B-173020, JUN 14, 1971

B-173020: Jun 14, 1971

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IT IS IMMATERIAL THAT MIZELL WAS UNAWARE OF CHANGES IN CIRCULAR NO. AS THE REGULATION IS STATUTORY IN NATURE AND HE IS THEREBY CHARGED WITH KNOWLEDGE. THE CONTROLLING POINT IS THE DATE OF PURCHASE WHICH IN MIZELL'S CASE WAS SUBSEQUENT TO THE EFFECTIVE DATE OF THE STATUTE AND. ACCARDI: REFERENCE IS MADE TO YOUR LETTER OF MAY 18. MIZELL WAS FIRST NOTIFIED OF HIS PENDING TRANSFER ON JUNE 25. ON THE SAME DATE HE EXECUTED A REQUEST FOR AUTHORIZATION (FORM 6500-140) WHICH WAS APPROVED ON JULY 7. THE SALE WAS CONSUMMATED ON SEPTEMBER 5. YOU CONCLUDED THAT THE ALLOWANCE OF THE VA FUNDING FEE WAS IN ERROR. MIZELL IN THE AMOUNT HE WAS REIMBURSED FOR THE VA FUNDING FEE. MIZELL CLAIMS THAT HE IS ENTITLED TO REIMBURSEMENT OF BOTH THE LENDER'S LOAN ORIGINATION FEE AND THE VA FUNDING FEE SINCE HE HAD NOT RECEIVED NOTIFICATION OF THE REVISION OF CIRCULAR NO.

B-173020, JUN 14, 1971

CIVILIAN EMPLOYEE - TRANSFER OF STATIONS - EXPENSES REIMBURSABLE DECISION PERTAINING TO PAYMENT OF CERTAIN EXPENSES INCURRED BY MR. ROGER T. MIZELL, EMPLOYEE OF FOREST SERVICE, IN PURCHASING A HOME AT HIS NEW DUTY STATION AFTER A TRANSFER. IT IS IMMATERIAL THAT MIZELL WAS UNAWARE OF CHANGES IN CIRCULAR NO. A-56 OMB, AS THE REGULATION IS STATUTORY IN NATURE AND HE IS THEREBY CHARGED WITH KNOWLEDGE. THE CONTROLLING POINT IS THE DATE OF PURCHASE WHICH IN MIZELL'S CASE WAS SUBSEQUENT TO THE EFFECTIVE DATE OF THE STATUTE AND, THEREFORE, APPLICABLE TO HIM. AS THE REVISION DISALLOWS THE EXPENSES IN QUESTION, LOAN ORIGINATION FEE AND VA FUNDING FEE, MAY NOT BE PAID.

TO MR. R. W. ACCARDI:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1971, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION FROM OUR OFFICE AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER IN THE AMOUNT OF $221.50 IN FAVOR OF MR. ROGER T. MIZELL FOR REIMBURSEMENT OF CERTAIN REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE PURCHASE OF A RESIDENCE AT HIS NEW DUTY STATION INCIDENT TO HIS TRANSFER FROM ASHEVILLE, NORTH CAROLINA, TO ATLANTA, GEORGIA.

MR. MIZELL WAS FIRST NOTIFIED OF HIS PENDING TRANSFER ON JUNE 25, 1969. ON THE SAME DATE HE EXECUTED A REQUEST FOR AUTHORIZATION (FORM 6500-140) WHICH WAS APPROVED ON JULY 7, 1969. IT PROVIDED, AMONG OTHER THINGS, THAT CERTAIN EXPENSES INCIDENT TO THE PURCHASE OF A RESIDENCE AT THE NEW OFFICIAL STATION WOULD BE ALLOWED.

ON JULY 10, 1969, MR. MIZELL MADE AN OFFER AND SUBSEQUENTLY ENTERED INTO A CONTRACT FOR PURCHASE OF HIS RESIDENCE. THE SALE WAS CONSUMMATED ON SEPTEMBER 5, 1969, PRIOR TO HIS BEING INFORMED THAT THE LENDER'S LOAN ORIGINATION FEE AND VA FUNDING FEE WOULD NOT BE ALLOWED.

ON THE BASIS OF THE JUNE 26, 1969 REVISION OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 YOU DISALLOWED THE LENDER'S LOAN ORIGINATION FEE AND ALLOWED THE VA FUNDING FEE. UPON FURTHER STUDY AND REVIEW OF OUR DECISION B-168674, FEBRUARY 10, 1970, 49 COMP. GEN. 483, YOU CONCLUDED THAT THE ALLOWANCE OF THE VA FUNDING FEE WAS IN ERROR. CONSEQUENTLY, YOU BILLED MR. MIZELL IN THE AMOUNT HE WAS REIMBURSED FOR THE VA FUNDING FEE.

MR. MIZELL CLAIMS THAT HE IS ENTITLED TO REIMBURSEMENT OF BOTH THE LENDER'S LOAN ORIGINATION FEE AND THE VA FUNDING FEE SINCE HE HAD NOT RECEIVED NOTIFICATION OF THE REVISION OF CIRCULAR NO. A-56.

IN LIGHT OF SUCH CLAIM YOU ASK THE FOLLOWING TWO QUESTIONS:

"1. DUE TO THE CIRCUMSTANCES OF THIS CASE, MAY THE ATTACHED VOUCHER FOR REIMBURSEMENT OF THE LENDERS LOAN ORIGINATING FEE BE CERTIFIED FOR PAYMENT?

"2. SHOULD THE FOREST SERVICE PURSUE COLLECTION OF THE AMOUNT REIMBURSED TO MR. MIZELL FOR THE VA FUNDING FEE?"

SINCE THE ANSWERS TO BOTH OF YOUR QUESTIONS TURN ON THE JUNE 26, 1969 REVISION OF CIRCULAR NO. A-56 BY TRANSMITTAL MEMORANDUM NO. 5, WHICH RENDERED THE LENDER'S LOAN ORIGINATION FEE AS WELL AS CERTAIN OTHER FINANCE CHARGES NONREIMBURSABLE, WE POINT OUT THAT WE HAVE HELD ON NUMEROUS OCCASIONS THAT THE CONTROLLING FACTOR IN RESOLVING CLAIMS OF THIS NATURE IS THE DATE ON WHICH THE ACTUAL EXPENSES ARE INCURRED. SEE 47 COMP. GEN. 582 (1968), AND B-168476, JANUARY 12, 1970.

AS TO MR. MIZELL'S CONTENTION THAT HE HAD NOT RECEIVED TIMELY NOTICE OF THE REVISION OF CIRCULAR NO. A-56, THE REGULATION IS STATUTORY IN NATURE AND HAS THE FORCE AND EFFECT OF LAW AND, THEREFORE, HE IS CHARGEABLE WITH CONSTRUCTIVE NOTICE OF THE REVISION AND OF THE EFFECTIVE DATE THEREOF. HENCE, IT IS IMMATERIAL THAT MR. MIZELL WAS NOT AWARE OF THE REVISED REGULATION. SEE B-168011, OCTOBER 24, 1969, AND B-168239, DECEMBER 15, 1969, COPIES ENCLOSED.

SINCE MR. MIZELL INCURRED THE EXPENSES FOR WHICH HE CLAIMS REIMBURSEMENT SUBSEQUENT TO THE EFFECTIVE DATE OF THE REVISION OF CIRCULAR NO. A-56 BY TRANSMITTAL MEMORANDUM NO. 5, YOUR FIRST QUESTION MUST BE ANSWERED IN THE NEGATIVE AND YOUR SECOND QUESTION IN THE AFFIRMATIVE.

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