B-169923, AUG. 14, 1970

B-169923: Aug 14, 1970

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TEMPORARY QUARTERS ALLOWANCE EMPLOYEE WHO RECEIVED TEMPORARY LODGING ALLOWANCE FOR PERIOD AFTER HE MOVED INTO A HOME HE SUBSEQUENTLY PURCHASED WHEN FORMER HOME WAS SOLD MUST BE CONSIDERED TO HAVE OCCUPIED PERMANENT LIVING QUARTERS AND REFUND IS REQUIRED. VLADIMIR OLEYNIK: THIS WILL REFER TO YOUR LETTER DATED MAY 14. SHEA IS ENTITLED TO RETAIN ANY OR ALL OF THE AMOUNT OF $1. 280 HE WAS REIMBURSED UNDER PROVISIONS OF SUBSECTION 5724AA)(3) OF TITLE 5. THE ISSUES RAISED BY THE INFORMAL INQUIRY ARE: (1) WHETHER TEMPORARY QUARTERS WITHIN THE MEANING OF THE LAW AND REGULATION MAY BE HELD TO HAVE BEEN OCCUPIED AFTER SEPTEMBER 12. SHOULD HAVE BEEN ALLOWED IN THE ABSENCE OF ITEMIZATION OF EXPENSES AND SUBMISSION OF RECEIPTS FOR LODGING AS REQUIRED FOR A DETERMINATION OF THE LESSER AMOUNT OF EITHER ACTUAL EXPENSES OR AN ALLOWANCE COMPUTED AS PROVIDED BY SUBSECTION 2.5D(2) OF CIRCULAR NO.

B-169923, AUG. 14, 1970

TRANSFERRED EMPLOYEE -- TEMPORARY QUARTERS ALLOWANCE EMPLOYEE WHO RECEIVED TEMPORARY LODGING ALLOWANCE FOR PERIOD AFTER HE MOVED INTO A HOME HE SUBSEQUENTLY PURCHASED WHEN FORMER HOME WAS SOLD MUST BE CONSIDERED TO HAVE OCCUPIED PERMANENT LIVING QUARTERS AND REFUND IS REQUIRED.

TO MR. VLADIMIR OLEYNIK:

THIS WILL REFER TO YOUR LETTER DATED MAY 14, 1970, FORWARDING A COPY OF AN INFORMAL INQUIRY BY THE CIVIL DIVISION OF THIS OFFICE, QUESTIONING PAYMENT OF TEMPORARY QUARTERS ALLOWANCES TO MR. ROBERT J. SHEA IN CONNECTION WITH HIS TRANSFER FROM GALVESTON, TEXAS, TO NEW ORLEANS, LOUISIANA, UNDER TRAVEL AUTHORIZATION DATED AUGUST 17, 1967. YOU REQUEST OUR DECISION AS TO WHETHER MR. SHEA IS ENTITLED TO RETAIN ANY OR ALL OF THE AMOUNT OF $1,280 HE WAS REIMBURSED UNDER PROVISIONS OF SUBSECTION 5724AA)(3) OF TITLE 5, U.S.C. AND SUBSECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, DATED OCTOBER 12, 1966.

THE ISSUES RAISED BY THE INFORMAL INQUIRY ARE: (1) WHETHER TEMPORARY QUARTERS WITHIN THE MEANING OF THE LAW AND REGULATION MAY BE HELD TO HAVE BEEN OCCUPIED AFTER SEPTEMBER 12, 1967; AND (2) WHETHER REIMBURSEMENT FOR THE PERIOD AUGUST 31, 1967, THROUGH SEPTEMBER 11, 1967, SHOULD HAVE BEEN ALLOWED IN THE ABSENCE OF ITEMIZATION OF EXPENSES AND SUBMISSION OF RECEIPTS FOR LODGING AS REQUIRED FOR A DETERMINATION OF THE LESSER AMOUNT OF EITHER ACTUAL EXPENSES OR AN ALLOWANCE COMPUTED AS PROVIDED BY SUBSECTION 2.5D(2) OF CIRCULAR NO. A 56.

