B-164145, JUN. 3, 1968

B-164145: Jun 3, 1968

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LEITH: THIS IS IN REPLY TO YOUR LETTER OF APRIL 24. THE EMPLOYEE WAS TRANSFERRED FROM PORTSMOUTH. IT WAS STATED IN THE CONTRACT THAT SETTLEMENT WAS DESIRED BY AUGUST 1967. THE BUILDER WAS UNABLE TO COMPLETE CONSTRUCTION AS SCHEDULED. THE TIME WITHIN WHICH TO CLOSE TITLE WAS EXTENDED BY THE AGENCY UNTIL DECEMBER 1. KOESTER WAS ALLOWED EXPENSES OF $1. 047.41 IN CONNECTION WITH SUCH REAL ESTATE TRANSACTION WHICH WAS SUBSEQUENTLY QUESTIONED IN AN INTERNAL AUDIT. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION. EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION.'.

B-164145, JUN. 3, 1968

TO MR. ROBERT L. LEITH:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 24, 1968, REFERENCE OCAC: JRS, CONCERNING ENTITLEMENT TO ALLOWANCES BY MR. WALTER KOESTER, JR., AN EMPLOYEE OF THE ATOMIC ENERGY COMMISSION IN CONNECTION WITH A REAL ESTATE TRANSACTION INCIDENT TO A TRANSFER OF OFFICIAL STATION AS PROVIDED IN PUBLIC LAW 89-516, 80 STAT. 323, WHEN THE SETTLEMENT TAKES PLACE MORE THAN ONE YEAR AFTER REPORTING FOR DUTY AT HIS NEW STATION.

UNDER ORDERS DATED SEPTEMBER 28, 1966, THE EMPLOYEE WAS TRANSFERRED FROM PORTSMOUTH, OHIO, TO GERMANTOWN, MARYLAND, REPORTING FOR DUTY ON OCTOBER 17, 1966. ON OR ABOUT JANUARY 29, 1967, HE ENTERED INTO A CONTRACT FOR THE PURCHASE OF A LOT AND THE CONSTRUCTION OF A HOUSE THEREON. IT WAS STATED IN THE CONTRACT THAT SETTLEMENT WAS DESIRED BY AUGUST 1967. HOWEVER, THE BUILDER WAS UNABLE TO COMPLETE CONSTRUCTION AS SCHEDULED. THE TIME WITHIN WHICH TO CLOSE TITLE WAS EXTENDED BY THE AGENCY UNTIL DECEMBER 1, 1967, AND ACTUALLY TOOK PLACE ON NOVEMBER 16, 1967. MR. KOESTER WAS ALLOWED EXPENSES OF $1,047.41 IN CONNECTION WITH SUCH REAL ESTATE TRANSACTION WHICH WAS SUBSEQUENTLY QUESTIONED IN AN INTERNAL AUDIT.

SECTION 4.1 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56 PROVIDES AS FOLLOWS:

"D. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION.'

THE RECORD IN THE CASE SHOWS THAT MR. KOESTER REPORTED TO HIS NEW DUTY STATION ON OCTOBER 17, 1966, AND FINAL SETTLEMENT TOOK PLACE ON NOVEMBER 16, 1967, APPROXIMATELY 14 MONTHS LATER.

YOU INQUIRE AS TO WHETHER THE EXTENSION OF TIME FOR CLOSING BEYOND ONE YEAR WAS UNAUTHORIZED UNDER THE ABOVE REGULATION, THE SETTLEMENT NOT HAVING BEEN DELAYED BY LITIGATION. YOU POINT OUT THAT A LITERAL INTERPRETATION OF THE EXCEPTION UNDER WHICH AN EXTENSION MAY BE AUTHORIZED WOULD LIMIT ITS APPLICATION TO VERY FEW CASES SINCE MOST CASES INVOLVING LITIGATION DO NOT ARISE IN ONE YEAR AND THE CIRCUMSTANCES HERE ATTRIBUTABLE TO BUILDER'S DELAY SEEM TO AFFORD THE BEST BASIS FOR EXTENDING THE TIME FOR SETTLEMENT.

AS WE SAID TO A CLAIMANT IN A SIMILAR CASE, B-163700, MAY 6, 1968 (COPY ENCLOSED):

"ALTHOUGH YOU WERE NOT ABLE TO OBTAIN SETTLEMENT ON THE PURCHASE OF YOUR DWELLING UNTIL AFTER EXPIRATION OF THE ONE-YEAR PERIOD BECAUSE OF CIRCUMSTANCES BEYOND YOUR CONTROL, NEVERTHELESS, IN CONSIDERING YOUR CLAIM WE ARE GOVERNED BY THE ABOVE-QUOTED REGULATION. THIS REGULATION WAS ISSUED PURSUANT TO LAW, PUBLIC LAW 89-516, 80 STAT. 323, APPROVED JULY 21, 1966, AND CONSEQUENTLY IS STATUTORY IN NATURE. OUR OFFICE CANNOT WAIVE IT, NOR EXTEND IT.

"THE REGULATION PRESCRIBES ONLY ONE EXCEPTION WHEREBY THE DESIGNATED ONE- YEAR PERIOD CAN BE EXTENDED. SUCH EXCEPTION PROVIDES THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION. YOUR CASE THE ADMINISTRATIVE OFFICIALS HAVE DETERMINED THAT THE SITUATIONS WHICH CAUSED THE SETTLEMENT TO EXCEED THE PRESCRIBED PERIOD DID NOT INVOLVE LITIGATION. WE FIND NO REASON TO DISAGREE WITH THAT DETERMINATION. MOREOVER, WE PERCEIVE NO BASIS UNDER THE REGULATION FOR THE VIEW THAT THE SIGNING OF THE CUSTOMARY AGREEMENT FOR THE PURCHASE OF REAL ESTATE IS TANTAMOUNT TO -SETTLEMENT AS THAT TERM IS ORDINARILY USED AND UNDERSTOOD. * * *"

ACCORDINGLY, AND SINCE THERE IS NO LITIGATION INVOLVED, THE INSTANT CASE DOES NOT COME WITHIN THE SINGLE EXCEPTION PROVIDED. THE AMOUNT PAID TO THE EMPLOYEE SHOULD BE COLLECTED. THE COPY OF THE SALES CONTRACT IS RETURNED AS REQUESTED.