B-163827, APRIL 23, 1968, 47 COMP. GEN. 582

B-163827: Apr 23, 1968

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IS ENTITLED TO CLOSING COSTS UNDER BUREAU OF THE BUDGET CIRCULAR NO. WHEN THE SETTLEMENT AGREEMENT WAS EXECUTED AND THE TITLE TO THE RESIDENCE TRANSFERRED. PHILIP WAS TRANSFERRED FROM OLMSTED AIR FORCE BASE. THE SALE WAS NOT FINAL UNTIL AUGUST 1. WHEN THE SETTLEMENT AGREEMENT WAS EXECUTED AND HE PAID THE CLOSING COSTS OF THE SALE. ISSUED PURSUANT TO PUBLIC LAW 89 516 PROVIDES FOR THE ALLOWANCE OF EXPENSES THAT ARE REIMBURSABLE UNDER THE PROVISIONS OF THE STATUTE WHICH ARE INCURRED ON OR AFTER JULY 21. IS NOT A COMPLETE "SALE" BUT ONLY AN "AGREEMENT FOR THE SALE" WITH THE PAYMENT OF EARNEST MONEY. THAT AN AGREEMENT OF SALE IS AN UNDERTAKING TO EXECUTE AND DELIVER AN INSTRUMENT OF CONVEYANCE AND THE LATTER IS SOMETIMES SEPARATE AND APART FROM THE AGREEMENT OF SALE ITSELF.

B-163827, APRIL 23, 1968, 47 COMP. GEN. 582

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - EFFECTIVE DATE - SALES AGREEMENT PRIOR TO JULY 21, 1966 A CIVILIAN EMPLOYEE WHO BEFORE REPORTING TO HIS NEW DUTY STATION ON AUGUST 26, 1966, AND PRIOR TO THE EFFECTIVE DATE OF PUBLIC LAW 89-516, AGREED TO SELL HIS RESIDENCE AT HIS OLD DUTY STATION AND ACCEPTED A DEPOSIT OF "EARNEST MONEY" WITH THE UNDERSTANDING THE BALANCE WOULD BE PAID UPON TRANSFER OF TITLE, IS ENTITLED TO CLOSING COSTS UNDER BUREAU OF THE BUDGET CIRCULAR NO. A-56, WHICH PROVIDES FOR THE ALLOWANCE OF REIMBURSABLE EXPENSES INCURRED ON OR AFTER JULY 21, 1966, AS THE SALE OF THE RESIDENCE BECAME FINAL ON AUGUST 1, 1966, WHEN THE SETTLEMENT AGREEMENT WAS EXECUTED AND THE TITLE TO THE RESIDENCE TRANSFERRED.

TO MAJOR C. C. VAN SICLEN, JR., DEPARTMENT OF THE AIR FORCE, APRIL 23, 1968:

THIS REFERS TO YOUR UNDATED LETTER, WITH ENCLOSURES, REFERENCE SACA, FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE ON MARCH 15, 1968, PDTATAC CONTROL NO. 68-14, REQUESTING OUR DECISION WHETHER PAYMENT MAY BE MADE OF $959.45 REPRESENTING CLOSING COSTS OF THE SALE OF A RESIDENCE OF MR. RUSSEL E. PHILIP, A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

BY ORDER DATED JULY 26, 1966, MR. PHILIP WAS TRANSFERRED FROM OLMSTED AIR FORCE BASE, PENNSYLVANIA, TO KELLY AIR FORCE BASE, TEXAS. HE REPORTED FOR DUTY AT THE NEW DUTY STATION AUGUST 29, 1966. ON JUNE 27, 1966, BEFORE HIS DEPARTURE FROM HIS OLD DUTY STATION AND SOME 24 DAYS BEFORE THE EFFECTIVE DATE OF PUBLIC LAW 89-516, 5 U.S.C. 5724, MR. PHILIP SIGNED AN AGREEMENT TO SELL HIS RESIDENCE. HOWEVER, THE SALE WAS NOT FINAL UNTIL AUGUST 1, 1966, WHEN THE SETTLEMENT AGREEMENT WAS EXECUTED AND HE PAID THE CLOSING COSTS OF THE SALE.

SECTION 23 (4) OF PUBLIC LAW 89-516, 5 U.S.C. 5724A, PROVIDES FOR REIMBURSEMENT TO THE EMPLOYEE OF EXPENSES OF THE "SALE" OF THE RESIDENCE AT THE OLD OFFICIAL STATION. BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, ISSUED PURSUANT TO PUBLIC LAW 89 516 PROVIDES FOR THE ALLOWANCE OF EXPENSES THAT ARE REIMBURSABLE UNDER THE PROVISIONS OF THE STATUTE WHICH ARE INCURRED ON OR AFTER JULY 21, 1966. YOUR DOUBT IN THE MATTER ARISES AS TO WHEN THE SALE OF THE RESIDENCE ACTUALLY OCCURRED.

THE AGREEMENT OF SALE ENTERED INTO ON JUNE 27, 1966, PROVIDED FOR THE DEPOSIT OF $500 EARNEST MONEY AND THE BALANCE OF THE MONEY TO BE PAID ON OR BEFORE AUGUST 29, 1966, UPON TRANSFER OF TITLE.

IT HAS BEEN HELD THAT A WRITTEN CONTRACT WHEREBY THE OWNER OF CERTAIN DESCRIBED PROPERTY AGREES TO SELL IT AND THE OTHER PARTY TO THE CONTRACT AGREES TO BUY IT FOR A STATED PRICE TO BE PAID IN CASH, THE ACT OF SALE TO BE PASSED WITHIN A TIME SPECIFIED, THE PARTY PROPOSING TO BUY DEPOSITING A SUM TO BECOME A PART OF THE PURCHASE PRICE, IS NOT A COMPLETE "SALE" BUT ONLY AN "AGREEMENT FOR THE SALE" WITH THE PAYMENT OF EARNEST MONEY. MALONEY V ASCHAFFENBURG, 78 SO. 761, 764; ALSO, THAT AN AGREEMENT OF SALE IS AN UNDERTAKING TO EXECUTE AND DELIVER AN INSTRUMENT OF CONVEYANCE AND THE LATTER IS SOMETIMES SEPARATE AND APART FROM THE AGREEMENT OF SALE ITSELF. SMITH V MESSNER, 92 A.2D 417, 418, 372 PA. 60; AND THAT THE "SALE OF LAND" IS THE ACTUAL TRANSFER OF TITLE FROM THE GRANTOR TO THE GRANTEE BY APPROPRIATE INSTRUMENT OF CONVEYANCE. KEOGH V PECK, 147 N.E. 266, 269.

OUR VIEW IS THAT THE WORD "SALE" AS USED IN THE STATUTE AND REGULATIONS HERE INVOLVED REFERS TO THE TRANSFER OF TITLE WHICH USUALLY DOES NOT OCCUR UNTIL TIME OF SETTLEMENT. SINCE THE SETTLEMENT AND TRANSFER OF TITLE IN THIS CASE DID NOT ACTUALLY OCCUR UNTIIL AUGUST 1, 1966, THE EXPENSES INCURRED BY MR. PHILIP INCIDENT TO THE SALE OF HIS RESIDENCE AT THE OLD DUTY STATION FALL WITHIN THE PROVISIONS OF PUBLIC LAW 89-516, APPROVED JULY 21, 1966, AND THE IMPLEMENTING REGULATIONS PROMULGATED BY THE BUREAU OF THE BUDGET.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE PAID IF OTHERWISE CORRECT.