B-173753, SEP 23, 1971

B-173753: Sep 23, 1971

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A-56 RELATING TO REIMBURSEMENT OF EXPENSES INCURRED IN SETTLING A LEASE ARE MET WHERE THE EMPLOYEE IS REQUIRED TO MOVE IN A MANNER THAT MAKES IT IMPOSSIBLE FOR HIM TO GIVE TIMELY NOTICE OF HIS TRANSFER IN ORDER TO TERMINATE HIS LIABILITY UNDER A LEASE AT NO COST TO HIM. WINFREE IS RECLAIMING THE AMOUNT OF $215. THE RECLAIM IS THE AMOUNT PAID BY THE EMPLOYEE IN A SETTLEMENT HE MADE IN SUBLEASING THE APARTMENT HE WAS REQUIRED TO VACATE UNDER AN UNEXPIRED LEASE IN PITTSBURG. HE BECAME AWARE THAT HE WAS TO BE TRANSFERRED TO RICHMOND. A COPY OF WHICH IS SUBMITTED WITH YOUR LETTER. WAS THE ONLY METHOD HE HAD OTHER THAN A SUBLEASE TO TERMINATE HIS LIABILITY UNDER THE LEASE. WINFREE SAYS FURTHER THAT THE APARTMENT HE HAD LEASED WAS IN A NEW HIGH RISE APARTMENT BUILDING WHICH AT THAT TIME HAD MANY VACANT APARTMENTS NEVER LEASED BY ANYONE.

B-173753, SEP 23, 1971

CIVILIAN EMPLOYEE - CHANGE OF STATION - TERMINATION OF LEASE AUTHORIZING PAYMENT OF A VOUCHER IN THE AMOUNT OF $215 IN FAVOR OF RUPPERT WINFREE, AN EMPLOYEE OF IRS, COVERING MOVING EXPENSES INCURRED INCIDENT TO A CHANGE OF STATION FROM PITTSBURG, PA., TO RICHMOND, VA. THE REQUIREMENTS OF SECTION 4.2F OF OMB CIR. NO. A-56 RELATING TO REIMBURSEMENT OF EXPENSES INCURRED IN SETTLING A LEASE ARE MET WHERE THE EMPLOYEE IS REQUIRED TO MOVE IN A MANNER THAT MAKES IT IMPOSSIBLE FOR HIM TO GIVE TIMELY NOTICE OF HIS TRANSFER IN ORDER TO TERMINATE HIS LIABILITY UNDER A LEASE AT NO COST TO HIM, AND IN PLACE THEREOF, TO MINIMIZE COSTS, HE OFFERS ONE MONTH'S RENT ($215) TO A PROSPECTIVE LESSEE AS AN INDUCEMENT FOR ASSUMING THE LEASE.

TO MRS. CARMELLA J. RIZZO:

THIS REFERS TO YOUR LETTER OF JULY 27, 1971, WITH ENCLOSURES, REFERENCE SHOWN ABOVE, REQUESTING A DECISION WHETHER THE ENCLOSED RECLAIM VOUCHER IN THE AMOUNT OF $215 IN FAVOR OF RUPERT WINFREE, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, MAY BE CERTIFIED FOR PAYMENT UNDER THE CIRCUMSTANCES PRESENTED.

BY TRAVEL VOUCHER DATED JULY 13, 1971, MR. WINFREE IS RECLAIMING THE AMOUNT OF $215, NOT PAID ON A PREVIOUS TRAVEL VOUCHER COVERING HIS MOVING EXPENSES FROM PITTSBURG, PENNSYLVANIA, TO RICHMOND, VIRGINIA, UNDER TRAVEL AUTHORIZATION DATED APRIL 15, 1971. THE RECLAIM IS THE AMOUNT PAID BY THE EMPLOYEE IN A SETTLEMENT HE MADE IN SUBLEASING THE APARTMENT HE WAS REQUIRED TO VACATE UNDER AN UNEXPIRED LEASE IN PITTSBURG, DUE TO AN EMPLOYMENT TRANSFER.

