B-206057, JUN 16, 1982

B-206057: Jun 16, 1982

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DIGEST: AN EMPLOYEE ON TEMPORARY DUTY (TDY) WAS UNEXPECTEDLY ORDERED BACK ON OFFICIAL BUSINESS TO HIS PERMANENT POST OF DUTY (POD) FOR A 3-DAY PERIOD DURING HIS SCHEDULED TDY. THE EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF LODGING EXPENSES FOR AN APARTMENT AT THE TDY SITE FOR THE 3 NIGHTS HE WAS AT HIS POD. PAYMENT IS BASED ON THE AGENCY'S RECOGNITION THAT THE EMPLOYEE ACTED REASONABLY IN RETAINING LODGINGS AT HIS TDY STATION. HYMAN - LODGING EXPENSES AT OFFICIAL DUTY STATION: IS AN EMPLOYEE ON TEMPORARY DUTY (TDY) WHO IS UNEXPECTEDLY ORDERED BACK TO HIS POST OF DUTY ON OFFICIAL BUSINESS FOR A BRIEF PERIOD ALLOWED TO BE REIMBURSED FOR LODGING EXPENSES INCURRED AT HIS TDY SITE FOR THAT PERIOD UNDER A MONTHLY LEASE?

B-206057, JUN 16, 1982

DIGEST: AN EMPLOYEE ON TEMPORARY DUTY (TDY) WAS UNEXPECTEDLY ORDERED BACK ON OFFICIAL BUSINESS TO HIS PERMANENT POST OF DUTY (POD) FOR A 3-DAY PERIOD DURING HIS SCHEDULED TDY. RENT HAD ALREADY BEEN PAID ON AN APARTMENT AT THE TDY SITE ON A MONTHLY BASIS. THE AGENCY DISALLOWED A CLAIM FOR LODGING EXPENSES ON THE RENTED APARTMENT FOR THE 3 NIGHTS THE EMPLOYEE STAYED AT HIS POD. THE EMPLOYEE IS ENTITLED TO REIMBURSEMENT OF LODGING EXPENSES FOR AN APARTMENT AT THE TDY SITE FOR THE 3 NIGHTS HE WAS AT HIS POD. PAYMENT IS BASED ON THE AGENCY'S RECOGNITION THAT THE EMPLOYEE ACTED REASONABLY IN RETAINING LODGINGS AT HIS TDY STATION.

ERNEST L. HYMAN - LODGING EXPENSES AT OFFICIAL DUTY STATION:

IS AN EMPLOYEE ON TEMPORARY DUTY (TDY) WHO IS UNEXPECTEDLY ORDERED BACK TO HIS POST OF DUTY ON OFFICIAL BUSINESS FOR A BRIEF PERIOD ALLOWED TO BE REIMBURSED FOR LODGING EXPENSES INCURRED AT HIS TDY SITE FOR THAT PERIOD UNDER A MONTHLY LEASE? FOR THE FOLLOWING REASONS WE ANSWER THIS QUESTION AFFIRMATIVELY.

THIS QUESTION IS PRESENTED BY MS. ELIZABETH A. ALLEN, AN AUTHORIZED CERTIFYING OFFICER OF THE INTERNAL REVENUE SERVICE (IRS), DEPARTMENT OF THE TREASURY, DALLAS, TEXAS.

