B-162124, AUGUST 14, 1967, 47 COMP. GEN. 121

B-162124: Aug 14, 1967

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EVEN THOUGH THE EMPLOYEE IS THE SOLE SOURCE OF THE BROTHER'S SUPPORT. THE DEPENDENCY IS RECOGNIZED FOR INCOME TAX AND INSURANCE PURPOSES. RIEDINGER POINTS OUT THAT HIS BROTHER IS HIS DEPENDENT IN FACT AND THAT HE IS THE SOLE SOURCE OF HIS BROTHER'S SUPPORT. THE FACT OF DEPENDENCY IS SAID TO HAVE BEEN RECOGNIZED BY THE INTERNAL REVENUE SERVICE. RIEDINGER HAS BEEN ADVISED BY HIS ATTORNEY THAT HIS BROTHER'S RELATIONSHIP AS A DEPENDENT IS SUCH THAT MR. THERE WOULD APPEAR TO BE LITTLE DOUBT THAT THE EMPLOYEE'S BROTHER IS FACTUALLY A DEPENDENT AND A MEMBER OF HIS HOUSEHOLD. 5 U.S.C. 5724 PROVIDES. WE DO NOT APPEAR TO HAVE HAD OCCASION TO DECIDE WHETHER A DEPENDENT BROTHER MAY BE CONSIDERED A MEMBER OF AN EMPLOYEE'S IMMEDIATE FAMILY.

B-162124, AUGUST 14, 1967, 47 COMP. GEN. 121

OFFICERS AND EMPLOYEES - DEPENDENTS - STATUS - BROTHERS THE DEFINITION OF "IMMEDIATE FAMILY" IN SECTION 1.2D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 EXCLUDING THE RELATIONSHIP OF BROTHER, AN EMPLOYEE MAY NOT BE REIMBURSED FOR THE TRAVEL AND TRANSPORTATION EXPENSES INCURRED FOR HIS BROTHER INCIDENT TO A CHANGE-OF-DUTY STATION, EVEN THOUGH THE EMPLOYEE IS THE SOLE SOURCE OF THE BROTHER'S SUPPORT, AND THE DEPENDENCY IS RECOGNIZED FOR INCOME TAX AND INSURANCE PURPOSES, ATTENDANCE AT A GOVERNMENT SCHOOL FOR DEPENDENTS, AND THAT THE EMPLOYEE MIGHT BE HELD RESPONSIBLE IN CERTAIN LEGAL ACTIONS STEMMING FROM THE ACTS OF THE BROTHER.

TO THE ATTORNEY GENERAL, AUGUST 14, 1967:

WE REFER TO LETTER OF JULY 21, 1967, REFERENCE CO 615-C, FROM THE ASSOCIATE COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ASKING OUR DECISION WHETHER A DEPENDENT BROTHER OF MR. CARL J. RIEDINGER, AN EMPLOYEE OF THE SERVICE ASSIGNED TO SAN JUAN, PUERTO RICO, MAY BE CONSIDERED A MEMBER OF THE EMPLOYEE'S IMMEDIATE FAMILY FOR TRAVEL AND TRANSPORTATION PURPOSES WITHIN THE PURVIEW OF SECTION 1.2D, BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966.

MR. RIEDINGER POINTS OUT THAT HIS BROTHER IS HIS DEPENDENT IN FACT AND THAT HE IS THE SOLE SOURCE OF HIS BROTHER'S SUPPORT. THE FACT OF DEPENDENCY IS SAID TO HAVE BEEN RECOGNIZED BY THE INTERNAL REVENUE SERVICE, BY THE GOVERNMENT FOR THE PURPOSE OF ATTENDANCE BY HIS BROTHER AT A GOVERNMENT'S SCHOOL FOR DEPENDENTS, AND BY THE AETNA INSURANCE COMPANY FOR THE PURPOSE OF THE EMPLOYEE'S GROUP INSURANCE. ALSO,MR. RIEDINGER HAS BEEN ADVISED BY HIS ATTORNEY THAT HIS BROTHER'S RELATIONSHIP AS A DEPENDENT IS SUCH THAT MR. RIEDINGER MIGHT BE HELD RESPONSIBLE IN CERTAIN LEGAL ACTIONS STEMMING FROM HIS BROTHER'S ACTS.

