B-246718, May 1, 1992

B-246718: May 1, 1992

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Gardner was appointed to a position with HUD from the private sector for duty in Washington. Gardner was transferred from Washington. He treated Washington as though it were a temporary duty location. The only reason he maintained the apartment in Virginia was that it was less expensive than securing a hotel room during the periods he was at HUD headquarters. It is our view that his apartment in Virginia was the residence from which he regularly commuted to and from his duty station in Washington. /1/ Mr.

B-246718, May 1, 1992

DIGEST: A transferred employee, who maintained a leased apartment near his old permanent duty station, may not be reimbursed real estate sales expenses for a family residence distantly removed from his duty station based on claim that he commuted to and from the family residence to his permanent duty station on weekends, paid state taxes, and voted there. Under 41 C.F.R. Secs. 302-1.4(j) and 302-6.1 (1991), and our decisions, a family residence from which an employee travels to and from work only on weekends does not qualify that residence as a regularly commuting residence. Edwin I. Gardner:

This decision /1/ concerns the entitlement of Mr. Edwin I. Gardner to be reimbursed the expenses of selling his residence in Birmingham, Alabama, incident to his transfer from Washington, D.C., to Oklahoma City, Oklahoma, in April-May 1991. We conclude that he may not be reimbursed for the following reasons.

In April 1989 Mr. Gardner was appointed to a position with HUD from the private sector for duty in Washington, D.C. At that time he owned and lived in a residence in Birmingham, Alabama. Mr. Gardner moved into leased quarters in the Washington, D.C. area when he reported for duty and his family continued to live in their Birmingham residence.

In April 1991, Mr. Gardner was transferred from Washington, D.C., to Oklahoma City, Oklahoma. He moved his family to the Oklahoma City area and sold his residence in Birmingham, and claims residence sales expenses. He argues, in support of his claim, that, although he maintained an apartment in the Washington area, he considers his residence in Birmingham as his residence because he commuted between Birmingham and Washington, D.C., approximately every other weekend. Additionally, he pays Alabama state income taxes and votes in Alabama. Further, he did not move his family to Washington because his positional duties required him to travel extensively outside the Washington, D.C., area, and he treated Washington as though it were a temporary duty location. The only reason he maintained the apartment in Virginia was that it was less expensive than securing a hotel room during the periods he was at HUD headquarters.

The agency, on the other hand, considers his leased quarters in the Washington area as his commuting residence and has cited several decisions of this Office in support of that position. /2/ We concur with the agency view.

We stated in each of those decisions that the regulatory provisions governing this entitlement (currently 41 C.F.R. Secs. 302-1.4(j) and 302-6.1 (1991)), require, in order for an employee to be reimbursed for the sale of a residence, that it must be the place from which he regularly commutes to and from work at his old permanent duty station. Further, travel to and from a family residence distantly removed from an old duty station on weekends and holidays did not qualify that residence as a regularly commuting residence under the regulations. /3/

In the present case, the records show that Mr. Gardner did perform considerable travel for HUD during the 2-year period prior to his transfer. However, each of his travel vouchers identified his residence in connection with his official station in Washington as being an apartment in Virginia, and the schedule of expenses on the reverse side of the voucher indicates that he began his trips either from HUD headquarters, Washington, D.C., or his Virginia residence and indicates that he usually concluded his trips at his Virginia residence. Therefore, it is our view that his apartment in Virginia was the residence from which he regularly commuted to and from his duty station in Washington.

/1/ Mr. William H. Eargle, Jr., Authorized Certifying Officer, Department of Housing and Urban Development (HUD), Washington, DC.

/2/ Alfred Duane Neill, B-192898, Jan. 25, 1979; Jacques P. Evans, B-196471, Jan. 16, 1980; and Jerry O. Hays, B-197501, May 12, 1980.

/3/ See also, Donald R. Stacy, 67 Comp.Gen. 395 (1988), and decisions cited.

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