B-181611, DEC 26, 1974

B-181611: Dec 26, 1974

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EMPLOYEE WHO TRANSFERRED FROM LOS ANGELES TO CHICAGO IS NOT ENTITLED TO REIMBURSEMENT FOR EXPENSES INCURRED IN CONNECTION WITH SALE OF HIS HOME AT OLD DUTY STATION SINCE FINAL SETTLEMENT DID NOT OCCUR WITHIN 2-YEAR PERIOD. FOR ADDITIONAL YEAR WHICH WAS NOT GRANTED UNTIL EXPIRATION OF 2-YEAR PERIOD IS NOT PROPER. SALE IS NOT COMPLETED AT TIME SALES AGREEMENT IS SIGNED. 4. TRANSFERRED EMPLOYEE IS NOT ENTITLED TO REIMBURSEMENT FOR TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS OR FOR PER DIEM AND TRAVEL EXPENSES FOR HIS WIFE SINCE TRAVEL BY WIFE AND TRANSPORTATION OF HOUSEHOLD GOODS DID NOT BEGIN WITHIN 2-YEAR PERIOD ALLOWED BY FTR PARA. 2-1.5A(2) (MAY 1973). CLAIM FOR ADDITIONAL $100 MISCELLANEOUS EXPENSE IS ALLOWED PURSUANT TO FTR PARA. 2-3.3 (MAY 1973) SINCE IT MAY REASONABLY BE CONCLUDED THAT FURTHER MISCELLANEOUS EXPENSES WERE INCURRED AFTER PAYMENT OF FIRST $100 FOR MISCELLANEOUS EXPENSES.

B-181611, DEC 26, 1974

1. EMPLOYEE WHO TRANSFERRED FROM LOS ANGELES TO CHICAGO IS NOT ENTITLED TO REIMBURSEMENT FOR EXPENSES INCURRED IN CONNECTION WITH SALE OF HIS HOME AT OLD DUTY STATION SINCE FINAL SETTLEMENT DID NOT OCCUR WITHIN 2-YEAR PERIOD, AS EXTENDED, FROM DATE ON WHICH EMPLOYEE REPORTED TO NEW DUTY STATION AS PRESCRIBED BY FTR PARA. 2-6.1E (MAY 1973). 2.RETROACTIVE EXTENSION OF INITIAL 1-YEAR TIME LIMITATION, FOR SALE OF HOME UNDER FTR 4.1E, FOR ADDITIONAL YEAR WHICH WAS NOT GRANTED UNTIL EXPIRATION OF 2-YEAR PERIOD IS NOT PROPER. EXTENSION MUST BE GRANTED WITHIN 2-YEAR PERIOD. 3. SALE CANNOT BE CONSIDERED AS COMPLETED UNTIL FINAL SETTLEMENT DATE AFTER EXPIRATION OF 90-DAY ESCROW PERIOD. SALE IS NOT COMPLETED AT TIME SALES AGREEMENT IS SIGNED. 4. TRANSFERRED EMPLOYEE IS NOT ENTITLED TO REIMBURSEMENT FOR TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS OR FOR PER DIEM AND TRAVEL EXPENSES FOR HIS WIFE SINCE TRAVEL BY WIFE AND TRANSPORTATION OF HOUSEHOLD GOODS DID NOT BEGIN WITHIN 2-YEAR PERIOD ALLOWED BY FTR PARA. 2-1.5A(2) (MAY 1973). HOWEVER, CLAIM FOR ADDITIONAL $100 MISCELLANEOUS EXPENSE IS ALLOWED PURSUANT TO FTR PARA. 2-3.3 (MAY 1973) SINCE IT MAY REASONABLY BE CONCLUDED THAT FURTHER MISCELLANEOUS EXPENSES WERE INCURRED AFTER PAYMENT OF FIRST $100 FOR MISCELLANEOUS EXPENSES.

