B-226823, Aug. 22, 1988, 67 Comp.Gen. 585

B-226823, Aug. 22, 1988, 67 Comp.Gen. 585

Civilian Personnel - Relocation - Temporary Quarters - Actual Subsistence Expenses - Reimbursement - Eligibility: A transferred employee was authorized and reimbursed for temporary quarters subsistence expenses for 60 days, but the agency questions whether the quarters were temporary based upon the duration of the lease (6 months), the movement of household goods into the residence, the type of quarters (single family dwelling), the lack of clear and definite intent to seek permanent quarters, and the length of time the employee occupied the dwelling (1-1/2 years). We hold that the record supports a determination that, at the time he moved into the dwelling, the employee only intended to occupy it on a temporary basis. He attempted to negotiate a shorter-term lease, he made substantial efforts to locate a permanent residence, he moved his household goods into the residence but did not unpack most of them, and, later, he was uncertain as to whether to purchase a residence since he might be transferred again to another city. Under these circumstances, we conclude that the payment of temporary quarters was proper.

Carl A. Zulick - Temporary Quarters Subsistence Expenses:

This decision is in response to a request by Mr. Jerry K. Yarborough, Authorized Certifying Officer, Bureau of Land Management (BLM), United States Department of the Interior, for a decision as to the propriety of paying temporary quarters subsistence expenses to Mr. Carl A. Zulick, an employee of BLM, incident to a permanent change of official station. /1/ For the reasons stated later in this decision, we hold that the reimbursement of temporary quarters to Mr. Zulick was proper and in accordance with the applicable law and regulations.

BACKGROUND

In late 1984, Mr. Zulick transferred from Meeker, Colorado, to Denver, Colorado, and he was authorized reimbursement of temporary quarters expenses as part of his relocation expense reimbursement. Mr. Zulick signed a 6-month lease on a single family dwelling at 11730 West Atlantic
Avenue, Lakewood, Colorado, and he moved into the house on November 26,
1984.
His household goods were delivered to the dwelling on the following
day.

Mr. Zulick submitted a claim for reimbursement of temporary quarters for
a period of 60 days covering the period from November 26, 1984, through
February 10, 1985, and BLM paid the claim in the amount of $2,625.
However, the agency obtained additional information concerning the facts
surrounding Mr. Zulick's occupancy of this dwelling and seeks repayment of
the amount reimbursed to Mr. Zulick for temporary quarters on the grounds
that these quarters were permanent rather than temporary in nature.

The agency states that even though Mr. Zulick reports that he was looking
for permanent quarters while he occupied this house, he continued to
reside at that address after the initial 60-day period had expired.
The
agency contends that under the applicable provisions of the Federal Travel
Regulations and decisions rendered by this Office, these quarters were
permanent based upon the following factors: (1) the duration of the lease
(6 months); (2) the movement of household effects into the dwelling; (3)
the type of quarters occupied (a single family dwelling); (4) the lack of
a clear and definitive intent by the employee to seek permanent quarters;
and (5) the length of time he occupied these quarters (1-1/2 years).
Mr.
Zulick purchased a residence in Lakewood, Colorado, in March 1987.

In response to the contentions by BLM, Mr. Zulick states that prior to
his transfer, agency officials informed him that he could be reimbursed
for expenses incurred while occupying temporary quarters even if he lived
in a single family dwelling.
Mr. Zulick contends that the agency did not
inform him of any limitations on his entitlement until he submitted his
travel voucher for payment.
He says that it was his intent to occupy this
house only until he could locate a suitable single family residence.
argues that his search for a permanent residence was delayed when he
reported for duty at Denver due to 4 weeks of travel on business.
Mr.
Zulick states that he executed a 6 month lease, which he considered to be
a short-term lease, and he states that he attempted to negotiate a month-
to-month lease but was unable to do so. The information concerning the
negotiation of his lease was confirmed in a letter from Mr. Zulick's
former landlord.

With respect to the movement of his household effects into the house, Mr.
Zulick states that due to the type and nature of his belongings, i.e.,
beehives, large indoor trees, beekeeping and hobby supplies, a large
freezer filled with wild game, combustible materials, a boat, firearms,
and drafting and mechanical tools, he moved them into the dwelling rather
than place them in temporary storage.
Mr. Zulick reports that most of his
belongings were never unpacked while he lived in this house.

As to the type of temporary quarters occupied, Mr. Zulick argues that
paragraph 2-5.2d of the Federal Travel Regulations defines temporary
quarters as "any lodging obtained from private or commercial sources to be
occupied temporarily.
..." He states that this includes not only a motel
room or an apartment but also an unattached dwelling in a suburban
neighborhood.
In regard to an expression of his intent to seek a
permanent residence, Mr. Zulick reports that he employed realtors to
assist him in locating a permanent, single family residence suitable for
his needs, and this information is confirmed by a letter from a real
estate agent.
The employee also reports that, at the time his eligibility
for reimbursement of temporary quarters "was up," BLM was studying moving
his place of employment to Fort Collins, Colorado.
He states that this
discouraged his attempts to purchase a home but, even then, he continued
to seek new quarters pending the final outcome.
Mr. Zulick states that he
was acting cautiously since he had lost $17,000 on his previous home
because he moved when his former office was reorganized.