MR. WINFREE'S UNDATED STATEMENT INDICATES THAT HE HAD SIGNED A ONE YEAR LEASE EFFECTIVE APRIL 1, 1971, FOR AN APARTMENT IN THE VICINITY OF HIS OLD STATION. SHORTLY THEREAFTER, HE BECAME AWARE THAT HE WAS TO BE TRANSFERRED TO RICHMOND, VIRGINIA. THE EMPLOYEE SAYS THAT CLAUSE 23 OF THE LEASE, A COPY OF WHICH IS SUBMITTED WITH YOUR LETTER, WAS THE ONLY METHOD HE HAD OTHER THAN A SUBLEASE TO TERMINATE HIS LIABILITY UNDER THE LEASE. THIS CLAUSE PROVIDED FOR TERMINATION OF THE LEASE IN THE EVENT OF AN EMPLOYMENT TRANSFER, UPON GIVING SIXTY DAYS NOTICE FROM THE FIRST DAY OF ANY MONTH. IT PROVIDES FURTHER, HOWEVER, THAT NOTICE MAY NOT BE GIVEN PRIOR TO OCTOBER 1, 1971.

MR. WINFREE SAYS FURTHER THAT THE APARTMENT HE HAD LEASED WAS IN A NEW HIGH RISE APARTMENT BUILDING WHICH AT THAT TIME HAD MANY VACANT APARTMENTS NEVER LEASED BY ANYONE. THEREFORE, AT THE URGING OF HIS LANDLORD THAT HE MAKE SUCH ARRANGEMENTS FOR SUBLEASING THE APARTMENT, HE BARGAINED WITH A PROSPECTIVE NEW TENANT AND ARRIVED AT AN AGREEMENT WHEREBY HE WOULD PAY ONE MONTH'S RENT ($215) AS CONSIDERATION FOR THE OTHER TAKING OVER HIS LEASE. MR. WINFREE SAYS FURTHER THAT HE HAD LITTLE TIME TO MAKE OTHER LEASING ARRANGEMENTS SINCE IN THE LIMITED TIME HE HAD WITHIN WHICH TO REPORT TO HIS NEW STATION, HE ALSO HAD TO FIND AN APARTMENT AT HIS NEW LOCATION. HE CONTENDS THAT UNDER THE APPLICABLE LAW PERTAINING TO HIS LIABILITY UNDER HIS LEASE CONTRACT, IT WOULD OTHERWISE HAVE COST MUCH MORE TO OBTAIN HIS RELEASE FROM THE TERMS OF THE CONTRACT.

UNDER SECTION 4.2F, OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56, DATED JUNE 26, 1969, AN EMPLOYEE, UPON TRANSFER TO A NEW DUTY STATION, IS ENTITLED TO REIMBURSEMENT OF EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE WHEN:

" *** (1) APPLICABLE LAWS OR THE TERMS OF THE LEASE PROVIDED FOR PAYMENT OF SETTLEMENT EXPENSES, (2) SUCH EXPENSES CANNOT BE AVOIDED BY SUBLEASE OR OTHER ARRANGEMENT, (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE EXPENSE BY FAILING TO GIVE APPROPRIATE LEASE TERMINATION NOTICE PROMPTLY AFTER HE HAS DEFINITE KNOWLEDGE OF THE PROPOSED TRANSFER, *** "

THE RECORD SHOWS THAT AT THE TIME THE EMPLOYEE WAS REQUIRED TO MOVE TO HIS NEW STATION, IT WAS NOT POSSIBLE FOR HIM TO GIVE TIMELY NOTICE OF HIS TRANSFER IN ORDER TO TERMINATE HIS LIABILITY UNDER THE LEASE AT NO COST TO HIM. IT WOULD THEREFORE APPEAR THAT THE PROCEDURE ADOPTED WITH THE APPROVAL OF THE LANDLORD, OF OFFERING ONE MONTH'S RENT TO A PROSPECTIVE LESSEE AS AN INDUCEMENT FOR ASSUMING HIS LEASE, WAS THE ONLY COURSE AVAILABLE TO TERMINATE HIS LIABILITY UNDER THE LEASE AT THE LEAST COST TO HIM. A STATEMENT EVIDENCING RECEIPT OF THE MONEY BY THE NEW LESSEE IS PART OF THE ENCLOSURES SUBMITTED.

SINCE IT APPEARS THAT A POSSIBLE SAVINGS TO THE GOVERNMENT RESULTED FROM THE ASSUMPTION OF THE LEASE UNDER THE CIRCUMSTANCES DISCLOSED, IT MAY BE CONSIDERED THAT THE REQUIREMENTS OF SUBPARAGRAPH 4.2F OF THE CIRCULAR HAVE BEEN SATISFIED. SEE B-172947, DATED JULY 13, 1971.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH TOGETHER WITH SUPPORTING PAPERS MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.