B-177172, DEC 14, 1972

B-177172, DEC 14, 1972

CIVILIAN EMPLOYEE - SALE OF RESIDENCE - EXTENSION OF TIME LIMIT DECISION ALLOWING AN EXTENSION OF TIME TO RICHARD H. KIPPEN FOR THE AUTHORIZATION OF EXPENSES INCURRED INCIDENT TO THE SALE OF HIS OLD RESIDENCE IN CONNECTION WITH HIS TRANSFER OF DUTY STATION. SINCE THE SALE OF THE RESIDENCE WAS NOT CONCLUDED WITHIN ONE YEAR AFTER TRANSFER, MR. KIPPEN'S CLAIM FOR REIMBURSEMENT WAS DISALLOWED UNDER OMB CIRCULAR NO. A-56. HOWEVER, THE NEGOTIATION OF A SALES CONTRACT WITHIN THE ONE YEAR PERIOD, EVEN THOUGH THE CONTRACT WAS SUBSEQUENTLY ABROGATED, IS SUFFICIENT TO SHOW A REASONABLE RELATIONSHIP BETWEEN THE TRANSACTION AND THE TRANSFER OF STATION TO ALLOW FOR AN EXTENSION OF TIME WITHIN WHICH TO CONCLUDE A SALE. ACCORDINGLY, THE REQUEST FOR A TIME EXTENSION MAY BE APPROVED AND THE PAYMENT OF INCIDENTAL EXPENSES AUTHORIZED.

TO MR. SECRETARY:

THIS WILL REFER TO THE LETTER OF SEPTEMBER 29, 1972, FROM THE ASSISTANT REGIONAL DIRECTOR FOR ADMINISTRATION, NORTHEAST REGION, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA), SUBMITTING THE CLAIM OF MR. RICHARD H. KIPPEN FOR REIMBURSEMENT OF EXPENSES INCURRED INCIDENT TO THE SALE OF HIS OLD RESIDENCE IN CONNECTION WITH HIS TRANSFER OF OFFICIAL STATION.

THE RECORD SHOWS THAT MR. KIPPEN TRANSFERRED FROM GLOUCESTER, MASSACHUSETTS, TO WOODS HOLE, MASSACHUSETTS, EFFECTIVE SEPTEMBER 1, 1970. THE SALE OF HIS RESIDENCE AT THE OLD DUTY STATION WAS NOT CONSUMMATED UNTIL JANUARY 31, 1972, OR FIVE MONTHS AFTER THE ANNIVERSARY DATE OF HIS TRANSFER. DUE TO THE FACT THE SALE TRANSACTION WAS NOT CONCLUDED WITHIN ONE YEAR AFTER HIS TRANSFER, MR. KIPPEN'S CLAIM FOR REIMBURSEMENT OF EXPENSES WAS DISALLOWED IN ACCORDANCE WITH PROVISIONS OF THE NOAA TRAVEL HANDBOOK WHICH ARE SUBSTANTIALLY THE SAME AS SUBSECTION 4.1E, OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-56. HIS SUBSEQUENT REQUEST FOR AN EXTENSION OF TIME WITHIN WHICH TO CONCLUDE THE SALE, FOR WHICH PROVISION IS MADE IN SUBSECTION 4.1E(2), SUPRA, WAS DENIED BY THE ASSISTANT ADMINISTRATOR FOR ADMINISTRATION ON MAY 8, 1972, AND, ON MR. KIPPEN'S REQUEST FOR RECONSIDERATION, AGAIN DENIED ON JUNE 8, 1972.

THE REQUEST FOR APPROVAL OF AN EXTENSION OF TIME WAS INITIALLY DENIED BY THE ASSISTANT ADMINISTRATOR FOR THE FOLLOWING REASON, AS EXPRESSED IN HIS MEMORANDUM OF MAY 8, 1972:

"WE HAVE MADE A THOROUGH REVIEW OF YOUR CASE TO DETERMINE WHETHER WE HAVE A LEGAL BASIS TO JUSTIFY APPROVAL OF YOUR REQUEST FOR AN EXTENSION. APPEARS THAT YOU REPORTED FOR DUTY AT YOUR NEW STATION ON SEPTEMBER 1, 1970, AND NEGOTIATED A CONTRACT PRIOR TO SEPTEMBER 1, 1971, THE DATE OF THE EXPIRATION OF THE ONE-YEAR PERIOD ON WHICH YOU WERE ELIGIBLE FOR AN EXTENSION OF TIME IN WHICH TO MAKE SETTLEMENT FOR YOUR HOME. HOWEVER, SINCE THAT PARTICULAR SALE WAS NEVER CONSUMMATED, IT CANNOT BE USED AS A BASIS TO APPROVE AN EXTENSION OF YOUR SETTLEMENT DATE."

