[Code of Federal Regulations]
[Title 22, Volume 1]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR17.5]

[Page 94-95]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 17_OVERPAYMENTS TO ANNUITANTS UNDER THE FOREIGN SERVICE RETIREMENT 
AND DISABILITY SYSTEM--Table of Contents
 
Sec. 17.5  Standards.

    (a) General. (1) Waiver of overpayment will not be allowed in any 
case prior to receipt and evaluation of a statement of financial 
responsibility, duly sworn by the recipient of the overpayment, except 
in those cases where the facts make it obvious that the individual has 
no capacity to repay. Such statement will be waived in the latter case.
    (2) Waiver of overpayment will not be allowed when overpayment has 
been made to an estate.
    (b) Fault. (1) Determinations of ``fault'' or the absence thereof, 
will be made according to the commonly understood and standard concepts 
of equity applicable thereto.
    (2) A prerequisite to waiver of overpayment shall be clear and 
convincing showing that the person from whom recovery would otherwise be 
made did not cause, or was not otherwise responsible for the 
overpayment, i.e., he or she performed no act of commission or omission 
that resulted in the overpayment. Pertinent consideration to be made in 
this area are:
    (i) Whether payment resulted from the individual's incorrect (not 
necessarily fraudulent) statement.
    (ii) Whether he or she knew the payment was erroneous and, if so, 
whether his or her subsequent failure to act resulted from desire or 
ignorance.
    (iii) Whether he or she failed to disclose material facts in his or 
her possession.

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    (iv) Whether he or she could have determined that the payment was 
erroneous.
    (c) Equity and good conscience. (1) ``Equity and good conscience'' 
as defined in equity and the commonly understood meaning thereof shall 
be attached to waiver determinations. In addition, the decision must be 
made whether the exercise of waiver of overpayment would be in 
opposition to the basic purpose of title VII of the Foreign Service Act 
(22 U.S.C. 1061, et seq.) and would injure the administration of such 
title.
    (2) The following guides will also be applied, as appropriate:
    (i) Waiver of overpayment may be granted when an individual by 
reason of receipt of the overpayment has: (a) Relinquished a valuable 
right; or (b) changed his or her position for the worse.
    (ii) Waiver of overpayment may be granted when the individual has 
consistently acted in good faith regarding the overpayment.
    (iii) Waiver of overpayment cannot be granted when the individual 
has been found to be at fault or if the overpayment has been obtained by 
fraud.