B-177570, FEB 20, 1973

B-177570: Feb 20, 1973

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A TEMPORARY QUARTERS ALLOWANCE MAY BE PAID IF IT IS SHOWN THAT THE FORMER RESIDENCE HAS BEEN PERMANENTLY VACATED AND THAT RESIDENCE HAS BEEN TAKEN UP IN TEMPORARY QUARTERS WITH THE INTENT OF ABANDONING THE FORMER PERMANENT RESIDENCE. RAND: THIS IS IN REPLY TO YOUR LETTER DATED DECEMBER 1. NICHIPOR STATES THAT HE WAS UNABLE TO OBTAIN SUITABLE HOUSING IN THE VICINITY OF HIS NEW STATION AND ENGAGED A BUILDER TO CONSTRUCT A NEW RESIDENCE. ALTHOUGH THEIR HOUSEHOLD GOODS REMAINED IN THE OLD RESIDENCE UNTIL IT WAS SOLD ON JUNE 9. THE POLICE DEPARTMENT AND HIS BANKS HAD BEEN NOTIFIED THAT THE HOUSE WAS VACANT. NICHIPOR HAS CLAIMED THAT HE AND HIS WIFE ARE ENTITLED TO REIMBURSEMENT FOR TEMPORARY QUARTERS EXPENSES FOR THE 30-DAY PERIOD.

B-177570, FEB 20, 1973

CIVILIAN EMPLOYEE - CHANGE OF STATION - TEMPORARY QUARTERS ALLOWANCE DECISION ALLOWING THE CLAIM OF WALTER NICHIPOR, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED INCIDENT TO HIS OFFICIAL TRANSFER FROM ALBANY, N.Y., TO BOSTON, MASS. A TEMPORARY QUARTERS ALLOWANCE MAY BE PAID IF IT IS SHOWN THAT THE FORMER RESIDENCE HAS BEEN PERMANENTLY VACATED AND THAT RESIDENCE HAS BEEN TAKEN UP IN TEMPORARY QUARTERS WITH THE INTENT OF ABANDONING THE FORMER PERMANENT RESIDENCE. SEE B-167361, AUGUST 5, 1969.

TO MR. JACK H. RAND:

THIS IS IN REPLY TO YOUR LETTER DATED DECEMBER 1, 1972, REFERENCE AD:FF, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER A VOUCHER SUBMITTED BY MR. WALTER NICHIPOR, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, CLAIMING $623.72 FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED BY MR. NICHIPOR INCIDENT TO HIS OFFICIAL TRANSFER FROM ALBANY, NEW YORK, TO BOSTON, MASSACHUSETTS, MAY BE PROPERLY CERTIFIED FOR PAYMENT.

IN REGARD TO HIS CLAIM, MR. NICHIPOR STATES THAT HE WAS UNABLE TO OBTAIN SUITABLE HOUSING IN THE VICINITY OF HIS NEW STATION AND ENGAGED A BUILDER TO CONSTRUCT A NEW RESIDENCE. SINCE THE HOUSE WOULD NOT BE COMPLETED AT THE TIME OF HIS TRANSFER, HE SIGNED A 3-MONTH LEASE FOR A FURNISHED HOUSE AT THE NEW DUTY STATION. ON MARCH 6, 1972, MR. NICHIPOR AND HIS WIFE MOVED FROM THEIR RESIDENCE IN ALBANY INTO THE RENTED HOUSE IN THE BOSTON AREA TAKING WITH THEM ONLY THEIR PERSONAL EFFECTS. ALTHOUGH THEIR HOUSEHOLD GOODS REMAINED IN THE OLD RESIDENCE UNTIL IT WAS SOLD ON JUNE 9, 1972, MR. NICHIPOR STATES THAT UTILITY COMPANIES, THE POST OFFICE, THE POLICE DEPARTMENT AND HIS BANKS HAD BEEN NOTIFIED THAT THE HOUSE WAS VACANT.

MR. NICHIPOR HAS CLAIMED THAT HE AND HIS WIFE ARE ENTITLED TO REIMBURSEMENT FOR TEMPORARY QUARTERS EXPENSES FOR THE 30-DAY PERIOD, MARCH 6, 1972, TO APRIL 4, 1972, WHICH WAS AUTHORIZED BY THE TRAVEL AUTHORIZATION ISSUED PURSUANT TO HIS TRANSFER. ALTHOUGH YOU BELIEVE THAT MR. NICHIPOR IS ENTITLED TO THE TEMPORARY QUARTERS ALLOWANCE FOR HIMSELF YOU EXPRESS DOUBT AS TO WHETHER MRS. NICHIPOR IS ENTITLED TO THIS ALLOWANCE. YOU QUESTION WHETHER MRS. NICHIPOR HAD VACATED HER RESIDENCE IN ALBANY AS REQUIRED BY SECTION 8.2C OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED, SINCE THE OLD RESIDENCE HAD NOT BEEN SOLD AND THE HOUSEHOLD GOODS REMAINED IN THIS HOUSE.

SECTION 8.2C OF CIRCULAR NO. A-56 PROVIDES:

"*** TEMPORARY QUARTERS REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED."

THE TERM "TEMPORARY QUARTERS" IS NOT DEFINED IN THE RELEVANT LAW OR REGULATIONS AND IN VIEW OF THE MANY DIFFERENT SITUATIONS WHICH MAY ARISE UNDER THIS REGULATION WE DOUBT THAT A COMPREHENSIVE DEFINITION COULD BE WRITTEN. CONSEQUENTLY, EACH CASE MUST BE DECIDED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED. 47 COMP. GEN. 84 (1967). IN THIS REGARD SECTION 8.2C HAS BEEN INTERPRETED TO REQUIRE THAT THE FORMER RESIDENCE BE VACATED PERMANENTLY AND IN DETERMINING ELIGIBILITY FOR THIS ALLOWANCE WE HAVE GIVEN GREAT WEIGHT TO THE INTENT OF THE EMPLOYEE OR HIS IMMEDIATE FAMILY IN LEAVING THEIR FORMER RESIDENCE AND TAKING UP RESIDENCE IN TEMPORARY QUARTERS. SEE B-167361, AUGUST 5, 1969.

IN THE PRESENT CASE, THE MANNER IN WHICH THE HOUSE WAS RENTED, THE FACT THAT CONSTRUCTION OF A NEW RESIDENCE WAS IN PROGRESS, AND THE FACT THAT MR. NICHIPOR DID NOT MOVE HIS HOUSEHOLD GOODS INTO THE RENTED HOUSE DEMONSTRATE THAT THE RENTED HOUSE WAS OCCUPIED ON A PURELY TEMPORARY BASIS. FURTHERMORE, IT APPEARS FROM THE PRESENT RECORD THAT MR. AND MRS. NICHIPOR LEFT THEIR RESIDENCE IN ALBANY ON MARCH 6, 1972, WITH THE INTENTION OF PERMANENTLY VACATING IT AND THAT THE FURNITURE WAS LEFT IN THIS HOUSE FOR THE PURPOSE OF TEMPORARY STORAGE UNTIL THEIR NEW RESIDENCE WAS COMPLETED AND NOT FOR THE PURPOSE OF RESUMING RESIDENCY AT A LATER DATE. ACCORDINGLY, WE BELIEVE THAT MR. NICHIPOR AND HIS WIFE MAY BE REGARDED AS OCCUPYING TEMPORARY QUARTERS ON AND AFTER MARCH 6, 1972.

THE VOUCHER IS RETURNED HEREWITH AND MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.