B-179556, MAY 14, 1974

B-179556: May 14, 1974

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AFTER EMPLOYEE AND FAMILY VACATED RESIDENCE AT OLD DUTY STATION IT WAS MEDICALLY DETERMINED THAT WIFE SHOULD REMAIN AT OLD STATION TO CONTINUE TREATMENT. DETERMINATION AS TO WHAT CONSTITUTES "TEMPORARY QUARTERS" IS NOT SUSCEPTIBLE OF PRECISE DEFINITION AND MUST BE DECIDED ON BASIS OF PARTICULAR FACTS INVOLVED AND INTENT OF PARTIES. LODGING EXPENSES OF WIFE AND CHILD WERE DIRECTLY RELATED TO EMPLOYEE'S TRANSFER AND ARE REIMBURSABLE. TO DEPARTMENT OF TREASURY: THIS ACTION IS AN ADVANCE DECISION CONCERNING THE CLAIM OF MR. MOORE WAS AUTHORIZED TO INCUR MOVING EXPENSES IN CONNECTION WITH HIS TRANSFER OF STATION FROM OGDEN. HIS HOUSEHOLD GOODS WERE DELIVERED TO HIS NEW PERMANENT RESIDENCE IN METHUEN ON AUGUST 21.

B-179556, MAY 14, 1974

AFTER EMPLOYEE AND FAMILY VACATED RESIDENCE AT OLD DUTY STATION IT WAS MEDICALLY DETERMINED THAT WIFE SHOULD REMAIN AT OLD STATION TO CONTINUE TREATMENT. WIFE AND CHILD REMAINED AT OLD DUTY POST FOR EXTENDED PERIOD, WIFE BEING PLACED IN OUT-PATIENT BOARDING HOUSE AND CHILD WITH RELATIVES. DETERMINATION AS TO WHAT CONSTITUTES "TEMPORARY QUARTERS" IS NOT SUSCEPTIBLE OF PRECISE DEFINITION AND MUST BE DECIDED ON BASIS OF PARTICULAR FACTS INVOLVED AND INTENT OF PARTIES. ALTHOUGH WIFE AND CHILD OCCUPIED TEMPORARY QUARTERS FOR EXTENDED PERIOD THEY INTENDED TO JOIN EMPLOYEE AT NEW DUTY STATION AT EARLY DATE. THEREFORE, LODGING EXPENSES OF WIFE AND CHILD WERE DIRECTLY RELATED TO EMPLOYEE'S TRANSFER AND ARE REIMBURSABLE.

TO DEPARTMENT OF TREASURY:

THIS ACTION IS AN ADVANCE DECISION CONCERNING THE CLAIM OF MR. FRANK A. MOORE, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), NOW EMPLOYED AT THE BROOKHAVEN SERVICE CENTER, HOLTSVILLE, NEW YORK, FOR ADDITIONAL REIMBURSEMENT OF SUBSISTENCE EXPENSES FOR HIS WIFE AND CHILD DURING THE PERIOD AUGUST 1 THROUGH 20, 1971, WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A PERMANENT CHANGE OF STATION FROM OGDEN, UTAH, TO THE ANDOVER SERVICE CENTER, ANDOVER, MASSACHUSETTS.

THE FACTS AS REPORTED DISCLOSE THAT ON MAY 10, 1971, MR. MOORE WAS AUTHORIZED TO INCUR MOVING EXPENSES IN CONNECTION WITH HIS TRANSFER OF STATION FROM OGDEN, UTAH, TO ANDOVER, MASSACHUSETTS. HE PLACED HIS HOUSEHOLD GOODS IN STORAGE ON MAY 27, 1971, AND THEY REMAINED THERE THROUGH AUGUST 10, 1971. THE EMPLOYEE COMMENCED TRAVEL ON AUGUST 7, 1971, ARRIVED IN METHUEN, MASSACHUSETTS, ON AUGUST 15 AND REPORTED FOR WORK AT HIS NEW POST OF DUTY ON AUGUST 16, 1971. HIS HOUSEHOLD GOODS WERE DELIVERED TO HIS NEW PERMANENT RESIDENCE IN METHUEN ON AUGUST 21, 1971.