MR. SHEA HAS SUBMITTED A STATEMENT IN EXPLANATION OF THE CLAIM AS MADE ON HIS VOUCHER PLUS RECEIPTS FROM THE CANDLELIGHT INN, NEW ORLEANS, LOUISIANA, COVERING LODGING AND A FEW RESTAURANT CHARGES FOR TWO PERIODS, ONE DATING FROM AUGUST 29, 1967, THROUGH AUGUST 31, 1967, AND ANOTHER DATING FROM SEPTEMBER 4, 1967, THROUGH SEPTEMBER 11, 1967. THE TOTAL OF THE EXPENSES FOR WHICH RECEIPTS HAVE BEEN PRESENTED, PREPONDERANTLY REPRESENTING LODGING, IS $318.02.

BEFORE DECIDING THE QUESTIONS PRESENTED BY THE INFORMAL INQUIRY IT IS NECESSARY TO ESTABLISH THE DATE UPON WHICH MR. SHEA AND HIS FAMILY ACTUALLY BEGAN THEIR STAY IN TEMPORARY QUARTERS. THE VOUCHER CLAIMS REIMBURSEMENT FOR TEMPORARY QUARTERS FOR A PERIOD BEGINNING AUGUST 31, 1967, WITH TRAVEL PERFORMED FROM GALVESTON BEGINNING AT 4 P.M., AUGUST 29 AND ENDING AT 5 P.M. IN NEW ORLEANS ON AUGUST 30. HOWEVER, THE FOLLOWING STATEMENTS ARE CONTAINED IN MR. SHEA'S EXPLANATORY MEMORANDUM OF APRIL 21, 1969:

" *** IT IS ALSO TO BE NOTED THAT THE FIRST DAY WE STAYED AT THE CANDLELIGHT INN WAS AUGUST 29. YOU WILL NOTE THE TRAVEL VOUCHER WHICH I SUBMITTED SHOWS TRAVEL ON AUGUST 29 AND AUGUST 30 AND TEMPORARY QUARTERS ALLOWANCE CLAIMED WAS FROM AUGUST 31. I OBVIOUSLY MADE A MISTAKE AT THE TIME I SUBMITTED THE VOUCHER AND I SHOULD ACTUALLY HAVE SHOWN THE TRAVEL BEING PERFORMED ON AUGUST 29 AND AUGUST 30, WITH THE START OF TEMPORARY QUARTERS BEING AUGUST 31.

"I AM ALSO ENCLOSING A COPY OF THE ORIGINAL ORDER FOR SERVICE FROM ROGERS TRANSFER AND STORAGE COMPANY IN GALVESTON, WHICH SHOWS THE SERVICE WAS PERFORMED ON AUGUST 28. WE LEFT GALVESTON IMMEDIATELY AFTER THE FURNITURE WAS LOADED ON AUGUST 28. WHAT ALL THIS MEANS IS THAT I SHOULD HAVE CLAIMED TEMPORARY QUARTERS ALLOWANCE FROM AUGUST 30 THROUGH SEPTEMBER 11, 1967 -- 10 DAYS AT $60.00 PER DAY AND 3 DAYS AT $38.00 PER DAY, $714.00.

THE DATE OF MOVEMENT OF HOUSEHOLD GOODS IS FURTHER CONFIRMED BY A WEIGHT SLIP IN THE AMOUNT OF 6,890 POUNDS FURNISHED BY A CERTIFIED WEIGHER AT GALVESTON, TEXAS, AND DATED AUGUST 28, 1967.

IN VIEW OF THE ABOVE, AND THE MOTEL RECEIPT FOR AUGUST 29, IT APPEARS THE EMPLOYEE MAY HAVE MEANT TO SAY THAT HE SHOULD HAVE CORRECTED HIS VOUCHER TO SHOW TRAVEL FROM GALVESTON TO NEW ORLEANS ON AUGUST 28 AND AUGUST 29. OCCUPATION OF TEMPORARY QUARTERS MAY THUS BE CONSIDERED TO HAVE BEGUN ON AUGUST 29 IN ACCORDANCE WITH THE PROVISION OF SUBSECTION 2.5B(5) THAT " *** SUCH TIME SHALL BEGIN TO RUN FOR THE EMPLOYEE, SPOUSE, AND ALL MEMBERS OF THE IMMEDIATE FAMILY WHEN EITHER THE EMPLOYEE, THE SPOUSE, OR ANY MEMBER OF THE IMMEDIATE FAMILY STARTS TO OCCUPY SUCH QUARTERS *** ."

