B-212029, AUG. 13, 1984

B-212029: Aug 13, 1984

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SUBSISTENCE - ACTUAL EXPENSES - MEALS DIGEST: 1.AN INTERNAL REVENUE SERVICE (IRS) EMPLOYEE WHO HAD BEEN IN AN ACTUAL SUBSISTENCE EXPENSE TRAVEL STATUS SUBMITTED CLAIM FOR MEAL EXPENSES WHICH WAS FOUND TO BE EXCESSIVE BASED ON SURVEY OF MEAL EXPENSES OF OTHER EMPLOYEES ON SAME TEMPORARY TRAINING ASSIGNMENT. IRS'S REDUCTION OF EMPLOYEE'S MEAL EXPENSE REIMBURSEMENT TO THE AVERAGE AMOUNT REIMBURSED TO OTHER EMPLOYEES ATTENDING SAME TRAINING PROGRAM IS ARBITRARY. THE EMPLOYEE'S CLAIM IS ALLOWED. HE MAY BE REIMBURSED FOR HIS WEEKEND RETURN TRAVEL UNDER PARA. 1-8.4F OF THE FEDERAL TRAVEL REGULATIONS UP TO ACTUAL SUBSISTENCE EXPENSES WHICH WOULD HAVE BEEN ALLOWABLE HAD HE REMAINED AT HIS DUTY SITE FOR THE WEEKEND.

B-212029, AUG. 13, 1984

SUBSISTENCE - ACTUAL EXPENSES - MEALS DIGEST: 1.AN INTERNAL REVENUE SERVICE (IRS) EMPLOYEE WHO HAD BEEN IN AN ACTUAL SUBSISTENCE EXPENSE TRAVEL STATUS SUBMITTED CLAIM FOR MEAL EXPENSES WHICH WAS FOUND TO BE EXCESSIVE BASED ON SURVEY OF MEAL EXPENSES OF OTHER EMPLOYEES ON SAME TEMPORARY TRAINING ASSIGNMENT. IRS'S REDUCTION OF EMPLOYEE'S MEAL EXPENSE REIMBURSEMENT TO THE AVERAGE AMOUNT REIMBURSED TO OTHER EMPLOYEES ATTENDING SAME TRAINING PROGRAM IS ARBITRARY. SINCE THE IRS HAS FAILED TO SUBSTANTIATE A BASIS FOR THE REDUCTION, THE EMPLOYEE'S CLAIM IS ALLOWED. TRAVEL EXPENSES - RETURN TO OFFICIAL STATION ON NONWORKDAYS - ADMINISTRATIVE DETERMINATION - COST ANALYSIS 2. AN EMPLOYEE ON TEMPORARY DUTY RENTED LODGING BY THE MONTH RATHER THAN BY THE DAY, BUT ACTUALLY OCCUPIED THEM FOR A LESSER PERIOD BECAUSE HE VOLUNTARILY RETURNED HOME ON WEEKENDS. HE MAY BE REIMBURSED FOR HIS WEEKEND RETURN TRAVEL UNDER PARA. 1-8.4F OF THE FEDERAL TRAVEL REGULATIONS UP TO ACTUAL SUBSISTENCE EXPENSES WHICH WOULD HAVE BEEN ALLOWABLE HAD HE REMAINED AT HIS DUTY SITE FOR THE WEEKEND, INCLUDING THE AVERAGE COST OF LODGING BASED ON THE MONTHLY RENTAL.

COLEMAN MISHKOFF - REIMBURSEMENT FOR ACTUAL SUBSISTENCE EXPENSES - REASONABLENESS OF MEALS - WEEKEND RETURN TRAVEL:

THIS DECISION IS IN RESPONSE TO AN APPEAL FILED BY MR. COLEMAN MISHKOFF. MR. MISHKOFF, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), IS APPEALING THE DETERMINATION REACHED BY OUR CLAIMS GROUP IN SETTLEMENT CERTIFICATE Z-2844450, APRIL 18, 1983. THE SETTLEMENT DENIED HIS CLAIM FOR ADDITIONAL REIMBURSEMENT FOR MEALS AND FOR VOLUNTARY WEEKEND TRIPS TO HIS RESIDENCE IN NEW YORK WHICH HE INCURRED INCIDENT TO TEMPORARY DUTY IN WASHINGTON, D.C.

