B-179583, JUL 31, 1974

B-179583, JUL 31, 1974

TEMPORARY QUARTERS ALLOWANCE MAY NOT BE PAID TO EMPLOYEE WHO, FOR 11 MONTHS PRIOR TO TRANSFER, HAD BEEN DETAILED TO AREA OF NEW DUTY STATION WHERE, FOR PERIOD FOR WHICH HE CLAIMS TEMPORARY QUARTERS ALLOWANCE, HE AND HIS FAMILY CONTINUED TO OCCUPY RENTED APARTMENT IN WHICH THEY HAD RESIDED DURING DETAIL. SUBSECTION 8.2C OF OMB CIRCULAR NO. A-56, REVISED AUGUST 17, 1971, DEFINES TEMPORARY QUARTERS IN TERMS OF LODGINGS OCCUPIED AFTER EMPLOYEE AND/OR FAMILY VACATE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED.

THIS ACTION IS UPON THE REQUEST BY AN AUTHORIZED CERTIFYING OFFICER FOR THE INTERNAL REVENUE SERVICE (IRS) FOR AN OPINION AS TO THE ENTITLEMENT OF MR. WALTER C. JONES, AN IRS EMPLOYEE, TO AN ALLOWANCE FOR TEMPORARY QUARTERS FOR THE PERIOD FROM JUNE 11, 1972, THROUGH JUNE 18, 1972. MR. JONES, WHO HAS BEEN ALLOWED TEMPORARY QUARTERS EXPENSES IN THE AMOUNT OF $84 FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18 HAS NOW SUBMITTED A SUPPLEMENTAL VOUCHER IN THE AMOUNT OF $73.50 FOR TEMPORARY LODGING EXPENSES FOR THAT SAME PERIOD.

PRIOR TO HIS CHANGE OF OFFICIAL STATION FROM JACKSONVILLE TO MIAMI, FLORIDA, ON AUGUST 11, 1972, MR. JONES HAD BEEN DETAILED TO THE MIAMI AREA. HIS LETTER DATED NOVEMBER 15, 1972, ON THE SUBJECT OF HIS MOVING EXPENSES STATES THAT HIS FAMILY ACCOMPANIED HIM TO MIAMI ON JULY 16. 1971, IN CONNECTION WITH THAT DETAIL AND THAT THEY RESIDED IN MIAMI FOR THE PERIOD OF HIS DETAIL IN A RENTED APARTMENT. THE EMPLOYEE AND HIS FAMILY WERE OCCUPYING THOSE LEASED QUARTERS AT THE DATE OF HIS TRANSFER ON JUNE 11, 1972, AND REMAINED THERE UNTIL JUNE 18, 1972, WHEN THEY MOVED INTO A HOUSE IN THE MIAMI AREA THAT THE EMPLOYEE HAD PURCHASED.

MR. JONES HAS INDICATED THAT FOR THE PERIOD AFTER JUNE 11, 1972, AND UNTIL JUNE 25, 1972, 30 DAYS AFTER HE HAD GIVEN WRITTEN NOTICE OF HIS INTENT TO TERMINATE THE LEASE, HE WAS REQUIRED TO PAY RENT IN THE AMOUNT OF $157.50 AND BY HIS SUPPLEMENTAL VOUCHER HAS CLAIMED ADDITIONAL TEMPORARY QUARTERS EXPENSES FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18 BASED ON THAT TOTAL AMOUNT WHICH HE INDICATES HE WAS REQUIRED TO PAY REGARDLESS OF THE FACT THAT HE IN FACT CEASED TO OCCUPY THE APARTMENT A WEEK BEFORE THE JUNE 25TH DATE. THUS, HE CLAIMS A DAILY LODGING COST THE $19.69 FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18. ON THE BASIS OF HIS ORIGINAL VOUCHER MR. JONES HAS BEEN PAID TEMPORARY LODGING EXPENSES BASED ON A DAILY LODGING COST OF $10.50. THUS, THE $84 PAYMENT HE HAS RECEIVED IS THAT SHARE OF THE $157.50 RENT PAYABLE FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 25 PRORATED FOR THE PERIOD OF HIS ALLEGED OCCUPANCY OF TEMPORARY QUARTERS FROM JUNE 11 THROUGH JUNE 18.