IN CONSTRUING SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, OUR OFFICE HAS GIVEN GREAT WEIGHT TO THE INTENT OF THE EMPLOYEE WHEN OCCUPYING RESIDENCE QUARTERS OF A PERMANENT TYPE--SUCH INTENT BEING DETERMINED OBJECTIVELY FROM ALL PERTINENT FACTS AND CIRCUMSTANCES SURROUNDING THE OCCUPANCY OF SUCH QUARTERS. B-167361, DATED AUGUST 5, 1969. TO DETERMINE WHETHER OR NOT MR. SHEA'S MOVE TO A RESIDENCE AT 6609 BLANKE STREET, METAIRIE, LOUISIANA, ON SEPTEMBER 12, 1967, DEMONSTRATED INTENT TO OCCUPY PERMANENT QUARTERS, WE HAVE EXAMINED THE SHIPPING DOCUMENTS HE RECEIPTED ON THAT DATE TO WHICH ATTENTION IS CALLED IN THE INFORMAL INQUIRY AND WHICH INDICATE DELIVERY OF 6,890 POUNDS OF HOUSEHOLD GOODS FROM TEMPORARY STORAGE TO 6609 BLANKE STREET. WE HAVE ALSO CONSIDERED THE FOLLOWING STATEMENTS IN MR. SHEA'S EXPLANATORY MEMORANDUM:

" *** WHEN I LEFT GALVESTON I LEFT A HOUSE WHICH HAD NOT AS YET BEEN SOLD WITH A MONTHLY NOTE OF $274.00. I WAS NOT FINANCIALLY ABLE TO PURCHASE ANOTHER RESIDENCE UNTIL THE GALVESTON RESIDENCE WAS SOLD. *** I WAS COMPELLED TO GIVE UP MOTEL LIVING AND OBTAIN LARGER LIVING QUARTERS. AGREEMENT WAS MADE WHEREBY I WOULD OCCUPY THE RESIDENCE AT 6609 BLANKE STREET, METAIRIE, AND PAY THE OWNER RENT IN THE AMOUNT OF $225.00 PER MONTH FOR A PERIOD OF SIX MONTHS OR SOONER, ONCE I WAS IN A POSITION TO PURCHASE. HAD MY HOUSE IN GALVESTON NOT BEEN SOLD PRIOR TO THIS 6-MONTH PERIOD I WOULD NOT HAVE BEEN IN A POSITION TO PURCHASE. I WOULD HAVE HAD TO VACATE THE PREMISES, LOSING MY $1,000.00 DEPOSIT. *** AS IT WORKED OUT I WAS ABLE TO SELL MY GALVESTON HOUSE ON OCTOBER 5. I THEN WENT AHEAD AND PURCHASED THE RESIDENCE AT 6609 BLANKE ON NOVEMBER 24, 1967. ***

"AS FURTHER SUBSTANTIATION OF THE CLAIM FOR TEMPORARY QUARTERS ALLOWANCE THROUGH SEPTEMBER 28 IS THE FACT THAT PART OF MY FURNITURE (580 POUNDS) WAS NOT DELIVERED UNTIL AFTER I ESTABLISHED TEMPORARY QUARTERS AT 6609 BLANKE. *** THE 580 POUNDS CONTAINED SOME VITAL THINGS AND WERE NOT DELIVERED UNTIL SOME TIME AFTER SEPTEMBER 12. *** "