MR. MISHKOFF, WHOSE PERMANENT DUTY STATION IS NEW YORK, NEW YORK, WAS ASSIGNED TO WASHINGTON, D.C., FROM OCTOBER 11, 1978, THROUGH NOVEMBER 22, 1978, FOR THE PURPOSE OF ATTENDING A TRAINING COURSE. MR. MISHKOFF WAS AUTHORIZED ACTUAL SUBSISTENCE EXPENSES, NOT TO EXCEED $50 PER DAY. MR. MISHKOFF RENTED AN APARTMENT AT THE TEMPORARY DUTY SITE FROM OCTOBER 11, 1978, THROUGH NOVEMBER 11, 1978, BEFORE SECURING HOTEL ACCOMMODATIONS FOR THE REMAINDER OF THE TEMPORARY DUTY ASSIGNMENT. FOR THE PERIOD DURING WHICH MR. MISHKOFF RENTED THE APARTMENT, A PRO RATA DAILY LODGING COST OF $9.20 WAS OBTAINED BY AVERAGING THE TOTAL RENT OF $230.00 OVER 25 NIGHTS OF OCCUPANCY.

MEAL EXPENSES

MR. MISHKOFF IS RECLAIMING AMOUNTS RELATING TO HIS MEAL EXPENSES FOR THE PERIOD OF OCTOBER 11 - NOVEMBER 10, 1978. MR. MISHKOFF CLAIMED $756 FOR MEALS DURING 24 DAYS, FOR AN AVERAGE DAILY MEAL EXPENSE OF $31.50. HOWEVER, THE IRS REDUCED HIS REIMBURSEMENT BY $276, ALLOWING A TOTAL REIMBURSEMENT OF $480.00 OR $20.00 PER DAY. THE AGENCY BASED ITS ACTION ON ASCERTAINING THAT THE AVERAGE DAILY MEAL EXPENSE CLAIMED BY OTHER EMPLOYEES ATTENDING THE SAME TRAINING CLASS AS MR. MISHKOFF WAS $20.00 PER DAY. SINCE MR. MISHKOFF HAD INCURRED SUBSTANTIALLY LESS LODGING COST THAN THE OTHERS, HIS AGENCY DECIDED THAT HE SHOULD NOT BE ALLOWED TO EXCEED THE AVERAGE MEAL COSTS OF THE OTHERS SO AS TO REAP ANY BENEFIT FROM HIS LODGING SAVINGS. MR. MISHKOFF IS RECLAIMING THIS $276.00 REDUCTION.

AN EMPLOYEE IS ENTITLED TO REIMBURSEMENT ONLY FOR REASONABLE EXPENSES INCURRED INCIDENT TO A TEMPORARY DUTY ASSIGNMENT SINCE TRAVELERS ARE REQUIRED BY PARAGRAPH 1-1.3A OF THE FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SEPTEMBER 1981) (FTR), TO ACT PRUDENTLY IN INCURRING EXPENSES. APPLYING THIS REQUIREMENT TO CLAIMS FOR REIMBURSEMENT OF VARIOUS TYPES OF TRAVEL EXPENSES, THIS OFFICE HAS CONSISTENTLY HELD THAT IT IS THE RESPONSIBILITY OF THE EMPLOYING AGENCY TO MAKE THE INITIAL DETERMINATION AS TO THE REASONABLENESS OF THE CLAIMED EXPENSES. SEE, FOR EXAMPLE, MICHELINE MOTTER AND LINN HUSKEY, B-197621, FEBRUARY 26, 1981. WHERE THE EMPLOYING AGENCY HAS MADE THE INITIAL DETERMINATION OF REASONABLENESS, THIS OFFICE WILL OVERTURN THE AGENCY'S DETERMINATION ONLY WHERE OUR REVIEW OF THE EVIDENCE RESULTS IN A FINDING THAT THE AGENCY'S DETERMINATION WAS CLEARLY ERRONEOUS, ARBITRARY OR CAPRICIOUS. NORMA J. KEPHART, B-186078, OCTOBER 12, 1976. THE BURDEN IS ON THE EMPLOYEE TO PROVE THAT THE AGENCY'S DETERMINATION IS DEFECTIVE. SEE 4 C.F.R. SEC. 31.7 (1984).

IN KEPHART, WE SUGGESTED THAT AGENCIES SHOULD CONSIDER ISSUING WRITTEN GUIDELINES, UNDER THE AUTHORITY OF PARA. 1-8.3B OF THE FTR, TO SERVE AS A BASIS FOR REVIEW OF AN EMPLOYEE'S EXPENSES. IN HARRY G. BAYNE, 61 COMP.GEN. 13 (1981), WE APPROVED AS REASONABLE A GUIDELINE SETTING THE MAXIMUM AMOUNT FOR MEALS AND MISCELLANEOUS EXPENSES AS 46 PERCENT OF THE STATUTORY MAXIMUM, BUT STATED THAT SUCH A GUIDELINE COULD NOT OPERATE AS AN ABSOLUTE BAR TO PAYMENT OF ADDITIONAL AMOUNTS WHEN JUSTIFIED BY THE EMPLOYEE ON THE BASIS OF UNUSUAL CIRCUMSTANCES.

