B-201574, AUG 24, 1981

B-201574: Aug 24, 1981

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EMPLOYEE MAY NOT BE PAID TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE FOR LODGING COSTS WHERE IT IS ESTABLISHED THAT LODGING. WAS AT EMPLOYEE'S SUMMER RESIDENCE AND THE ONLY EVIDENCE THE EMPLOYEE LOST RENT IS HIS OWN STATEMENT CONCERNING HIS ACTIONS IN THE PAST AND THE RENT HE FEELS APPROPRIATE. STATON - TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE: THE ISSUE PRESENTED IN THIS CASE IS WHETHER AN EMPLOYEE MAY BE PAID THE TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCES FOR LODGING COSTS IN CONNECTION WITH OCCUPANCY OF A SECOND RESIDENCE WHICH HE OWNS AND NORMALLY RENTS OUT DURING 4 WEEKS OF THE SUMMER SEASON. WHERE PROPERTY IS NOT HELD FOR RENTAL PURPOSES. IS ORDINARILY OCCUPIED BY THE EMPLOYEE AND HIS FAMILY DURING MOST OF THE SUMMER MONTHS.

B-201574, AUG 24, 1981

DIGEST: INCIDENT TO A PERMANENT CHANGE OF STATION, EMPLOYEE AND DEPENDENTS OCCUPIED A SECOND RESIDENCE OWNED BY THE EMPLOYEE WHICH NORMALLY HAD BEEN RENTED OUT FOR A 4-WEEK PERIOD BUT OTHERWISE USED AS A PERSONAL RESIDENCE DURING THE SUMMER SEASON. EMPLOYEE MAY NOT BE PAID TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE FOR LODGING COSTS WHERE IT IS ESTABLISHED THAT LODGING, THOUGH TEMPORARY, WAS AT EMPLOYEE'S SUMMER RESIDENCE AND THE ONLY EVIDENCE THE EMPLOYEE LOST RENT IS HIS OWN STATEMENT CONCERNING HIS ACTIONS IN THE PAST AND THE RENT HE FEELS APPROPRIATE. IN CIRCUMSTANCES PAYMENT FOR LOSS OF RENT WOULD BE TOO SPECULATIVE.

GEORGE R. STATON - TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE:

THE ISSUE PRESENTED IN THIS CASE IS WHETHER AN EMPLOYEE MAY BE PAID THE TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCES FOR LODGING COSTS IN CONNECTION WITH OCCUPANCY OF A SECOND RESIDENCE WHICH HE OWNS AND NORMALLY RENTS OUT DURING 4 WEEKS OF THE SUMMER SEASON. WHERE PROPERTY IS NOT HELD FOR RENTAL PURPOSES, BUT IS ORDINARILY OCCUPIED BY THE EMPLOYEE AND HIS FAMILY DURING MOST OF THE SUMMER MONTHS, CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE FOR LODGING MAY NOT BE REIMBURSED BECAUSE THE COST OF OCCUPANCY OF THESE QUARTERS HAS NOT BEEN ESTABLISHED. IN THE CIRCUMSTANCES IT IS TOO SPECULATIVE TO PERMIT PAYMENT UNDER APPLICABLE REGULATIONS.

THE REQUEST FOR AN ADVANCE DECISION IN THIS MATTER WAS PRESENTED BY THE FINANCE AND ACCOUNTING OFFICER OF THE U. S. ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND, DOVER, NEW JERSEY, AND FORWARDED HERE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE (PDTATAC CONTROL NO. 80-33).

MR. GEORGE R. STATON WAS REASSIGNED FROM THE FRANKFORT ARSENAL, PHILADELPHIA, TO THE ARMY ARMAMENT RESEARCH AND DEVELOPMENT COMMAND AT DOVER, NEW JERSEY. HE AND HIS FIVE DEPENDENTS OCCUPIED A SUMMER HOME HE OWNED AT SURF CITY, NEW JERSEY, FROM JUNE 23, 1977, THE DATE THEY VACATED THE RESIDENCE AT THE OLD DUTY STATION, THROUGH AUGUST 21, 1977. MR. STATON STATES THAT THE SUMMER HOME WAS NORMALLY RENTED FOR 4 WEEKS DURING THE SUMMER AT A RENTAL RATE OF $375 PER WEEK AND USED BY HIS FAMILY FOR THE REMAINDER OF THE SUMMER SEASON. HIS CLAIM FOR THE TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE INCLUDED LODGING COSTS BASED UPON A DAILY RATE OF $53.70 FOR 29 DAYS WHICH RATE WAS COMPUTED BY THE CLAIMANT ON THE BASIS OF THE ASSERTED RENTAL VALUE OF THE PROPERTY. MR. STATON ALSO SUBMITTED A CLAIM FOR GROCERIES USED IN THE PREPARATION OF MEALS CONSUMED AT HIS TEMPORARY QUARTERS AND 1 DAY OF COMMERCIAL MEALS. THE TOTAL CLAIM FOR THESE SUBSISTENCE COSTS WAS $582.70, WHICH HAS BEEN PAID.

THE DEPARTMENT OF THE ARMY HAS QUESTIONED THE VALIDITY OF MR. STATON'S CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE SINCE THE TEMPORARY QUARTERS OCCUPIED BY THE EMPLOYEE AND HIS DEPENDENTS WERE OWNED BY HIM. SPECIFICALLY, THE ARMY HAS REQUESTED OUR DECISION AS TO WHETHER MR. STATON IS AUTHORIZED ANY REIMBURSEMENT FOR THE LODGING EXPENSES AND, IF SO, WHETHER THE AMOUNT CLAIMED IS REASONABLE OR EXCESSIVE. THE ARMY HAS ALSO REQUESTED OUR DECISION AS TO WHETHER THE AMOUNT PREVIOUSLY REIMBURSED FOR SUBSISTENCE SHOULD BE COLLECTED IF IT IS DETERMINED THAT MR. STATON IS NOT ENTITLED TO LODGING EXPENSES.

