B-177343, MAR 7, 1973

B-177343, MAR 7, 1973

CIVILIAN EMPLOYEE - REAL ESTATE EXPENSES - RESIDENCY REQUIREMENT DECISION DISALLOWING PAYMENT OF A VOUCHER BY KAARE L. VATSHELL FOR REIMBURSEMENT OF EXPENSES INCURRED FROM THE SALE OF HIS FORMER RESIDENCE IN ATLANTA, GA., INCIDENT TO A TRANSFER OF OFFICIAL STATION FROM ATLANTA TO SAN JUAN, P.R. SINCE CLAIMANT WAS NOT LIVING AT THIS HOUSE WHEN HE WAS FIRST NOTIFIED OF HIS TRANSFER AND HAS BEEN REIMBURSED FOR LEASE TERMINATION EXPENSES, REIMBURSEMENT OF EXPENSES FROM THE SALE OF THE DWELLING CANNOT BE GRANTED. 5 U.S.C. 5724AA)(4); OMB CIRCULAR NO. A-56, SECTION 4.1.

TO MR. DAVID M. KRAMER:

THIS REFERS TO YOUR LETTER OF OCTOBER 26, 1972, IN WHICH YOU REQUEST OUR DECISION AS TO THE LEGALITY OF CERTIFYING A VOUCHER PRESENTED BY MR. KAARE L. VATSHELL, FOR REIMBURSEMENT OF EXPENSES INCURRED IN SEPTEMBER 1972 INCIDENT TO THE SALE OF HIS FORMER RESIDENCE IN ATLANTA, GEORGIA, IN CONNECTION WITH HIS TRANSFER OF OFFICIAL STATION FROM ATLANTA TO SAN JUAN, PUERTO RICO.

YOUR LETTER EXPLAINS THAT, UPON PRESENTATION OF A PREVIOUS VOUCHER, MR. VATSHELL WAS REIMBURSED FOR EXPENSES INCIDENT TO THE TERMINATION OF A LEASE ON HIS RESIDENCE AT HIS OLD OFFICIAL STATION. IN VIEW OF THIS YOU DOUBT THE LEGALITY OF PAYMENT OF THE VOUCHER NOW BEFORE YOU SINCE THE LAW (SUBSECTION 5724AA)(4) OF TITLE 5, UNITED STATES CODE), AND THE STATUTORY REGULATION, (SUBSECTION 4.1 OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56), PERMIT REIMBURSEMENT, IN THE ALTERNATIVE, OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF A RESIDENCE AT THE OLD OFFICIAL STATION OR THE COSTS INCIDENT TO SETTLEMENT OF AN UNEXPIRED LEASE. AGREE WITH YOUR VIEW THAT THE LAW CONTEMPLATES REIMBURSEMENT FOR ONLY ONE TRANSACTION AT THE FORMER STATION AND NOT THE EXPENSE OF BOTH A LEASE TERMINATION AND A RESIDENCE SALE.

ALSO, MR. VATSHELL'S CLAIM RAISES A QUESTION AS TO WHETHER UNDER THE CIRCUMSTANCES IN WHICH HIS FORMER RESIDENCE WAS SOLD REIMBURSEMENT OF HIS EXPENSES WOULD BE IN CONFORMANCE WITH SUBSECTION 4.1D OF OMB CIRCULAR NO. A-56, SUPRA. THOSE CIRCUMSTANCES ARE DESCRIBED BY MR. VATSHELL AS FOLLOWS:

"I WAS FIRST DEFINITELY INFORMED OF MY TRANSFER PER TELEPHONE FROM MR. ROY S. MARCEY, EXECUTIVE OFFICER, REGION ONE, ON JANUARY 6, 1972. ON THAT DATE MY FAMILY - WIFE AND TWO CHILDREN - OCCUPIED THE PROPERTY AT 3672 EAGLEROCK DRIVE, DORAVILLE, CA. I WAS THE SOLE OWNER OF THE PROPERTY, MARRIED AND HEAD OF THE HOUSEHOLD.

"BY A PREVIOUS COURT ORDER AND FOR REASONS BEYOND MY CONTROL, I WAS SEPARATED FROM MY WIFE AND LIVING IN A NEARBY APARTMENT. THUS, THE ABOVE ADDRESS WAS NOT STRICTLY MY 'RESIDENCE' AT THE TIME I FIRST WAS DEFINITELY INFORMED OF MY TRANSFER.

"THE DIVORCE WAS FINALLY GRANTED SHORTLY BEFORE MY TRANSFER, AND A ONE- HALF UNDIVIDED INTEREST IN THE PROPERTY WAS DELIVERED TO MY WIFE. CLAIM, THEREFORE, IS FOR 50% OF THE EXPENSES OF THE SALE. THE PROPERTY WAS SOLD IN SEPTEMBER 1972. PRIOR TO THE SALE IT WAS MUTUALLY AGREED BETWEEN MY WIFE AND MYSELF TO EQUALLY SPLIT THE PAYMENT OF BROKER'S FEE AND OTHER EXPENSES."

THE APPLICABLE PROVISION OF SUBSECTION 4.1 OF OMB CIRCULAR NO. A-56 IS AS FOLLOWS:

"4.1 CONDITIONS AND REQUIREMENTS UNDER WHICH ALLOWANCES ARE PAYABLE. THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION; *** PROVIDED THAT:

"D. OCCUPANCY REQUIREMENTS. THE DWELLING FOR WHICH REIMBURSEMENT OF SELLING EXPENSES IS CLAIMED WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION."

SINCE MR. VATSHELL WAS NOT RESIDING IN THE DWELLING IN QUESTION AT THE TIME HE WAS FIRST DEFINITELY INFORMED OF HIS TRANSFER TO SAN JUAN, THE OCCUPANCY REQUIREMENTS OF SUBSECTION 4.1D, SUPRA, HAVE NOT BEEN MET. THEREFORE, REIMBURSEMENT OF THE VOUCHER NOW BEFORE YOU WOULD NOT BE IN CONFORMANCE WITH THE STATUTORY REGULATIONS. AS THE CLAIMANT HAS BEEN REIMBURSED FOR EXPENSES INCURRED INCIDENT TO TERMINATION OF THE LEASE ON HIS APARTMENT PREVIOUSLY OCCUPIED PRIOR TO TRANSFER WE BELIEVE HE HAS RECEIVED PAYMENT FOR ALL THAT TO WHICH HE IS ENTITLED.

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