THERE WOULD APPEAR TO BE LITTLE DOUBT THAT THE EMPLOYEE'S BROTHER IS FACTUALLY A DEPENDENT AND A MEMBER OF HIS HOUSEHOLD.

5 U.S.C. 5724 PROVIDES, AMONG OTHER THINGS, AS FOLLOWS:

"/A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND WHEN THE HEAD OF THE AGENCY CONCERNED OR HIS DESIGNEE AUTHORIZES OR APPROVES, THE AGENCY SHALL PAY FROM GOVERNMENT FUNDS---

"/1) THE TRAVEL EXPENSES OF AN EMPLOYEE TRANSFERRED IN THE INTEREST OF THE GOVERNMENT FROM ONE OFFICIAL STATION OR AGENCY TO ANOTHER FOR PERMANENT DUTY, AND THE TRANSPORTATION EXPENSES OF HIS IMMEDIATE FAMILY *

UNDER A DELEGATION OF AUTHORITY FROM THE PRESIDENT, THE DIRECTOR, BUREAU OF THE BUDGET IN CIRCULAR NO. A-56, HAS DEFINED THE TERM "IMMEDIATE FAMILY" AS FOLLOWS:

"1.2D. -IMMEDIATE FAMILY- MEANS ANY OF THE FOLLOWING NAMED MEMBERS OF THE EMPLOYEE'S HOUSEHOLD AT THE TIME HE REPORTS FOR DUTY AT HIS NEW PERMANENT DUTY STATION: SPOUSE, CHILDREN (INCLUDING STEPCHILDREN AND ADOPTED CHILDREN) UNMARRIED AND UNDER TWENTY-ONE YEARS OF AGE OR PHYSICALLY OR MENTALLY INCAPABLE OF SUPPORTING THEMSELVES REGARDLESS OF AGE, OR DEPENDENT PARENTS OF THE EMPLOYEE AND OF THE EMPLOYEE'S SPOUSE.'

WE DO NOT APPEAR TO HAVE HAD OCCASION TO DECIDE WHETHER A DEPENDENT BROTHER MAY BE CONSIDERED A MEMBER OF AN EMPLOYEE'S IMMEDIATE FAMILY. HOWEVER, IN A RECENT DECISION, B-160342, DECEMBER 27, 1966, A COPY OF WHICH IS ENCLOSED, WE DID REVIEW THE SEVERAL STATUTORY AND REGULATORY PROVISIONS RELATING TO THE TRANSPORTATION AT GOVERNMENT EXPENSE OF DEPENDENTS AND MEMBERS OF THE IMMEDIATE FAMILIES OF EMPLOYEES. IN THE LIGHT OF THAT REVIEW WE WERE REQUIRED TO RULE THAT LEGAL MINOR WARDS OF AN EMPLOYEE'S HOUSEHOLD WERE NOT DEPENDENTS OR MEMBERS OF THE FAMILY OR IMMEDIATE FAMILY WITHIN THE PURVIEW OF STATUTORY OR REGULATORY PROVISIONS AUTHORIZING TRANSPORTATION AT GOVERNMENT EXPENSE.

OUR VIEW IS THAT THE EXTENSION OF THE STATUTORY OR REGULATORY PROVISIONS TO CATEGORIES OF PERSONS NOW BEYOND THE EXPRESS PROVISIONS OF THE APPLICABLE STATUTES OR REGULATIONS PRIMARILY IS A MATTER FOR CONSIDERATION BY THE CONGRESS OR OF THE AGENCIES VESTED WITH AUTHORITY TO REGULATE, RATHER THAN FOR DECISION OF OUR OFFICE.

THEREFORE, WE CONCLUDE THAT SINCE BROTHERS OF EMPLOYEES ARE NOT NOW EXPRESSLY WITHIN THE SCOPE OF THE TERM "IMMEDIATE FAMILY," AS DEFINED IN CIRCULAR NO. A-56, WE MAY NOT LAWFULLY AUTHORIZE PAYMENT OF MR. RIEDINGER'S CLAIM.

THE CLAIM AND RELATED PAPERS TRANSMITTED WITH THE ASSOCIATE COMMISSIONER'S LETTER ARE RETURNED HEREWITH.