SUBSEQUENT TO MR. MISHKOFF'S TRAVEL, THE IRS ADOPTED WRITTEN GUIDELINES SET FORTH IN INTERNAL REVENUE MANUAL PARAGRAPH 334, WHICH REQUIRES THAT CLAIMS FOR REIMBURSEMENT OF MEALS BE REASONABLE AND CREATES A GENERAL RULE LIMITING THE AMOUNT CONSIDERED REASONABLE FOR MEALS TO 45 PERCENT OF THE MAXIMUM AUTHORIZED ACTUAL SUBSISTENCE RATE. HAD THIS GUIDANCE PERTAINED IN 1978 IT WOULD HAVE RESULTED IN MAKING THE MAXIMUM REIMBURSEMENT FOR MEALS $22.50. SEE JAMES E. DORMAN, B-207039, MARCH 1, 1983.

ALTHOUGH WE WOULD NOT NECESSARILY VIEW AS UNREASONABLE A PREDETERMINED PUBLISHED LIMIT ON REIMBURSEMENT FOR MEALS TO 40 PERCENT OF THE MAXIMUM RATE, THE PERCENTAGE ACTUALLY APPLIED BY IRS TO MR. MISHKOFF, SUCH A LIMITATION WOULD HAVE TO BE APPLIED UNIFORMLY AND CONSISTENTLY. THIS WAS NOT DONE IN THIS CASE. THE IRS ADMITS THAT $20 A DAY FOR MEALS REPRESENTED AN AVERAGE ALLOWANCE FOR MR. MISHKOFF'S CO WORKERS, THEREBY CONCEDING THAT IT ALLOWED HIGHER AMOUNTS TO OTHERS. WE DO NOT BELIEVE THAT THE IRS HAS SUBSTANTIATED A BASIS FOR ALLOWING MR. MISHKOFF LESS THAN HE SPENT FOR MEALS UP TO ANY AMOUNT ALLOWED ANY OTHER EMPLOYEE ATTENDING THE SAME TRAINING AS LONG AS SUCH ALLOWANCE WOULD NOT CAUSE MR. MISHKOFF'S REIMBURSEMENT TO EXCEED THE MAXIMUM DAILY ALLOWANCE OF $50.00. THE CERTIFYING OFFICER CITED OUR HOLDING IN NORMA J. KEPHART, SUPRA, AS JUSTIFICATION FOR HIS DISALLOWANCE. UPON REVIEW OF THE RECORD, IT APPEARS THAT THE CERTIFYING OFFICER HAS APPLIED A MORE STRINGENT STANDARD THAN CONTEMPLATED BY THAT HOLDING.

THEREFORE, WE FIND THAT THE AGENCY ACTION IN REDUCING MR. MISHKOFF'S MEAL ALLOWANCE TO AN AMOUNT EQUAL TO THE AVERAGE DAILY MEAL EXPENSE CLAIMED BY OTHER EMPLOYEES ATTENDING THE SAME TRAINING PROGRAM WAS ARBITRARY. HAVE BEEN ADVISED BY IRS THAT THE INFORMATION AS TO THE ACTUAL AMOUNTS ALLOWED TO MR. MISHKOFF'S COLLEAGUES IS NO LONGER AVAILABLE. UNDER THESE CIRCUMSTANCES, AND IN VIEW OF THE FACT THAT MR. MISHKOFF'S TOTAL CLAIMED REIMBURSEMENT FOR MEALS AND LODGING WAS ALMOST 20 PERCENT LESS THAN THE MAXIMUM DAILY ALLOWANCE, MR. MISHKOFF IS ENTITLED TO BE REIMBURSED FOR HIS MEALS AS CLAIMED.

