qualsiasi bene, a chiunque appartenente, purché esso sia, anche indirettamente, collegato al reato e, ove lasciato in libera disponibilità, idoneo a costituire pericolo di aggravamento o di protrazione delle conseguenze del reato medesimo ovvero di agevolazione di ulteriori fatti penalmente rilevanti. E gli autovelox, precisano gli ermellini, ben si prestano, proprio in ragione del nesso di interdipendenza con la fattispecie criminosa, ad essere assoggettati al vincolo reale, sia quale corpo del reato (mediante essi veniva consumata la truffa) che quale cosa pertinente al reato, la cui libera disponibilità può agevolare la commissione di altre condotte della stessa specie. Agevolazione prima casa anche per la donazione
 Martedì 30 Luglio 2013 14:20 | Scritto da Eleonora Costa | Casi Giudiziari L’immobile ricevuto in donazione non fa perdere l’agevolazione prima casa in tema di imposta di registro. Con un sospiro di sollievo i contribuenti hanno accolto il recente pronunciamento della Corte di Cassazione, la cui Sezione Tributaria, il 26 giugno scorso, con sentenza n. 16077, ha riconosciuto l’agevolazione fiscale anche in caso di trasferimento a titolo gratuito. La fattispecie riguardava un contribuente che aveva ricevuto per donazione un immobile adibito ad abitazione principale, immobile successivamente rivenduto prima del quinquennio. Senonché, entro l’anno dall’alienazione l’uomo aveva ricevuto in donazione un altro immobile, adibito sempre ad abitazione principale, così perdendo – secondo l’Ufficio – l’agevolazione della prima casa per aver venduto l’immobile prima del decorso dei 5 anni dal suo acquisto senza ricomprarne un’altro entro l’anno successivo. Secondo l’Agenzia delle Entrate, infatti, per atto di “riacquisto” doveva intendersi esclusivamente un atto di acquisto a titolo oneroso. Secondo la Cassazione, invece, il riacquisto ben poteva comprendere sia atti a titolo oneroso che negozi a titolo gratuito, nulla dicendo il predetto termine in merito alla onerosità o meno del contratto stipulato, facendo riferimento unicamente agli effetti reali del negozio giuridico. Specifica, ad abundantiam, la Suprema Corte che il credito d’imposta in questione non avrebbe senso nell’ipotesi in cui il successivo atto di riacquisto fosse solo a titolo oneroso; la norma infatti concede il credito d’imposta in relazione all’imposta di registro pagata su atti di acquisto, avvenuti entro un anno dall’alienazione dell’immobile, a qualsiasi titolo. Sono comunque usurari gli interessi di mora che superano il tasso soglia
 Lunedì 24 Giugno 2013 12:26 | Scritto da Eleonora Costa | Casi Giudiziari Anche gli interessi di mora, come quelli dovuti per omesso o ritardato pagamento di un mutuo ipotecario, possono superare la soglia antiusura e quindi essere dichiarati illegittimi e soggiacere alle note conseguenze, civili e penali. Così si è espressa una recente sentenza della Corte di Cassazione (sent. 350/2013) relativamente al caso di una donna che aveva acquistato la propria casa con un contratto di mutuo ipotecario e che ne aveva denunciato l’illegittimità per aver gli interessi superato la soglia del tasso usurario. Osservano i giudici di legittimità che il riferimento, contenuto nell’art. 1, comma 1, del decreto legge 394 del 2000 (disposizioni in materia di usura), agli interessi “a qualunque titolo convenuti” rende plausibile – senza necessità di specifica motivazione – l’assunto secondo cui il tasso soglia riguarda anche gli interessi moratori. Perciò, stabilisce ora la sentenza 350, ai fini dell’applicazione dell’art. 1815 (non debenza degli interessi usurari) cc e dell’art. 644 cp (punibilità del reato di usura) si considerano usurari gli interessi che superano il limite stabilito nella legge al momento in cui sono promessi o comunque convenuti a qualunque titolo e, quindi, anche a titolo di interessi moratori.