THE TERM "TEMPORARY QUARTERS" IS DEFINED IN FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7) PARA. 2-5.2C (MAY 1973) AS FOLLOWS:

"C. WHAT CONSTITUTES TEMPORARY QUARTERS. THE TERM 'TEMPORARY QUARTERS' REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED."

THE ARMY DOES NOT QUESTION MR. STATON'S STATEMENT THAT HE AND HIS FAMILY OCCUPIED THEIR SUMMER HOME TEMPORARILY. THE PROBLEM RELATES TO THE FACT THAT THE PREMISES OCCUPIED WERE OWNED BY THE EMPLOYEE AND TO THE REASONABLENESS OF THE CHARGES FOR THE LODGINGS. AN EMPLOYEE'S OWNERSHIP OF THE PREMISES OCCUPIED TEMPORARILY DOES NOT NECESSARILY PRECLUDE HIM FROM BEING REIMBURSED FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSE. JOHN H. CURTIS, B-191597, NOVEMBER 8, 1978. SINCE MR. STATON AND HIS FAMILY OCCUPIED THE SUMMER HOME FROM THE SETTLEMENT DATE OF THE SALE OF THE RESIDENCE AT THE OLD DUTY STATION UNTIL THE AGREED POSSESSION DATE ON THE RESIDENCE AT THE NEW DUTY STATION, THOSE QUARTERS MAY BE CONSIDERED TEMPORARY QUARTERS FOR THE PURPOSES OF THESE REGULATIONS.

REGARDING REIMBURSEMENT FOR LODGING COSTS MR. STATON SAYS HE INCURRED, WE NOTE THAT THE PROPERTY IN QUESTION WAS USED PRINCIPALLY AS THE EMPLOYEE'S SUMMER HOME. HOWEVER, WE HAVE RECOGNIZED THAT LODGING COSTS MAY BE REIMBURSED WHERE AN EMPLOYEE OCCUPIES PREMISES HE OWNS AND HOLDS AS A RENTAL PROPERTY IF IT CAN CLEARLY BE SHOWN THAT THE COSTS ATTRIBUTABLE TO SUCH OCCUPANCY WOULD NOT OTHERWISE HAVE BEEN INCURRED.

IN THE PRESENT CASE THE EMPLOYEE SUBMITTED THE FOLLOWING STATEMENT AS A BASIS FOR HIS CLAIM FOR LODGING COSTS:

"THE TEMPORARY QUARTERS OCCUPIED BY MY FAMILY DURING THE ABOVE PERIOD IS LOCATED AT 211 11TH STREET, SURF CITY, N J. THIS PROPERTY IS OWNED BY ME AND IS NORMALLY RENTED FOR FOUR (4) WEEKS EACH SUMMER SEASON. FOR THE BALANCE OF THE SEASON, IT IS CUSTOMARILY USED BY MY FAMILY. THE DAILY AMOUNTS SHOWN FOR LODGING ON C13007 HAVE BEEN ARRIVED AT BY DIVIDING THE NORMAL WEEKLY RENT BY SEVEN (7). THE NORMALY WEEKLY RENT IS THAT AMOUNT CUSTOMARILY CHARGED FOR USE OF THE PROPERTY, INCLUDING UTILITIES, BOATS AND BEACH BADGES OVER THE PAST FOUR (4) YEARS, WITH APPROPRIATE INFLATION REPRESENTING INCREASED COST OF TAXES AND UTILITIES. THE NORMAL CHARGE IS $375.00 PER WEEK, WHICH COMPUTES TO $53.70 PER DAY - THE BASIS OF THE AMOUNT SHOWN IN THE 'COST' COLUMN ADJACENT TO LODGING."

MR. STATON HAS MADE OTHER STATEMENTS REGARDING THESE CLAIMED COSTS BUT THEY ADD LITTLE TO HIS ORIGINAL EXPLANATION. FURTHER, NO OTHER EVIDENCE HAS BEEN PRESENTED IN SUPPORT OF HIS STATEMENTS. HE USED THIS HOME FOR MOST OF THE SUMMER OF 1977, WHEN HE WAS TRANSFERRED, AND NO DOUBT HIS USUAL PRACTICE OF RENTING THE HOME DURING THAT SUMMER WAS CHANGED. HOWEVER, THE INFORMATION PRESENTED DOES NOT DEMONSTRATE THAT HE WAS REQUIRED TO FOREGO RENT BECAUSE OF THE TRANSFER. IN THE CIRCUMSTANCES ANY REIMBURSEMENT BASED ON THE INFORMATION PRESENTED WOULD BE SPECULATIVE AND, THUS, NOT PERMITTED UNDER THE REGULATIONS WHICH PROVIDE FOR REIMBURSEMENT OF COSTS INCURRED.

ACCORDINGLY THE SUPPLEMENTAL CLAIM MAY NOT BE PAID, BUT NO ACTION TO RECOVER THE TEMPORARY QUARTERS SUBSISTENCE EXPENSE ALLOWANCE ALREADY PAID IS REQUIRED. THE VOUCHER SUBMITTED MAY NOT BE PAID AND WILL BE RETAINED HERE.