OPINION

The payment of temporary quarters subsistence expenses is governed by the
provisions of 5 U.S.C. Sec. 5724a(a)(3) (1982) and the implementing
regulations contained in chapter 2, part 5, of the Federal Travel
Regulations (FTR), incorp.
by ref., 41 C.F.R. Sec. 101-7.003 (1984).
Paragraph 2-5.2c of the FTR (Supp. 10, Nov. 14, 1983) provides that the
term "temporary quarters" refers to lodging obtained from private or
commercial sources for the purpose of temporary occupancy after vacating
the residence occupied when the transfer was authorized.
In making this
determination, the agency should consider such factors as the duration of
the lease, the movement of household effects into the quarters, the type
of quarters, expressions of intent, attempts to secure a permanent
dwelling, and the length of time the employee occupies the quarters.
See
Charles J. Wilson, B-187622, June 13, 1977.
See also FTR para. 2-5.2c.

This Office has consistently held that a determination as to what
constitutes temporary quarters is not susceptible of any precise
definition, and such a determination must be based upon the facts and
circumstances involved in each case.
The threshold determination as to
whether the quarters were initially temporary in nature is based on the
intent of the employee at the time he or she moves into the dwelling.
Charles L. Avery, B-179870, Sept. 26, 1974.

As to the duration of the lease, we have held that the execution of a 1-
year lease on a dwelling at the employee's new duty station is a clear
indication that the employee intends to occupy the rented quarters on
other than a temporary basis.
Johnny M. Jones, 63 Comp.Gen. 531 (1984),
affirmed on reconsideration, B-215228, Apr. 12, 1985; Richard W. Coon,
B-194880, Jan. 9, 1980.
In this case, Mr. Zulick negotiated a 6-month
lease
and later rented the house on a month to-month basis.
While we have held
that the execution of a 1-year lease on a dwelling by the employee at his
or her new duty station is a clear indication that the employee intends to
occupy the rented quarters on other than a temporary basis, generally, the
execution of a 6-month lease is considered to be short-term and,
therefore, is not a clear indication that the quarters were permanent in
nature.
See Saundra J. Samuels, B-226015, April 25, 1988.
See also
Wilson, supra. We therefore conclude that such actions do not demonstrate
an intent on his part to occupy the Atlantic Avenue property on a
permanent basis.

With respect to the movement of household effects into the dwelling, we
have held that such action is not, by itself, determinative of whether the
quarters were temporary or permanent.
See Wilson, supra. Here, Mr. Zulick
explains that due to the type and nature of his household goods, he moved
his personal belongings into the Atlantic Avenue dwelling rather than
place them in temporary storage.
He states that most of his belongings
were never unpacked during the period he lived in the house.
We conclude
that, under the circumstances, the movement of Mr. Zulick's household
effects into the residence does not, standing alone, warrant the
conclusion that he intended the dwelling to be his permanent residence at
the time he initially occupied the dwelling.
Wilson, supra.

In regard to the type of quarters occupied by Mr. Zulick, a single family
dwelling, neither FTR paragraph 2-5.2c nor our decisions preclude a
detached single family dwelling from constituting temporary quarters.

With respect to expressions of intent by Mr. Zulick in seeking permanent
living quarters, such expressions were clearly manifested when he made
intensive, definite, and substantial efforts, with the assistance of
realtors, to locate a permanent residence to purchase or lease.
See
Robert D. Hawks, B-205057, Feb. 24, 1982.
See also David R. McVeigh,
B-188890, Nov. 30, 1977, where the employee submitted no evidence of his
efforts to purchase or rent another home.

As to the length of time Mr. Zulick resided at the Atlantic Avenue
address, approximately 1-1/2 years, a presumption arises that occupancy of
the residence for this length of time makes such quarters permanent in
nature.
Paul P. Semola, B-167632, Aug. 20, 1969; John M. Bonvissuto,
B-164379, Aug. 21, 1968.
In Semola and Bonvissuto, the employees
continued
to reside in living quarters for a period in excess of 1 year.
However,
in neither case was there any evidence of any bona fide efforts by the
employees to vacate the claimed temporary quarters at any specific time
and, therefore, we held that the quarters were not temporary within the
meaning of the applicable law and regulations.

In the case before us, while we recognize that Mr. Zulick continued to
reside at the Atlantic Avenue address for about 1-1/2 years, his intensive
efforts to locate suitable permanent quarters, with the assistance of
realtors, over a protracted period of time, and the uncertainty caused by
the proposed transfer of his place of employment, clearly demonstrate that
he did not intend for the Atlantic Avenue property to be his permanent
residence.
Hence, we conclude that the presumption created by the
occupancy of this house for approximately 1 1/2 years is sufficiently
rebutted by the evidence to the contrary showing that such residence was
only temporary in nature.

CONCLUSION

The facts before us reasonably establish that, at the time Mr. Zulick
first occupied the single family dwelling on West Atlantic Avenue, he
intended to remain there only for a temporary period of time.
Therefore,
we conclude that the dwelling constituted "temporary quarters" for Mr.
Zulick for which he was entitled to reimbursement of temporary quarters
subsistence expenses.

/1/ Mr. Zulick is represented by Mr. James A. Ferguson, Jr., President, Local 1945, National Federation of Federal Employees.