B-201478.OM, AUG 7, 1981

B-201478.OM, AUG 7, 1981

DIGEST: NEW APPOINTEE TO FOREIGN SERVICE, RESIDENT OF CALIFORNIA, STAYED IN RENTAL PROPERTY SHE OWNED IN WASHINGTON D. C., DURING IN TRAINING/TDY ASSIGNMENT TO WASHINGTON. EMPLOYEE MAY BE REIMBURSED FOR LODGING COSTS BASED ON PRORATED INTEREST, TAXES, AND UTILITIES, AS THOSE COSTS ARE DIRECTLY ATTRIBUTABLE TO EMPLOYEE'S TRAVEL. 57 COMP.GEN. 147 (1977). 56 COMP.GEN. 223 (1977) DISTINGUISHED. FACT THAT EMPLOYEE DID NOT HAVE A PERMANENT RESIDENCE DOES NOT BAR ENTITLEMENT TO SUBSISTENCE EXPENSES.

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MS. GRETCHEN S. BRAINERD FOR LODGING EXPENSES INCURRED ON TEMPORARY DUTY (TDY) WHILE OCCUPYING A RENTAL PROPERTY SHE OWNS AT THE TDY STATION.

MS. BRAINERD RECEIVED AN APPOINTMENT TO THE FOREIGN SERVICE WHILE LIVING IN CALIFORNIA. SHE WAS ASSIGNED TO DUTY FOR TRAINING/TDY IN WASHINGTON, D. C. AND HOUSEHOLD EFFECTS WERE AUTHORIZED FOR STORAGE IN SAN FRANCISCO PENDING ASSIGNMENT TO A PERMANENT POST. THE CLAIMANT OWNS A RENTAL PROPERTY IN FALLS CHURCH, VIRGINIA WHICH BECAME AVAILABLE FOR OCCUPANCY COINCIDENTAL TO HER ASSIGNMENT TO WASHINGTON WHEN THE TENANT DECIDED TO VACATE THE PROPERTY.

MS. BRAINERD DECIDED TO OCCUPY HER FALLS CHURCH PROPERTY UNTIL BEING FURTHER ASSIGNED BY HER AGENCY; IN EFFECT, SHE CONSIDERED HERSELF HER OWN TENANT AND CLAIMED MORTGAGE AND UTILITY EXPENSES AS LODGING EXPENSES WHILE ON TDY IN WASHINGTON. HER AGENCY DENIED THE CLAIM BECAUSE "THE CLAIMANT OBLIGATED HIMSELF TO PAY MORTGAGE COSTS INDEPENDENT OF AND WITHOUT REFERENCE TO THIS TRAVEL." B-174983, MARCH 31, 1972 AND 56 COMP.GEN. 223. MS. BRAINERD CONTENDS, HOWEVER, THAT THE FALLS CHURCH PROPERTY IS A RENTAL PROPERTY, THAT MORTGAGE AND UTILITY EXPENSES PAID BY HER DURING THE PERIOD OF HER CLAIM WERE INCURRED SOLELY BY REASON OF HER TRAVEL AND IN ADDITION TO TRAVEL EXPENSES.

IN 57 ID. 147, LODGING COSTS, BASED ON PRORATED MONTHLY INTEREST CHARGES, PROPERTY TAXES AND UTILITY COSTS ACTUALLY INCURRED, WERE ALLOWED UNDER CIRCUMSTANCES WHERE A CLAIMANT PURCHASED A RESIDENCE AT HIS TDY STATION WHILE MAINTAINING A PERMANENT RESIDENCE AT HIS OFFICIAL DUTY STATION. SIMILAR ALLOWANCES WERE AUTHORIZED IN B-192435, JUNE 7, 1979. IN BORNHOFT V. UNITED STATES, 137 CT.CL. 134 (1956), IT WAS STATED:

"A SUBSISTENCE ALLOWANCE IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN HOTELS AND RESTAURANTS, AND FOR HAVING TO RENT A ROOM *** WHILE STILL MAINTAINING *** HIS OWN PERMANENT PLACE OF ABODE. IT IS SUPPOSED TO COVER THE EXTRA EXPENSES INCIDENT TO TRAVELING."

IN THE PRESENT CASE, HOWEVER, THE CLAIMANT WAS AUTHORIZED STORAGE OF HOUSEHOLD EFFECTS IN SAN FRANCISCO. THERE IS NO EVIDENCE THAT MS. BRAINERD MAINTAINED A PERMANENT RESIDENCE ANYWHERE WHILE ASSIGNED TO TDY IN WASHINGTON.

IN VIEW OF THE DOUBT AS TO THE CLAIMANT'S ENTITLEMENT UNDER THE UNUSUAL CIRCUMSTANCES OF THE CLAIM, THE MATTER IS FORWARDED FOR YOUR CONSIDERATION AND INSTRUCTIONS. FOR FURTHER INFORMATION, PLEASE CONTACT HUGH DELANEY, EXT. 53218.