THE CERTIFYING OFFICER QUESTIONS WHETHER THE $84 PAYMENT FOR LODGING EXPENSES WAS PROPER AND IF SO, WHETHER THE SUPPLEMENTAL VOUCHER MAY BE CERTIFIED FOR PAYMENT. IN REGARD TO THE FIRST QUESTION PRESENTED, THE CERTIFYING OFFICER SPECIFICALLY QUESTIONS WHETHER THE APARTMENT WHICH THE EMPLOYEE AND HIS FAMILY OCCUPIED FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18 CONSTITUTES TEMPORARY QUARTERS.

SECTION 8 OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, AS REVISED AUGUST 17. 1971, PROVIDES FOR THE PAYMENT OF SUBSISTENCE EXPENSES OF THE EMPLOYEE AND HIS IMMEDIATE FAMILY WHILE OCCUPYING TEMPORARY QUARTERS WHEN AN EMPLOYEE IS TRANSFERRED TO A NEW OFFICIAL STATION. SUBSECTION 8.2 PROVIDES IN PERTINENT PART AS FOLLOWS:

"8.2 CONDITIONS AND LIMITATIONS FOR ELIGIBILITY

"C. WHAT CONSTITUTES TEMPORARY QUARTERS. 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."

IN OUR DECISION B-176531, MARCH 12, 1973, WE CONSIDERED THAT PARTICULAR STATUTORY LANGUAGE IN THE CONTEXT OF A SITUATION VERY SIMILAR TO MR. JONES'. IN THAT CASE, THE EMPLOYEE HAD BEEN DETAILED TO SAN FRANCISCO ON JULY 1, 1969, AND REMAINED SO DETAILED UNTIL HE WAS UNTIMATELY TRANSFERRED THERE ON A PERMANENT BASIS ON JULY 31, 1971. AT THE DATE OF HIS TRANSFER HE WAS RESIDING IN SAN FRANCISCO IN THE RENTED APARTMENT IN WHICH HE HAD BEEN LIVING FOR SOME TIME AND CONTINUED TO LIVE THERE DURING THE PERIOD FOR WHICH HE CLAIMED TEMPORARY QUARTERS EXPENSES. WE HELD THAT UNDER THE LANGUAGE OF THE ABOVE REGULATION THE EMPLOYEE WAS NOT ENTITLED TO TEMPORARY QUARTERS EXPENSES INASMUCH AS HE HAD NOT VACATED THE RESIDENCE QUARTERS IN WHICH HE WAS RESIDING AT THE TIME OF TRANSFER. FOR THE SAME REASON, WE FIND THAT MR. JONES IS NOT ENTITLED TO PAYMENT OF TEMPORARY QUARTERS EXPENSES FOR THE PERIOD FROM JUNE 11 THROUGH JUNE 18 DURING WHICH HE CONTINUED TO RESIDE IN THE APARTMENT HE HAD OCCUPIED FOR SOME TIME PRIOR TO TRANSFER. WE THEREFORE FIND NO NECESSITY TO ADDRESS THE SECOND QUESTION, PERTAINING TO THE SUPPLEMENTAL VOUCHER, RAISED BY THE CERTIFYING OFFICER.

APPROPRIATE ACTION SHOULD BE TAKEN TO RECOVER THE $84 AMOUNT PREVIOUSLY PAID TO THE EMPLOYEE IN CONNECTION WITH HIS ALLEGED OCCUPANCY OF TEMPORARY QUARTERS DURING THE PERIOD IN QUESTION.