B-182718, FEB 4, 1975

B-182718, FEB 4, 1975

EMPLOYEE WHO HAD ENTERED INTO CONTRACT FOR SALE OF RESIDENCE BUT WAS UNABLE TO SETTLE WITHIN 1 YEAR FROM DATE OF TRANSFER AND WHO OBTAINED 1 YEAR EXTENSION BUT WAS UNABLE TO COMPLETE SETTLEMENT BEFORE EXPIRATION OF EXTENSION MAY NOT BE REIMBURSED FOR EXPENSES INCURRED UNDER SECTION 4.1E OF OMB CIRCULAR NO. A-56. APPLICABLE REGULATION IS STATUTORY IN NATURE AND MAY NOT BE WAIVED BY GAO IN INDIVIDUAL CASES. 49 COMP. GEN. 145. SETTLEMENT BY TCD DENYING REIMBURSEMENT IS SUSTAINED.

REO V. REA - REIMBURSEMENT OF REAL ESTATE EXPENSES:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE NO. Z 2536304 DATED SEPTEMBER 27, 1974, BY THE TRANSPORTATION AND CLAIMS DIVISION (TCD), DISALLOWING THE CLAIM OF MR. REO V. REA FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE UPON TRANSFER OF HIS OFFICIAL DUTY STATION ON SEPTEMBER 27, 1971, AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT A CONTRACT FOR THE SALE OF MR. REA'S RESIDENCE WAS ENTERED INTO ON JULY 14, 1972, WITH A SETTLEMENT DATE WITHIN 380 DAYS FROM THE DATE THEREOF. ON THE BASIS OF THIS CONTRACT, MR. REA REQUESTED AND WAS GRANTED BY THE ADMINISTRATIVE OFFICE AN EXTENSION OF 1 YEAR WITHIN WHICH TO SETTLE FOR THE SALE OF HIS RESIDENCE. THIS CONTRACT APPARENTLY WAS NOT CARRIED OUT AND THE EMPLOYEE SIGNED A NEW CONTRACT ON OCTOBER 3, 1973, MORE THAN 2 YEARS FROM THE DATE OF HIS TRANSFER WHICH CONTRACT CARRIED A PROVISION FOR SETTLEMENT WITHIN 30 DAYS. THE SETTLEMENT TOOK PLACE ON OCTOBER 19, 1973, SOME 22 DAYS AFTER THE EXPIRATION OF THE 1-YEAR EXTENSION GRANTED BY THE ADMINISTRATIVE OFFICE.

UPON COMPLETION OF THE SETTLEMENT, THE CLAIM FOR REIMBURSEMENT OF EXPENSES IN CONNECTION WITH THE REAL ESTATE TRANSACTION IN THE AMOUNT OF $1,411 WAS FORWARDED TO TCD FOR DIRECT SETTLEMENT.

THE CLAIM WAS DISALLOWED BY TCD ON SEPTEMBER 27, 1974, ON THE GROUND OF SECTION 4.1E OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A 56, REVISED AUGUST 17, 1971, WHICH PROVIDES AMONG OTHER THINGS AS FOLLOWS:

"SECTION 4. ALLOWANCES FOR EXPENSES INCURRED IN CONNECTION WITH RESIDENCE TRANSACTIONS

"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:

"E. TIME LIMITATION. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE (INITIAL) YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT (1) AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION, OR (2) AN ADDITIONAL PERIOD OF TIME NOT IN EXCESS OF ONE YEAR MAY BE AUTHORIZED OR APPROVED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE WHEN HE DETERMINES THAT CIRCUMSTANCES JUSTIFYING THE EXCEPTION EXIST WHICH PRECLUDED SETTLEMENT WITHIN THE INITIAL ONE YEAR PERIOD OF THE SALE/PURCHASE CONTRACTS OR LEASE TERMINATION ARRANGEMENT ENTERED INTO IN GOOD FAITH BY THE EMPLOYEE WITHIN THE INITIAL ONE-YEAR PERIOD. THE CIRCUMSTANCES WHICH ARE DETERMINED BY THE HEAD OF THE AGENCY OR HIS DESIGNEE TO JUSTIFY THE EXCEPTION UNDER (2) ABOVE SHALL BE SET FORTH IN WRITING."

IN HIS APPEAL FOR RECONSIDERATION, MR. REA PLEADS THE SERIES OF SALES CONTRACTS AND THE DELAYS CAUSED BY RECTIFICATION OF HOUSING CODE VIOLATIONS AS EXTENUATING CIRCUMSTANCES WHICH PUSHED THE SETTLEMENT DATE BEYOND THE 2-YEAR PERIOD AS PROVIDED BY THE APPLICABLE REGULATIONS.

THE OMB CIRCULAR NO. A-56 IS A REGULATION WHICH IS STATUTORY IN NATURE AND HAS THE FORCE AND EFFECT OF LAW WHICH THIS OFFICE CANNOT WAVE OR MODIFY IN INDIVIDUAL CASES REGARDLESS OF THE EXTENUATING CIRCUMSTANCES. SEE 49 COMP. GEN. 145 (1969).

ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 27, 1974, BY THE TCD DISALLOWING THE CLAIM OF MR. REO V. REA FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE AT HIS OLD OFFICIAL DUTY STATION IS HEREBY SUSTAINED.