INDORSEMENT

ASSOCIATED DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. MS. BRAINERD, A RESIDENT OF CALIFORNIA, WAS APPOINTED TO A POSITION IN THE FOREIGN SERVICE AND ASSIGNED TO WASHINGTON, D. C., FOR TRAINING AND TEMPORARY DUTY. SHE WAS AUTHORIZED STORAGE OF HOUSEHOLD EFFECTS IN CALIFORNIA PENDING PERMANENT ASSIGNMENT. THE EMPLOYEE OWNED RENTAL PROPERTY IN THE WASHINGTON METROPOLITAN AREA WHICH COINCIDENTALLY BECAME VACANT AT TIME OF HER ASSIGNMENT TO WASHINGTON. SHE OCCUPIED SAID RENTAL PROPERTY DURING HER TDY ASSIGNMENT. YOU INQUIRE WHETHER THE EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF LODGING EXPENSES IN LIGHT OF OUR DECISION MATTER OF SILVER, 56 COMP.GEN. 223 (1977), AND UNDER THE HOLDING IN BORNHOFT V. UNITED STATES, 137 CT.CL. 134 (1956), SINCE SHE DID NOT MAINTAIN A PERMANENT RESIDENCE DURING HER ASSIGNMENT TO WASHINGTON.

IN SILVER WE HELD THAT AN EMPLOYEE WAS NOT ENTITLED TO CLAIM PRORATED MORTGAGE PAYMENTS AS A LODGING EXPENSE BECAUSE HE WAS ALREADY OBLIGATED TO PAY THESE COSTS INDEPENDENTLY OF HIS TRAVEL. IN BORNHOFT THE COURT HELD THAT LODGING EXPENSES MAY BE REIMBURSED ONLY IF THEY ARE INCIDENT TO TRAVEL AND IN ADDITION TO THE USUAL EXPENSE OF MAINTAINING A RESIDENCE.

WE DO NOT FIND THAT THOSE DECISIONS ARE CONTROLLING IN THIS SITUATION. SILVER INVOLVED AN EMPLOYEE WHO MAINTAINED TWO SEPARATE RESIDENCES FOR FAMILY REASONS AND INCURRED NO ADDITIONAL EXPENSES WHEN LODGING IN THE SECOND RESIDENCE WHILE ON TEMPORARY DUTY. IN BORNHOFT THE EMPLOYEE INCURRED NO ADDITIONAL EXPENSES SINCE HE RESIDED IN HIS PERMANENT RESIDENCE WHILE ON TEMPORARY DUTY. SILVER AND BORNHOFT BOTH REFER TO SUBSISTENCE EXPENSES AS THOSE EXPENSES PAYABLE IN ADDITION TO THE COST OF MAINTAINING A RESIDENCE, THAT IS, AN ALLOWANCE TO COVER THE EXTRA EXPENSES OF TRAVEL. HOWEVER, NEITHER DECISION INTENDED TO PRECLUDE THE PAYMENT OF SUBSISTENCE EXPENSES BECAUSE AN EMPLOYEE IS TEMPORARILY WITHOUT A PERMANENT RESIDENCE WHILE ON A TEMPORARY DUTY OR TRAINING ASSIGNMENT. SEE JAMES H. QUIGGLE, B-192435, JUNE 7, 1973, AND WILLIAM B. HENDRICKS, B-199525, MAY 6, 1981.

MS. BRAINERD'S SITUATION CAN FURTHER BE DISTINGUISHED FROM SILVER AND BORNHOFT SINCE THE DWELLING SHE OCCUPIED DURING THE TDY ASSIGNMENT WAS NEITHER HER PERMANENT RESIDENCE NOR A SECOND RESIDENCE, BUT A RENTAL PROPERTY.

AS YOU POINTED OUT IN YOUR MEMORANDUM, WE PERMITTED THE PAYMENT OF LODGING COSTS BASED ON PRORATED MONTHLY INTEREST, TAXES, AND UTILITIES AT A TDY STATION IN MATTER OF LARRABEE, 57 COMP.GEN. 147 (1977), WHERE THE EMPLOYEE'S PURCHASE AND OCCUPANCY OF A RESIDENCE AT HIS TDY LOCATION WAS A RESULT OF THAT ASSIGNMENT. AS IN LARRABEE, WE BELIEVE THAT THE COSTS ASSOCIATED WITH AN EMPLOYEE'S OCCUPANCY OF A DWELLING HE OWNS AND HOLDS EXCLUSIVELY FOR RENTAL PURPOSES MAY BE REGARDED AS COSTS OCCASIONED BY THE TDY ASSIGNMENT. IN VIEW OF MS. BRAINERD'S STATEMENT THAT THE FALLS CHURCH HOUSE WAS A RENTAL PROPERTY SHE MAY BE ALLOWED LODGING COSTS BASED ON THE PRO RATA INTEREST, TAX AND UTILITY COSTS OF THE RESIDENCE.