B-177155, NOV 24, 1972

B-177155, NOV 24, 1972

CIVILIAN PERSONNEL - REAL ESTATE EXPENSES - ONE YEAR LIMITATION DECISION DENYING THE CLAIM OF J. A. ASHLEY, FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE INCIDENT TO A TRANSFER FROM NEW YORK, N.Y. TO WASHINGTON, D.C. UNDER OMB CIRCULAR NO. A-56, SECTION 4.1, REVISED OCT. 12, 1966 WHICH WAS IN EFFECT DURING THE PERIOD IN QUESTION, THE SETTLEMENT DATE MUST HAVE OCCURRED WITHIN ONE YEAR OF THE CHANGE OF DUTY STATION, EVEN IF THERE IS A DELAY DUE TO NO FAULT OF THE EMPLOYEE. THE FACT THAT SETTLEMENTS ARE MERE FORMALITIES IN THE STATE OF THE RESIDENCE IS IRRELEVANT AS ARE SUBSEQUENT AMENDMENTS TO THE REGULATION.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF YOUR OFFICE FROM THE ASSOCIATE ASSISTANT SECRETARY FOR FINANCIAL MANAGEMENT DATED SEPTEMBER 29, 1972, ENCLOSING A VOUCHER IN FAVOR OF MR. J. A. ASHLEY AND REQUESTING DECISION AS TO WHETHER HE MAY BE REIMBURSED FOR REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE INCIDENT TO A TRANSFER FROM NEW YORK, NEW YORK, TO WASHINGTON, D. C.

IT IS STATED THAT MR. ASHLEY WAS AUTHORIZED A CHANGE OF OFFICIAL STATION FROM NEW YORK, NEW YORK, TO WASHINGTON, D. C., UNDER TRAVEL ORDER DATED APRIL 27, 1967, AND AMENDMENT NO. 2 DATED AUGUST 17, 1967. HE ENTERED ON DUTY AT THE NEW OFFICIAL STATION ON MAY 21, 1967. DUE TO A SLOW MARKET AND THE FACT THAT THE FIRST BUYER DEFAULTED THROUGH NO FAULT OF MR. ASHLEY, THE DATE OF CLOSING OR SETTLEMENT ON THE SALE OF HIS PROPERTY WAS JUNE 14, 1968, MORE THAN ONE YEAR AFTER ENTRY ON DUTY AT HIS NEW OFFICIAL STATION. MR. ASHLEY CONTENDS, HOWEVER, THAT SETTLEMENT IN NEW JERSEY, WHERE THE PROPERTY WAS LOCATED, IS A MERE FORMALITY AND THAT SINCE THE CONTRACT OF SALE WAS SIGNED PRIOR TO THE EXPIRATION OF THE ONE-YEAR PERIOD, HE IS ENTITLED TO REIMBURSEMENT.

SECTION 4.1 OF BUREAU OF THE BUDGET (NOW OFFICE OF MANAGEMENT AND BUDGET) CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, IN EFFECT DURING THE PERIOD IN QUESTION, ESTABLISHED THE CONDITIONS AND REQUIREMENTS UNDER WHICH REAL ESTATE ALLOWANCES AUTHORIZED BY THAT SECTION COULD BE PAID. IT PROVIDED IN PERTINENT PART THAT THE ALLOWANCES COULD BE PAID, PROVIDED THAT:

"THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION."

THE REGULATION AT THAT TIME PRESCRIBED ONLY ONE EXCEPTION WHEREBY THE DESIGNATED ONE-YEAR PERIOD CAN BE EXTENDED. NOTWITHSTANDING THE FACT THAT SETTLEMENT WAS DELAYED FOR REASONS BEYOND THE CONTROL OF MR. ASHLEY, IT WAS NOT DELAYED BECAUSE OF LITIGATION. FURTHER, DESPITE MR. ASHLEY'S INDICATION THAT THE CLOSING OF TITLE IN NEW JERSEY IS A MERE FORMALITY, THERE IS NO BASIS FOR CONSTRUING THE TERM "SETTLEMENT DATE" AS USED IN THE REGULATIONS TO MEAN OTHER THAN THE ACTUAL DATE ON WHICH THE PURCHASE OR SALE OF A RESIDENCE IS FINALLY SETTLED, IN THIS CASE JUNE 14, 1968. SEE B -166268, MARCH 27, 1969; B-172911, JUNE 21, 1971. ALTHOUGH CIRCULAR NO. A -56 WAS AMENDED ON JUNE 26, 1969, TO ALLOW EXTENSIONS OF THE ONE-YEAR TIME LIMITATION IN APPROPRIATE CASES OTHER THAN WHERE LITIGATION IS INVOLVED, SUCH AMENDMENT WAS NOT RETROACTIVE AND THEREFORE IS NOT APPLICABLE IN THIS CASE.

SINCE SETTLEMENT WAS NOT CONSUMMATED WITHIN ONE YEAR AFTER MR. ASHLEY REPORTED FOR DUTY AT HIS NEW DUTY STATION, AND WAS NOT DELAYED BECAUSE OF LITIGATION, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.