IN A LONG LINE OF DECISIONS WE HAVE PREVIOUSLY HELD THAT SUCH FACTORS AS ADEQUACY OF FURNISHINGS, PRESENCE OR ABSENCE OF EMPLOYEE'S HOUSEHOLD EFFECTS AND LACK OF COMPLETION OF LIVING ARRANGEMENTS ARE NOT DETERMINATIVE OF THE PERMANENCE OR LACK THEREOF OF LIVING QUARTERS OCCUPIED. IN THIS CASE ALL THE FACTS AVAILABLE BEARING ON THE INTENT OF THE EMPLOYEE AND THE TYPE OF QUARTERS OCCUPIED ON SEPTEMBER 12 REQUIRE US TO FIND THAT AFTER THAT DATE HE AND HIS FAMILY MUST BE CONSIDERED AS OCCUPYING PERMANENT LIVING QUARTERS. B-167361, DATED AUGUST 5, 1969, SUPRA, COPY ENCLOSED. SEE ALSO B-165389, DATED OCTOBER 22, 1968; B- 166729, DATED JUNE 24, 1969; B-168901, DATED FEBRUARY 27, 1970.

WITH RESPECT TO ITEMIZATION OF ACTUAL EXPENDITURES AS REQUIRED BY SUBSECTION 2.5D(1) OF CIRCULAR NO. A-56, IT HAS BEEN HELD THAT ALTHOUGH THE APPLICABLE REGULATION DOES NOT REQUIRE A MEAL BY MEAL STATEMENT OF COSTS, IT DOES REQUIRE THAT THE ACTUAL AMOUNTS BE SHOWN. B-164251, DATED JUNE 26, 1968. WHILE AVERAGE ESTIMATES OF COSTS OF MEALS ARE NOT GENERALLY HELD TO BE ACCEPTABLE, WE HAVE ACCEPTED SUCH ESTIMATES WHERE THE EXPENSES CLAIMED ARE REASONABLE AND ARE BASED ON ACTUAL EXPENDITURES. 166238, DATED MARCH 27, 1969; B-165020, DATED SEPTEMBER 9, 1968. POINTED OUT BY MR. SHEA, AFTER DEDUCTION OF LODGING OF $25 PER DAY (PLUS TAX OF $1.25) THERE REMAINS ONLY $33.75 OUT OF THE MAXIMUM ALLOWANCE OF $60 WHICH WOULD HAVE BEEN AVAILABLE FOR MEALS AND LAUNDRY FOR SEVEN PEOPLE FOR THE FIRST 10 DAYS. THIS REDUCES TO APPROXIMATELY $15 PER DAY FOR THE SECOND 10-DAY PERIOD. ACCORDINGLY, WE WILL NOT INSIST ON ANY FURTHER ESTIMATES FROM MR. SHEA FOR MEALS AND OTHER ALLOWABLE EXPENSES.

AS TO SEPTEMBER 1, 2, AND 3, MR. SHEA SAYS THAT THIS WAS THE LABOR DAY WEEKEND AND " *** WE STAYED ELSEWHERE *** ." ABSENCE FROM AN EMPLOYEE'S OFFICIAL STATION FOR PERSONAL REASONS DOES NOT INTERRUPT THE RUNNING OF THE PERIOD FOR WHICH SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY LODGING MAY BE ALLOWED. ALSO, SUCH EXPENSES INCURRED BY THE EMPLOYEE AWAY FROM HIS OLD AND NEW OFFICIAL DUTY STATION ON PERSONAL BUSINESS MAY NOT BE REIMBURSED. B-164251, DATED JUNE 26, 1969, SUPRA, AND B-169525, DATED MAY 11, 1970. IF MR. SHEA AND HIS FAMILY STAYED IN NEW ORLEANS AND HE WILL FURNISH LODGING RECEIPTS FOR THE THREE DAYS, HIS ENTITLEMENT TO THE ALLOWANCE FOR SUCH DAYS WOULD BE FOR FURTHER CONSIDERATION.

IN SUMMARY, ON THE BASIS OF THE RECORD NOW BEFORE US, MR. SHEA SHOULD BE REQUIRED TO REFUND THE AMOUNT HE RECEIVED FOR TEMPORARY LODGING ON SEPTEMBER 1, 2, AND 3 AND SEPTEMBER 13 THROUGH SEPTEMBER 28, 1967.