MR. MOORE'S FAMILY CONSISTING OF HIS WIFE AND CHILD REMAINED IN OGDEN, UTAH. HIS WIFE HAD BEEN CONFINED TO A HOSPITAL AND GAVE BIRTH TO THEIR CHILD ON JULY 17, 1971. AFTER RELEASE FROM THE HOSPITAL MEDICAL OFFICIALS ADVISED THAT MRS. MOORE REMAIN IN OGDEN FOR TREATMENT AND SHE WAS PLACED IN AN OUT-PATIENT BOARDING HOUSE FOR ADDITIONAL CARE. THE EMPLOYEE'S CHILD WAS PLACED IN THE CARE OF HIS BROTHER AND SISTER-IN LAW. AS OF AUGUST 1973, MRS. MOORE HAD NOT JOINED HER HUSBAND WHOSE NEW DUTY POST IS AT THE BROOKHAVEN SERVICE CENTER, HOLTSVILLE, NEW YORK.

BASED UPON THE LANGUAGE CONTAINED IN OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, SECTION 2.5B(3), DOUBT HAS BEEN EXPRESSED AS TO THE PROPRIETY OF THIS CLAIM AND THE FOLLOWING QUESTIONS HAVE BEEN ASKED:

"1. CAN THE COST OF BOARD AND CARE FOR EMPLOYEE'S SPOUSE IN AN OUT PATIENT BOARDING HOUSE BE CONSIDERED TEMPORARY QUARTERS?

"2. CAN CARE OF EMPLOYEE'S CHILD BY RELATIVES BE CONSIDERED TEMPORARY QUARTERS?

"3. DUE TO THE NEED AND DURATION OF TEMPORARY QUARTERS, CAN WE PROPERLY INTERPRET THAT THIS WAS 'LODGING OBTAINED TEMPORARILY'?

"4. DUE TO THE UNFORESEEN RESULTS OF THE CONFINEMENT OF EMPLOYEE'S SPOUSE AND THE SUBSEQUENT NECESSITY TO USE TEMPORARY QUARTERS CAN WE CONSIDER THIS CLAIM AS BEING DIRECTLY RELATED TO THE MOVE?"

SECTION 2.5B OF THE ABOVE-CITED CIRCULAR IN EFFECT DURING THE PERIOD OF THE CLAIM UNDER CONSIDERATION PROVIDES AS FOLLOWS:

"(1) SUBSISTENCE EXPENSES OF THE EMPLOYEE, FOR WHOM A PERMANENT CHANGE OF STATION IS AUTHORIZED OR APPROVED, AND EACH MEMBER OF HIS IMMEDIATE FAMILY (DEFINED IN 1.2D), FOR A PERIOD OF NOT MORE THAN 30 CONSECUTIVE DAYS WHILE NECESSARILY OCCUPYING TEMPORARY QUARTERS WILL BE ALLOWED WHEN THE NEW OFFICIAL STATION IS LOCATED IN THE 50 STATES, THE DISTRICT OF COLUMBIA, UNITED STATES TERRITORIES AND POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO AND THE CANAL ZONE, PROVIDED A WRITTEN AGREEMENT AS REQUIRED IN 1.3C IS SIGNED IN CONNECTION WITH SUCH TRANSFER. THE PERIOD OF CONSECUTIVE DAYS MAY BE INTERRUPTED TO TAKE ACCOUNT OF THE TIME THAT IS ALLOWED FOR TRAVEL BETWEEN THE OLD AND NEW OFFICIAL STATIONS OR WHICH IS DUE TO CIRCUMSTANCES ATTRIBUTABLE TO OFFICIAL NECESSITY, AS FOR EXAMPLE, AN INTERVENING TEMPORARY DUTY ASSIGNMENT.

