B-169855, JUL. 10, 1970

B-169855, JUL. 10, 1970

CIVIL PAY -- TRANSFERRED EMPLOYEE -- DEPENDENT DECISION TO NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES SUSTAINING THE DISALLOWANCE OF AN EMPLOYEE'S CLAIM FOR REIMBURSEMENT FOR TRANSPORTATION AND PER DIEM FOR TWO GRANDCHILDREN INCIDENT TO EMPLOYEES TRANSFER TO NEW STATION. EMPLOYEE WHO INCIDENT TO TRANSFER TO A NEW STATION WAS ACCOMPAINED BY HER GRANDCHILDREN WHO WERE SOLELY DEPENDENT UPON HER FOR FINANCIAL SUPPORT MAY NOT BE ALLOWED EXPENSES FOR THE GRANDCHILDREN UNDER B OF B CIRCULAR NO. A- 50 TERM "IMMEDIATE FAMILY" IS RESTRICTED TO CATEGORIES SPECIFIED "CHILDREN STEPCHILDREN AND ADOPTED CHILDREN" THUS, REGARDLESS OF THE DEPENDENCY OF THE GRANDCHILDREN AND FACT THAT FOR IRS TAX PURPOSES GRANDCHILDREN HAVE BEEN CLAIMED AS DEPENDENTS REIMBURSEMENT IS NOT AUTHORIZED.

TO MR. MICHAEL J. FLATTERY:

YOUR LETTERS OF MAY 6 AND 13, 1970, ON BEHALF OF MRS. AMY HEAD, REQUEST REVIEW OF SETTLEMENT OF NOVEMBER 6, 1969, WHICH DISALLOWED HER CLAIM FOR TRANSPORTATION AND PER DIEM FOR TWO GRANDCHILDREN, AND FOR ALLOWANCE FOR ADDITIONAL MISCELLANEOUS EXPENSES AS AN EMPLOYEE WITH IMMEDIATE FAMILY, INCIDENT TO HER TRANSFER AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY.

MRS. HEAD WAS TRANSFERRED FROM THE INTERNAL REVENUE SERVICE CENTER, OGDEN, UTAH, TO THE NORTH-ATLANTIC SERVICE CENTER, ANDOVER, MASSACHUSETTS. SHE TRAVELED TO HER NEW POST OF DUTY DURING THE PERIOD FROM AUGUST 26 THROUGH 29, 1963, ACCOMPANIED BY HER GRANDCHILDREN, JAMES AND SANDRA SCHUMACHER. MRS. HEAD SAYS THAT THEY HAVE BEEN HER PARENTAL RESPONSIBILITY SINCE 1954, AND THAT THEY HAVE LIVED WITH HER SINCE THEN. YOU HAVE SUBMITTED A COPY OF AN ORDER OF THE JUVENILE COURT OF PIERCE COUNTY, WASHINGTON, DATED OCTOBER 31, 1961, WHICH MADE JAMES AND SANDRA SCHUMACHER WARDS OF THE COURT AND PLACED THEM IN THE PHYSICAL CUSTODY OF THEIR GRANDMOTHER, MRS. AMY HEAD.

YOU SAY THAT MRS. HEAD HAS HAD CUSTODY OF THE TWO MINOR CHILDREN AND THAT THEY HAVE BEEN HER DEPENDENTS AND MEMBERS OF HER IMMEDIATE FAMILY, AND THAT THE INTERNAL REVENUE SERVICE HAS PERMITTED HER TO CLAIM THESE GRANDCHILDREN AS DEPENDENTS FOR FEDERAL INCOME TAX PURPOSES. YOU REFER TO OUR DECISION B-168760, DATED MARCH 5, 1970 (49 COMP. GEN. ), IN WHICH WE EXPRESSED THE OPINION THAT THE TERM "DEPENDENT" RELATED TO FINANCIAL SUPPORT, AND YOU INDICATE THAT THE TWO GRANDCHILDREN HAVE BEEN COMPLETELY DEPENDENT UPON MRS. HEAD FOR FINANCIAL SUPPORT.

5 U.S.C. 5724(A)(1) PROVIDES THAT 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 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, OFFICE OF MANAGEMENT AND BUDGET IN ATTACHMENT A OF CIRCULAR NO. A-56, 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." IT IS CLEAR THAT THE TERM "IMMEDIATE FAMILY" AS USED IN CIRCULAR NO. A-56 IS RESTRICTED TO THE CATEGORIES OF PERSONS ENUMERATED IN PARAGRAPH 1.2D, INCLUDING CHILDREN OF THE EMPLOYEE, BUT NOT GRANDCHILDREN OR WARDS OF THE EMPLOYEE. SEE DECISION B-135091, MARCH 4, 1958, AND DECISION B-160913, MARCH 20, 1967 (COPIES ENCLOSED).

REFERENCE TO DEPENDENCY IN OUR DECISION OF MARCH 5, 1970, WAS IN CONNECTION WITH A CLAIM FOR ALLOWANCES FOR AN EMPLOYEE'S MOTHER-IN-LAW, SAID TO BE A DEPENDENT PARENT. IT APPEARS THAT MRS. HEAD HAS CUSTODY OF HER GRANDCHILDREN AND THAT THEY ARE RECOGNIZED AS HER DEPENDENTS FOR FEDERAL INCOME TAX PURPOSES. HOWEVER, REGARDLESS OF THEIR DEPENDENCY STATUS, MRS. HEAD'S GRANDCHILDREN ARE NOT HER CHILDREN EITHER BY BIRTH OR ADOPTION, NOR ARE THEY HER STEPCHILDREN WITHIN THE MEANING OF CIRCULAR NO. A-56.

UPON REVIEW, WE MUST SUSTAIN THE PRIOR DISALLOWANCE OF MRS. HEAD'S CLAIM.