B-166402, MAY 7, 1969

B-166402: May 7, 1969

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THE LEASE OF THE UNIT NOT OCCUPIED BY THE PRIDE FAMILY WAS EXTENDED ON A MONTH TO MONTH BASIS AFTER MARCH 1967 UNTIL A NEW LEASE WITH NEW TENANTS WAS EXECUTED SEPTEMBER 1. THE LATTER LEASE WAS IN EFFECT AT THE TIME MR. THE EXISTING LEASE WAS ASSIGNED TO THE NEW PURCHASER. IT IS MR. SINCE HE BOUGHT AND SOLD THE DUPLEX AS AN ENTITY BECAUSE IT WAS IMPOSSIBLE TO SELL IN SEPARATE UNITS. THE STATUTORY REGULATION APPLICABLE IN THIS CASE IS SECTION 4.1E OF BUREAU OF THE BUDGET CIRCULAR A-56. THE REGULATION PROVIDES THAT: "* * * IF THE RESIDENCE IS A DUPLEX OR ANOTHER TYPE OF MULTIPLE OCCUPANCY DWELLING WHICH IS OCCUPIED ONLY PARTIALLY BY THE EMPLOYEE* * * EXPENSES WILL BE REIMBURSED ON A PRO RATA BASIS.'.

B-166402, MAY 7, 1969

TO MR. P. K. BUSHNELL:

THIS REFERS TO YOUR LETTER OF MARCH 7, 1969, REQUESTING A DECISION AS TO CERTIFICATION FOR PAYMENT OF A TRAVEL VOUCHER SUBMITTED BY MR. E. E. PRIDE FOR REIMBURSEMENT OF AN AMOUNT OF $383.67 REPRESENTING AN ADDITIONAL ONE- HALF THE COSTS INCIDENT TO SALE OF A DUPLEX HOUSE AT HIS OLD DUTY STATION UPON TRANSFER FROM LOS ALAMOS, NEW MEXICO, TO RICHLAND, WASHINGTON.

THE DOCUMENTS ENCLOSED WITH YOUR LETTER SHOW THAT MR. PRIDE PURCHASED THE DUPLEX ON SEPTEMBER 28, 1966, AS AN ENTITY, SUBJECT TO AN IRREVOCABLE LEASE OF ONE UNIT RUNNING THROUGH MARCH 1967. MR. PRIDE AND HIS FAMILY OCCUPIED THE OTHER UNIT OF THE HOUSE. THE LEASE OF THE UNIT NOT OCCUPIED BY THE PRIDE FAMILY WAS EXTENDED ON A MONTH TO MONTH BASIS AFTER MARCH 1967 UNTIL A NEW LEASE WITH NEW TENANTS WAS EXECUTED SEPTEMBER 1, 1967. THE LATTER LEASE WAS IN EFFECT AT THE TIME MR. PRIDE SOLD THE DUPLEX ON JANUARY 12, 1968, AND THE EXISTING LEASE WAS ASSIGNED TO THE NEW PURCHASER.

MR. PRIDE CLAIMS FULL REIMBURSEMENT OF THE BROKER'S COMMISSION AND SALES TAX ON HIS SALE OF THE DUPLEX, OR $767.35, OF WHICH HE HAS BEEN PAID ADMINISTRATIVELY ONE-HALF THE AMOUNT OR $383.68.

IT IS MR. PRIDE'S POSITION THAT, SINCE HE BOUGHT AND SOLD THE DUPLEX AS AN ENTITY BECAUSE IT WAS IMPOSSIBLE TO SELL IN SEPARATE UNITS, HE SHOULD BE REIMBURSED FOR THE COSTS OF SALE OF THE ENTIRE STRUCTURE RATHER THAN ON A PRO RATA BASIS FOR THAT PART OF THE DUPLEX IN WHICH HE RESIDED.

5 U.S.C. 5724A (A) (4) ALLOWS REIMBURSEMENT TO TRANSFERRED EMPLOYEES OF CERTAIN EXPENSES OF THE SALE OF THE RESIDENCE OF THE EMPLOYEE AT THE OLD STATION. THE STATUTORY REGULATION APPLICABLE IN THIS CASE IS SECTION 4.1E OF BUREAU OF THE BUDGET CIRCULAR A-56, AS REVISED OCTOBER 12, 1966. THE REGULATION PROVIDES THAT:

"* * * IF THE RESIDENCE IS A DUPLEX OR ANOTHER TYPE OF MULTIPLE OCCUPANCY DWELLING WHICH IS OCCUPIED ONLY PARTIALLY BY THE EMPLOYEE* * * EXPENSES WILL BE REIMBURSED ON A PRO RATA BASIS.'

IN B-163187, FEBRUARY 19, 1968, AND B-163254, FEBRUARY 27, 1968(COPIES ENCLOSED), INVOLVING REIMBURSABLE COSTS INCIDENT TO THE SALE OF A HOME USED AS A RESIDENCE, TOGETHER WITH SURROUNDING INCOME PRODUCING FARM LAND, WE HELD THAT AN EMPLOYEE WAS ENTITLED TO REIMBURSEMENT ONLY OF COSTS OF THE SALE WHICH COULD BE ATTRIBUTED TO THE PROPORTIONATE VALUE OF THE RESIDENCE.

IN THIS CASE THE SALE OF THE UNIT OF THE DUPLEX NOT OCCUPIED BY MR. PRIDE AND RENTED TO ANOTHER OCCUPANT CONSTITUTED THE SALE OF A CAPITAL ASSET AND WAS A SALE OF SOMETHING IN ADDITION TO HIS LIVING QUARTERS. ASSUMING THE VALUE OF EACH UNIT OF THE DUPLEX WAS EQUAL, THE EMPLOYEE WAS ENTITLED TO REIMBURSEMENT OF 50 PERCENT OF THE COSTS OF THE REAL ESTATE TRANSACTION, AS ORIGINALLY ALLOWED.

THE VOUCHER IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.