MR. ERNEST L. HYMAN, AN IRS EMPLOYEE, WHOSE POST OF DUTY (POD) IS LUBBOCK, TEXAS, WAS AUTHORIZED ACTUAL EXPENSE REIMBURSEMENT, NOT TO EXCEED A MAXIMUM OF $50 PER DAY, WHILE HE WAS ON A TEACHING ASSIGNMENT AT AN IRS TRAINING SITE IN SAN FRANCISCO, CALIFORNIA. THE TEMPORARY DUTY WAS SCHEDULED FOR THE PERIOD OF MAY 27 TO JUNE 27, 1980. WHILE IN SAN FRANCISCO, MR. HYMAN RENTED AN APARTMENT ON A MONTH-TO-MONTH BASIS AND CLAIMED LODGING EXPENSES OF $35.51 DAILY. MR. HYMAN WAS UNEXPECTEDLY ORDERED BACK TO HIS POD FROM JUNE 22 TO JUNE 25, 1980, IN ORDER TO TESTIFY AS A GOVERNMENT WITNESS IN A TAX TRIAL. HE THUS SPENT 3 NIGHTS AT HIS POD (JUNE 22-24). THE LODGING COSTS FOR THOSE NIGHTS, TOTALING $106.53, WERE DISALLOWED BY THE IRS UNDER THE GENERAL RULE THAT PARAGRAPH 1-7.6 OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101 7, MAY 1973), PROHIBITS THE PAYMENT OF PER DIEM OR ACTUAL SUBSISTENCE EXPENSES AT AN EMPLOYEE'S PERMANENT DUTY STATION OR AT THE PLACE OF ABODE FROM WHICH AN EMPLOYEE COMMUTES DAILY TO THE OFFICIAL STATION.

IN CERTAIN CIRCUMSTANCES, HOWEVER, AN EMPLOYEE MAY BE REIMBURSED ON AN ACTUAL EXPENSE BASIS FOR COSTS (FOR EXAMPLE, DEPOSITS ON LODGINGS) INCURRED IN ANTICIPATION OF TEMPORARY DUTY, OR WHEN TEMPORARY DUTY HAS BEEN SHORTENED BY OFFICIAL ORDERS. LODGINGS COSTS INCURRED IN ANTICIPATION OF THE ORIGINALLY ORDERED TEMPORARY DUTY MAY BE PAID EVEN THOUGH THE EMPLOYEE IS NOT IN A TRAVEL STATUS. SEE RAYMOND G. SNODGRASS AND JOHN C. VANRONK, 59 COMP.GEN. 609 (1980), AND CHRIS C. RAINEY AND SIDNEY A. MORSE, 59 COMP.GEN. 612 (1980). IN THOSE CASES WE HELD THAT WHEN AN EMPLOYEE HAS ACTED REASONABLY IN INCURRING OTHERWISE ALLOWABLE LODGING EXPENSES PURSUANT TO TEMPORARY DUTY TRAVEL ORDERS, BUT THE ORDERS ARE LATER CANCELED FOR THE BENEFIT OF THE GOVERNMENT AND THE EMPLOYEE IS UNABLE TO OBTAIN A REFUND, REIMBURSEMENT OF THE EXPENSES SHOULD BE ALLOWED TO HIM AS A TRAVEL EXPENSE TO THE SAME EXTENT THAT THEY WOULD HAVE BEEN IF THE ORDERS HAD NOT BEEN CANCELED.

IT IS OUR VIEW THAT THIS RULE IS LIKEWISE APPLICABLE TO MR. HYMAN'S SITUATION WHICH INVOLVED THE AMENDMENT OF TDY ORDERS BY THE GOVERNMENT FOR A PORTION OF THE ORIGINALLY ORDERED TDY. THUS, WHERE THE AGENCY DETERMINES THAT (1) THE EMPLOYEE ACTED REASONABLY IN INCURRING COSTS OF LODGING, (2) IS UNABLE TO OCCUPY SUCH LODGING BECAUSE OF CONDITIONS BEYOND HIS CONTROL, AND (3) THE COSTS ARE INCURRED INCIDENT TO HIS TEMPORARY DUTY, HE MAY BE REIMBURSED ON AN ACTUAL EXPENSE BASIS FOR THE LODGING COSTS TO THE EXTENT THAT THEY WOULD HAVE BEEN PAID HAD THE TEMPORARY DUTY BEEN PERFORMED.

IN THIS REGARD, WE NOTE THAT SEC. 341(3) OF INTERNAL REVENUE MANUAL 1763, TRAVEL HANDBOOK, WHICH IS CITED BY MR. HYMAN, IS TO THE SAME EFFECT. SEE MILTON J. OLSEN, B-196851, AUGUST 6, 1981, 60 COMP.GEN. .

ACCORDINGLY, THE RECLAIM VOUCHER OF MR. HYMAN FOR $106.53 MAY BE PAID, IF OTHERWISE PROPER.