DARYL L. MAHONEY - RELOCATION EXPENSES - TIME LIMITATIONS:

BY LETTER OF JUNE 11, 1974, THE DEPARTMENT OF INTERIOR REQUESTED OUR DECISION REGARDING THE AUTHORITY FOR THE REIMBURSEMENT OF CERTAIN RELOCATION EXPENSES INCURRED BY MR. DARYL L. MAHONEY, AN EMPLOYEE OF THE DEPARTMENT'S BUREAU OF INDIAN AFFAIRS, INCIDENT TO HIS TRANSFER AND PERMANENT CHANGE OF OFFICIAL DUTY STATION.

ON JANUARY 23, 1972, MR. MAHONEY TRAVELED FROM LOS ANGELES, CALIFORNIA TO CHICAGO, ILLINOIS, UNDER TRAVEL ORDER NUMBER TA2K51-01-TC 205, REPORTING FOR DUTY IN CHICAGO ON JANUARY 24, 1972. BY VOUCHER DATED MARCH 28, 1972, MR. MAHONEY WAS REIMBURSED FOR HIS TRAVEL EXPENSES, TEMPORARY QUARTERS AND $100 MISCELLANEOUS EXPENSE ALLOWANCE. ON MARCH 20, 1974, MR. MAHONEY SUBMITTED A VOUCHER REQUESTING REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE IN CALIFORNIA. ON APRIL 17, 1974, MR. MAHONEY SUBMITTED A VOUCHER REQUESTING REIMBURSEMENT FOR (1) TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS; (2) PER DIEM AND TRAVEL EXPENSES FOR HIS WIFE, AND (3) AN ADDITIONAL $100 MISCELLANEOUS EXPENSE ALLOWANCE.

REGARDING THE SALE OF ME. MAHONEY'S HOME, BECAUSE OF FAMILY PROBLEMS, THE TIGHT MONEY MARKET, AND HIGH INTEREST RATES WHICH RESULTED, IN AT LEAST THREE INSTANCES, IN POTENTIAL PURCHASERS BEING UNABLE TO QUALIFY FOR LOANS, IT WAS NOT UNTIL NOVEMBER 17, 1973, THAT A SALES AGREEMENT WAS ENTERED INTO BETWEEN A PURCHASER AND MR. MAHONEY. HOWEVER, THIS AGREEMENT WAS CONTINGENT UPON THE PURCHASER SECURING ADEQUATE FINANCING, AND A 90- DAY ESCROW PERIOD WAS PROVIDED FOR OBTAINING THAT FINANCING. THE CLOSING OR SETTLEMENT DATE FOR THE SALE WAS FEBRUARY 20, 1974. BY LETTER OF APRIL 4, 1974, THE ACTING DEPUTY COMMISSIONER OF INDIAN AFFAIRS GRANTED AN EXTENSION OF TIME THROUGH JANUARY 23, 1974, WHICH COVERED A 2-YEAR PERIOD FROM THE DATE ON WHICH MR. MAHONEY REPORTED TO HIS NEW ASSIGNMENT IN CHICAGO, JANUARY 24, 1972.

SECTION 2-6.1 OF THE FEDERAL TRAVEL REGULATIONS (1973) (FTR) STATES, IN PERTINENT PART:

"2-6.1. CONDITIONS AND REQUIREMENTS UNDER WHICH ALLOWANCES ARE PAYABLE. TO THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT SHALL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION, FOR PURCHASE (INCLUDING CONSTRUCTION) OF ONE DWELLING AT HIS NEW OFFICIAL STATION, OR FOR THE SETTLEMENT OF AN UNEXPIRED LEASE INVOLVING HIS RESIDENCE OR A LOT ON WHICH A MOBILE HOME USED AS HIS RESIDENCE WAS LOCATED AT THE OLD OFFICIAL STATION; PROVIDED, THAT:

"TIME LIMITATION. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN 1 (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION. UPON AN EMPLOYEE'S WRITTEN REQUEST THIS TIME LIMIT FOR COMPLETION OF THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTION MAY BE EXTENDED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE FOR AN ADDITIONAL PERIOD OF TIME, NOT TO EXCEED 1 YEAR, REGARDLESS OF THE REASONS THEREFOR SO LONG AS IT IS DETERMINED THAT THE PARTICULAR RESIDENCE TRANSACTION IS REASONABLY RELATED TO THE TRANSFER OF OFFICIAL STATION."