 Lunedì 17 Giugno 2013 09:26 | Scritto da Eleonora Costa | Casi Giudiziari Triste realtà è ormai diventata quella dei tanti titolari di conti correnti bancari che, non riuscendo più per varie vicende, anche personali, a ripianare l’affidamento concesso dalla banca, si vedono notificare un decreto ingiuntivo immediatamente esecutivo e, a distanza di soli 10 giorni, il pignoramento della casa. Comincia però a farsi strada un orientamento giurisprudenziale, come quello battuto dal Tribunale di Novara con la sentenza del 26 febbraio scorso, secondo il quale la Banca, che ha ottenuto l’ingiunzione di pagamento grazie agli estratti conto, in fase di opposizione è gravata dall’onere di produzione in giudizio di tutti i documenti giustificativi fondanti la pretesa creditoria, dal contratto fino agli estratti conto emessi fin dall’apertura del rapporto, pena la sospensione dell’efficacia esecutiva del decreto. Questo è quanto successo, infatti, ad una banca del novarese, subentrata ad altro istituto di credito a seguito di varie vicende societarie, che aveva ottenuto un decreto ingiuntivo immediatamente esecutivo sulla base del solo saldo debitore finale; la banca, infatti, non era stata in grado di produrre, in fase di opposizione, tutta la documentazione anteriore, “non essendovi l’obbligo di conservazione della documentazione per un periodo superiore a 10 anni”. Il Tribunale, invece, ha ritenuto che l’onere di conservazione delle scritture contabili è ben altra cosa rispetto alla prova del credito azionato, laddove è soltanto l’esame di tali atti a consentire di verificare sia la regolarità della forma, che la disciplina applicabile al caso concreto, condizioni del rapporto comprese. Dunque provvisoria esecuzione sospesa e porte aperte ad un giudizio ordinario, vera boccata d’ossigeno per il correntista.
 Lunedì 03 Giugno 2013 13:33 | Scritto da Eleonora Costa | Casi Giudiziari Lei parla al telefono con la sorella in casa del fidanzato e lui la ascolta con un registratore; la donna lo denuncia e lui viene condannato. È arrivata fino alla Cassazione la curiosa vicenda di un uomo che aveva posizionato il registratore in casa propria per ascoltare le conversazioni della compagna con la sorella di lei; nei primi due gradi di giudizio i giudici avevano condannato l’uomo per essersi procurato indebitamente notizie relative ad un colloquio intercorso tra altre persone. Ricorre in cassazione l’imputato sostenendo che il posizionamento del registratore era avvenuto nella propria abitazione (luogo che non poteva considerarsi certo privata dimora della donna) e che, dunque, non vi erano i presupposti per una condotta penalmente rilevante. Ma gli Ermellini non sono della stessa opinione: il concetto di “vita privata” – specifica la Corte di Cassazione nella recente sentenza n. 8762/2013 - deve riferirsi a qualsiasi atto o vicenda della persona in luogo riservato. Nell’abitazione dell’imputato si svolgevano fasi significative della vita privata della donna e tale dovevano ritenersi anche quei momenti di intima affettività intercorsi con la sorella. La vittima, secondo i giudici di legittimità, era fiduciosa della tutela della sua privacy proprio perché si trovava in un luogo nel quale si svolgevano episodi significativi della propria “vita privata”; conseguentemente era particolarmente esposta e vulnerabile nei confronti di un comportamento subdolo e sleale tenuto dalla persona a cui era affettivamente legata. Ricorso respinto, dunque, e condanna alle spese di giudizio.
 Sabato 25 Maggio 2013 14:25 | Scritto da Eleonora Costa | Casi Giudiziari Un uomo entra in banca con una pistola giocattolo, rapina 11mila euro e viene condannato per rapina aggravata dall’uso dell’arma da fuoco. La Corte d’Appello conferma la sentenza del primo giudice e l’imputato arriva in Cassazione, dove, però, le sorti non cambiano. La Corte ribadisce, infatti, che sussiste la circostanza aggravante dell’uso delle armi anche se la minaccia è realizzata con l’uso di una pistola giocattolo (sentenza n. 7973/2013). Secondo gli ermellini portare con sé un’arma giocattolo priva del tappo rosso non è reato, ma, vista la somiglianza con un’arma vera, è certamente un elemento costitutivo o una circostanza aggravante nel caso di furto, rapina, minaccia, violenza a pubblico ufficiale o nel caso di delitti di natura elettorale o contro la sicurezza della navigazione aerea. Nessuna attenuante, dunque, per il ricorrente, che vede la propria condanna divenire irrevocabile.