IN SUPPORT OF THE DENIAL OF MR. KIPPEN'S REQUEST THE ASSISTANT ADMINISTRATOR CITED OUR DECISION, B-171882, APRIL 2, 1971. THAT DECISION HELD THAT AN EXTENSION OF TIME FOR THE PURCHASE OF A NEW RESIDENCE BEYOND THE ONE-YEAR LIMITATION REQUIRED BY SUBSECTION 4.1E, SUPRA, COULD NOT BE ALLOWED EVEN THOUGH THE EMPLOYEE HAD ENTERED INTO A SALE/PURCHASE CONTRACT DURING THE INITIAL YEAR BECAUSE THE PURCHASE WAS NOT ACTUALLY CONSUMMATED AND THE CONTRACT WAS TERMINATED PRIOR TO THE END OF THE YEAR.

IN MR. KIPPEN'S CASE THE RECORD SHOWS THAT ON AUGUST 11, 1971, HE EXECUTED A CONTRACT TO SELL HIS OLD RESIDENCE WHICH IS MARKED "VOID AUGUST 14, 1971." IN A MEMORANDUM DATED APRIL 20, 1972, MR. KIPPEN EXPLAINED THAT THE SALE WAS NOT CONSUMMATED "DUE TO THE FINANCIAL DIFFICULTY OF THE PROSPECTIVE BUYER."

ON DECEMBER 28, 1971, MR. KIPPEN EXECUTED ANOTHER SALES CONTRACT WHICH WAS SUCCESSFULLY CONSUMMATED BY FINAL SALE OF THE RESIDENCE ON JANUARY 31, 1972.

WE CALL YOUR ATTENTION TO OUR DECISION B-175781, JULY 24, 1972, 52 COMP. GEN., COPY ENCLOSED, IN WHICH WE SPECIFICALLY MODIFIED OUR DECISION B- 171882, SUPRA, AND HELD THAT AN AGENCY HEAD IS NOT PRECLUDED FROM GRANTING AN EXTENSION OF TIME FOR CONSUMMATING THE SALE OF A RESIDENCE IN A CASE WHERE A CONTRACT HAS BEEN ENTERED INTO DURING THE INITIAL YEAR AFTER TRANSFER BUT HAS BEEN CANCELLED PRIOR TO THE EXPIRATION OF THAT YEAR. NOTED THE APPLICABLE REGULATION IS SILENT AS TO ANY REQUIREMENT THAT A CONTRACT BE IN EXISTENCE AT THE EXPIRATION OF THE ONE-YEAR PERIOD. FURTHER HELD THAT THE NEGOTIATION OF A CONTRACT WITHIN ONE YEAR, EVEN THOUGH IT SHOULD BE ABROGATED, IS SUFFICIENT TO SHOW A REASONABLE RELATIONSHIP BETWEEN SUCH A TRANSACTION AND THE TRANSFER OF STATION TO PROVIDE JUSTIFICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO CONCLUDE A SALE.

SINCE THAT DECISION APPEARS APPLICABLE TO THE FACTS OF MR. KIPPEN'S CASE, YOUR AGENCY IS NOT PRECLUDED FROM APPROVING THE EXTENSION OF TIME REQUESTED BY MR. KIPPEN AND AUTHORIZING PAYMENT OF EXPENSES INCURRED INCIDENT TO THE SALE OF HIS RESIDENCE WHICH ARE OTHERWISE ALLOWABLE UNDER PROVISIONS OF SECTION 4 OF CIRCULAR A-56.

THE VOUCHER AND ATTACHMENT ACCOMPANYING YOUR LETTER ARE RETURNED AND THE VOUCHER IS FOR HANDLING IN ACCORDANCE WITH THE FOREGOING.