THE ABOVE PROVISIONS PROVIDE THAT REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF AN EMPLOYEE'S RESIDENCE IS ALLOWABLE, PROVIDED THE SETTLEMENT DATE IS NOT LATER THAN 1 YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION. AN EXTENSION OF THIS PERIOD, NOT TO EXCEED 1 YEAR, IS PERMITTED WHEN THERE IS A DELAY IN COMPLETING THE ARRANGEMENTS. AT THIS POINT IT SHOULD BE POINTED OUT THAT WHILE WE WOULD HAVE NO OBJECTION TO THE GRANTING OF AN EXTENSION AT ANY TIME DURING THE 2-YEAR PERIOD, PROVIDED IT IS DONE BY AN OFFICIAL AUTHORIZED TO DO SO, IN THE PRESENT CASE THE EXTENSION WAS NOT GRANTED UNTIL AFTER EXPIRATION OF THE 2-YEAR PERIOD. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE EXTENSION WAS NOT AUTHORIZED. HOWEVER, EVEN HAD THE EXTENSION BEEN PROPER, IT COULD NOT OPERATE TO EXTEND THE TIME LIMITATION BEYOND 2 YEARS. IN THE PRESENT CASE, MR. MAHONEY DID NOT GO TO FINAL SETTLEMENT UNTIL FEBRUARY 20, 1974, ALMOST 25 MONTHS FROM THE DATE ON WHICH HE REPORTED TO HIS NEW DUTY STATION. BECAUSE OF THIS FAILURE TO MEET THE 2-YEAR TIME LIMITATION, THERE IS NO AUTHORITY FOR REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF MR. MAHONEY'S HOME, REGARDLESS OF THE EXTENUATING CIRCUMSTANCES INVOLVED. SINCE THE ABOVE REGULATIONS WERE ISSUED PURSUANT TO 5 U.S.C. SEC. 5724AA)(4) (1970), THEY HAVE THE FORCE AND EFFECT OF LAW AND THEREFORE CANNOT BE MODIFIED BY THIS OFFICE NOR BY THE AGENCY CONCERNED. 49 COMP. GEN. 145, 147 (1969).

WHILE IT MIGHT BE ARGUED THAT THE SALE WAS COMPLETED ON THE DATE OF THE SALES CONTRACT, NOVEMBER 17, 1973, AND THE ESCROW PERIOD WAS MERELY MINISTERIAL, THE FACT REMAINS THAT, AS PREVIOUSLY MENTIONED, THERE WERE AT LEAST THREE OTHER POTENTIAL PURCHASERS WHO, BECAUSE OF INABILITY TO OBTAIN FINANCING, WERE UNABLE TO COMPLETE SALES. THUS, IT WOULD APPEAR THAT THE ESCROW PERIOD WHICH WAS IMPOSED TO GIVE PURCHASERS AN OPPORTUNITY TO OBTAIN FINANCING GOES TO THE HEART OF THE SALE. THEREFORE, WE MUST CONCLUDE THAT THE SALE WAS NOT COMPLETED UNTIL THE EXPIRATION OF THE ESCROW PERIOD.

CONCERNING THE OTHER EXPENSES INCURRED BY MR. MAHONEY, THE HOUSEHOLD GOODS WERE NOT SHIPPED UNTIL FEBRUARY 1974 AND MRS. MAHONEY DID NOT TRAVEL FROM CALIFORNIA TO CHICAGO UNTIL APRIL 1974. IN THIS CONNECTION, FTR PARA. 2-1.5A(2) (MAY 1973) STATES:

"(2) TIME LIMITS FOR BEGINNING TRAVEL AND TRANSPORTATION. ALL TRAVEL, INCLUDING THAT FOR THE IMMEDIATE FAMILY, AND TRANSPORTATION, INCLUDING THAT FOR HOUSEHOLD GOODS ALLOWED UNDER THESE REGULATIONS, SHALL BE ACCOMPLISHED AS SOON AS POSSIBLE. THE MAXIMUM TIME FOR BEGINNING ALLOWABLE TRAVEL AND TRASNPORTATION SHALL NOT EXCEED 2 YEARS FROM THE EFFECTIVE DATE OF THE EMPLOYEES TRANSFER OR APPOINTMENT, ***"

THE EFFECTIVE DATE OF THE TRANSFER OF AN EMPLOYEE TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER IN THE SAME DEPARTMENT OR AGENCY IS THE DATE HE ENTERS UPON DUTY AT THE NEW OFFICIAL DUTY STATION. 29 COMP. GEN. 100, 101 (1949); B-178234, JUNE 18, 1974. THEREFORE, MR. MAHONEY'S TRANSFER WAS EFFECTIVE JANUARY 24, 1972. HIS WIFE TRAVELED FROM LOS ANGELES TO CHICAGO IN APRIL 1974, MORE THAN 2 YEARS BEYOND THE EFFECTIVE DATE OF THE TRANSFER.

IN APPLYING THE WORDS "TRANSPORTATION SHALL NOT EXCEED 2 YEARS FROM THE EFFECTIVE DATE OF THE EMPLOYEE'S TRANSFER" APPEARING IN FTR PARA. 2 1.5A(2) (MAY 1973), IT IS PROPER TO COMPUTE THE BEGINNING OF THE 2-YEAR PERIOD FROM THE TIME THE COMMON CARRIER'S LIABILITY ATTACHES TO THE SHIPMENT, NAMELY, THE TIME THE CARRIER RECEIVES THE GOODS WITH AN ORDER TO FORWARD THEM TO A PARTICULAR DESTINATION. SEE 20 COMP. GEN. 568 (1941). IN THE PRESENT CASE, A BILL OF LADING SHOWS THAT THE NORTH AMERICAN VAN LINES PICKED UP 5,860 POUNDS OF HOUSEHOLD GOODS ON FEBRUARY 20, 1974, AT LOS ANGELES, CALIFORNIA, FOR DELIVERY TO THE EMPLOYEE'S NEW DUTY STATION WHICH WAS MORE THAN 2 YEARS AFTER THE EFFECTIVE DATE OF TRANSFER.

SINCE MRS. MAHONEY TRAVELED FROM LOS ANGELES TO CHICAGO IN APRIL 1974, MORE THAN 2 YEARS BEYOND THE EFFECTIVE DATE OF TRANSFER AND THE TRANSPORTATION OF MR. MAHONEY'S HOUSEHOLD GOODS ALSO OCCURRED MORE THAN 2 YEARS BEYOND THE EFFECTIVE DATE OF TRANSFER, NO LEGAL BASIS EXISTS UPON WHICH PAYMENT MAY BE MADE.

REGARDING MR. MAHONEY'S CLAIM FOR AN ADDITIONAL $100 MISCELLANEOUS EXPENSE ALLOWANCE, FTR PARA. 2-3.3 (1973) PROVIDES THAT AN EMPLOYEE WITH A FAMILY WHO IS ELIGIBLE FOR A MISCELLANEOUS EXPENSE ALLOWANCE WILL BE PAID $200 WITHOUT SUPPORT OR OTHER DOCUMENTATION OF EXPENSES. SINCE IT MAY REASONABLY BE CONCLUDED THAT SOME ADDITIONAL MISCELLANEOUS EXPENSES WERE INCURRED INCIDENT TO THE CHANGE OF STATION, AN ADDITIONAL $100 MAY BE PAID TO INCREASE THE TOTAL MISCELLANEOUS EXPENSE ALLOWANCE PAID TO $200. SEE B -178610, JUNE 21, 1973.

ACCORDINGLY, THE VOUCHERS ARE RETURNED FOR HANDLING AS OUTLINED ABOVE.