"(3) TEMPORARY QUARTERS REFERS TO LODGING OBTAINED 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."

OUR DECISIONS HAVE RECOGNIZED THAT A DETERMINATION AS TO WHAT CONSTITUTES "TEMPORARY QUARTERS" IS NOT SUSCEPTIBLE OF ANY PRECISE DEFINITION AND, THEREFORE, EACH CASE MUST BE DECIDED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED. WE HAVE CONSISTENTLY GIVEN GREAT WEIGHT TO THE INTENT OF THE EMPLOYEE AS MANIFESTED BY WORDS AND ACTIONS AT THE TIME THE QUARTERS IN QUESTION ARE OCCUPIED. SEE 47 COMP. GEN. 84 (1967) AND B-173585, SEPTEMBER 17, 1971. FURTHER, IN CONNECTION WITH WHETHER SUCH QUARTERS MAY BE VIEWED AS TEMPORARY, THE FACT THAT QUARTERS ARE OCCUPIED FOR LONGER THAN 30 DAYS HAS BEEN HELD NOT TO NECESSARILY PRECLUDE THEIR BEING CONSIDERED TEMPORARY WHERE THE FACTORS JUSTIFY SUCH A DETERMINATION. 47 COMP. GEN. 84, SUPRA, WE HELD THE NECESSITY OF DELAYING THE TRAVEL OF AN EMPLOYEE'S FAMILY IN ORDER THAT THE CHILDREN MIGHT COMPLETE THE SCHOOL TERM AT THE OLD STATION TO BE SUCH A FACTOR. SEE ALSO B-163043, JUNE 18, 1968.

IN THE INSTANT CASE, THE EMPLOYEE AND HIS FAMILY APPARENTLY HAD VACATED HIS RESIDENCE AT THE OLD DUTY STATION PRIOR TO THE PERIOD COVERED BY THE CLAIM AS HE HAD PLACED HIS HOUSEHOLD GOODS IN STORAGE ON MAY 27, 1971. ALTHOUGH THE RECORD BEFORE US DOES NOT SHOW ALL THE FACTS SURROUNDING MR. MOORE'S TRANSFER AS THEY RELATE TO OCCUPANCY OF QUARTERS, EVIDENCE HAS BEEN PRESENTED TO SHOW THAT IT WAS DETERMINED BY MEDICAL AUTHORITIES THAT HIS WIFE SHOULD NOT ACCOMPANY HIM TO HIS NEW STATION BUT SHOULD BE PLACED IN AN OUT-PATIENT BOARDING HOUSE FOR ADDITIONAL TREATMENT IN OGDEN. DOUBT THIS WAS TO HAVE BEEN A TEMPORARY ARRANGEMENT ON THE PART OF THE EMPLOYEE WHO APPARENTLY INTENDED THAT HIS WIFE AND THEIR CHILD WOULD JOIN HIM AT AN EARLY DATE AT HIS NEW DUTY STATION. HENCE, IN REPLY TO QUESTIONS 1 AND 2, THE LODGING EXPENSES OF THE WIFE AND CHILD INCURRED FROM AUGUST 1 THROUGH AUGUST 20, 1971, MAY BE CONSIDERED TO HAVE BEEN INCURRED INCIDENT TO THE OCCUPANCY OF TEMPORARY QUARTERS.

THE FACT THAT THE WIFE AND CHILD OF THE EMPLOYEE HAVE OCCUPIED SUCH QUARTERS FOR A PERIOD SUBSTANTIALLY IN EXCESS OF 30 DAYS DOES NOT PRECLUDE THEIR BEING CONSIDERED TEMPORARY IN VIEW OF THE UNUSUAL CIRCUMSTANCES HEREIN INVOLVED. THE MEDICAL DETERMINATION OF NECESSITY FOR MRS. MOORE TO REMAIN IN OGDEN MILITATES TOWARD THE CONCLUSION THAT HER QUARTERS AS WELL AS THOSE OF THEIR CHILD WERE OBTAINED BY THE EMPLOYEE ON A TEMPORARY BASIS DURING THE PERIOD UNDER CONSIDERATION. THEREFORE, QUESTION 3 IS ANSWERED AFFIRMATIVELY. IT IS POINTED OUT THAT UNDER CURRENT REGULATIONS CONTAINED IN FPMR 101-7, MAY 1, 1973, SECTION 2-5.2C, TEMPORARY QUARTERS INCLUDES ANY LODGINGS OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES.

IN VIEW OF THE FACT THAT MEDICAL AUTHORITIES STATED IT WAS NOT ADVISABLE FOR MRS. MOORE TO ACCOMPANY HER HUSBAND TO MASSACHUSETTS SUGGESTING THAT SHE REMAIN IN OGDEN FOR THE PURPOSE OF TREATMENT, WE ARE UNABLE TO CONCLUDE THAT SHE WOULD HAVE BEEN PLACED IN THE BOARDING HOUSE AND THEIR CHILD PLACED WITH RELATIVES HAD THE TRANSFER NOT OCCURRED. MORE SPECIFICALLY, THE INFORMATION PROVIDED INDICATES THAT BUT FOR THE NECESSITY FOR MRS. MOORE TO REMAIN IN OGDEN FOR MEDICAL TREATMENT, SHE AND THEIR CHILD WOULD HAVE ACCOMPANIED THE EMPLOYEE TO HIS NEW DUTY STATION. ACCORDINGLY, AND IN REPLY TO QUESTION 4, THE USE OF TEMPORARY QUARTERS IN THE CIRCUMSTANCES OF THIS CASE MAY BE CONSIDERED AS BEING DIRECTLY RELATED TO THE EMPLOYEE'S TRANSFER OF OFFICIAL DUTY STATION.

IN OUR REVIEW OF THE EVIDENCE WE HAVE NOTED CERTAIN INCONSISTENCIES THEREIN WITH RESPECT TO PAYMENTS MADE BY THE CLAIMANT FOR LODGING EXPENSES FOR HIS FAMILY. AS TO LODGING EXPENSES FOR HIS WIFE, THE RECORD DOES NOT CONTAIN A RECEIPT SHOWING THE ENTIRE COST OF HER TREATMENT. IN THE ABSENCE THEREOF, THE STATEMENT BY THE WEBER COUNTY HEALTH CENTER IN ITS LETTER DATED JANUARY 12, 1973, REFERRING TO AN ESTIMATE BY THE EMPLOYEE OF $3 PER DAY MAY BE ACCEPTED AS ESTABLISHING THIS AMOUNT AS BEING REASONABLE. WITH REGARD TO LODGING EXPENSES FOR MR. MOORE'S CHILD, HE STATES THAT HE WAS CHARGED $50 PER WEEK FOR HER CARE BY HIS BROTHER AND SISTER-IN-LAW. A STATEMENT BY HIS BROTHER RECITES THAT THE BROTHER RECEIVED $50 EACH MONTH FROM AUGUST 1971 THROUGH JANUARY 1972 FOR THE CARE OF THE CHILD. HOWEVER, THE EMPLOYEE'S CANCELLED CHECKS SHOW THAT HE IN FACT PAID $100 PER MONTH FOR HER CARE. THEREFORE, REIMBURSEMENT FOR THESE EXPENSES MAY BE MADE ONLY AFTER SUCH DISCREPANCIES HAVE BEEN EXPLAINED.

IN THE CIRCUMSTANCES A VOUCHER FOR REIMBURSEMENT OF TEMPORARY LODGING EXPENSES INCURRED BY MR. MOORE FOR HIS WIFE AND CHILD MAY PROPERLY BE CERTIFIED FOR PAYMENT IN ACCORDANCE WITH THE FOREGOING.