WEEKEND RETURN TRAVEL

MR. MISHKOFF'S CLAIM ALSO INCLUDES ADDITIONAL EXPENSES WHICH HE INCURRED BUT WHICH WERE NOT ALLOWED FOR VOLUNTARY RETURN TRAVEL EXPENSES TO HIS HOME ON WEEKENDS. THE IRS LIMITED HIS ACTUAL TRANSPORTATION CLAIMS FOR THE WEEKENDS OF OCTOBER 14-15, 21-22, AND 28 29, 1978, AND FOR NOVEMBER 11, 1978, TO SUBSISTENCE SAVINGS, REDUCING HIS ENTITLEMENT BY $207.69. THE IRS PRORATED MR. MISHKOFF'S APARTMENT RENT FOR THE 25 DAYS ACTUALLY SPENT ON THE PREMISES. THE IRS REASONED THAT HAD MR. MISHKOFF ELECTED TO REMAIN IN WASHINGTON OVER THE WEEKENDS WITHIN THE RENTAL PERIOD, NO ADDITIONAL LODGING EXPENSE WOULD HAVE BEEN INCURRED. CONSEQUENTLY, LODGING COSTS WERE EXCLUDED FROM SUBSISTENCE SAVINGS ON WEEKENDS PRIOR TO NOVEMBER 18-19, 1978. MR. MISHKOFF CONSIDERS HIMSELF TO BE UNFAIRLY PENALIZED FOR INCURRING MINIMAL DAILY LODGING EXPENSE AT A SAVINGS TO THE GOVERNMENT AND BELIEVES THAT THE COST OF HOTEL ACCOMMODATIONS SHOULD HAVE BEEN INCORPORATED INTO HIS SUBSISTENCE SAVINGS ALLOWANCES. MR. MISHKOFF ALSO EXPLAINS THAT HE WAS ADVISED IN ADVANCE BY AGENCY PERSONNEL AS TO HIS REIMBURSEMENTS AND THAT SINCE HIS ACTIONS CONFORMED TO THIS ADVICE WHICH HE RELIED UPON IN GOOD FAITH, THE GOVERNMENT SHOULD BE BOUND TO HONOR HIS VOUCHERS.

THE FACT THAT MR. MISHKOFF WOULD NOT HAVE INCURRED ADDITIONAL RENTAL EXPENSE HAD HE REMAINED AT HIS TEMPORARY DUTY STATION ON THE WEEKENDS IN QUESTION DOES NOT REQUIRE THE EXCLUSION OF THE LODGINGS COST FROM HIS CALCULATIONS.

THE FTR, PARA. 1-8.4F STATES IN RELEVANT PART:

"*** IN CASES OF VOLUNTARY RETURN OF A TRAVELER FOR NONWORKDAYS TO THE OFFICIAL STATION OR PLACE OF ABODE FROM WHICH HE/SHE COMMUTES DAILY TO THE OFFICIAL STATION, THE MAXIMUM REIMBURSEMENT ALLOWABLE FOR THE ROUND-TRIP TRANSPORTATION AND ACTUAL SUBSISTENCE EN ROUTE SHALL BE THE NECESSARY TRAVEL AND SUBSISTENCE EXPENSE WHICH WOULD HAVE BEEN ALLOWABLE HAD THE TRAVELER REMAINED AT THE TEMPORARY DUTY STATION."

ALTHOUGH THE RENTAL PERIOD COVERED 31 DAYS, THE IRS CORRECTLY PRORATED THE RENTAL COST OVER 25 DAYS, THE ACTUAL NUMBER OF DAYS THE PREMISES WERE NECESSARILY OCCUPIED FOR TEMPORARY DUTY PURPOSES. JESUS SOTO, JR., B-207527, NOVEMBER 29, 1982, 62 COMP.GEN. 63; JAMES K. GIBBS, 57 COMP.GEN. 821 (1978). AS STATED IN THE REGULATIONS, AN EMPLOYEE MAY BE AUTHORIZED HIS VOLUNTARY RETURN TRAVEL EXPENSES FOR NONWORKDAYS TO HIS OFFICIAL STATION OR PLACE OF ABODE FROM WHICH HE COMMUTES DAILY TO HIS OFFICIAL STATION. THE MAXIMUM REIMBURSEMENT ALLOWABLE FOR THE EMPLOYEE'S ROUND-TRIP TRANSPORTATION AND PER DIEM OR ACTUAL SUBSISTENCE EXPENSES EN ROUTE IS LIMITED TO THE TRAVEL EXPENSES AND PER DIEM OR ACTUAL SUBSISTENCE EXPENSES WHICH WOULD HAVE BEEN ALLOWABLE HAD THE EMPLOYEE REMAINED AT HIS TEMPORARY DUTY STATION. ACCORDINGLY, THE ONLY ISSUE IS DETERMINING THE CONSTRUCTIVE AMOUNT THAT WOULD HAVE BEEN ALLOWABLE IF THE EMPLOYEE HAD NOT RETURNED HOME. BASED UPON THE RATIONALE OF GIBBS AND SOTO, WE BELIEVE THAT THE EMPLOYEE IS ENTITLED TO A CONSTRUCTIVE AMOUNT THAT INCLUDES THE PRO RATA DAILY LODGING COST DETERMINED BY DIVIDING THE WEEKLY OR MONTHLY RENTAL BY THE NUMBER OF NIGHTS OCCUPIED IN CONNECTION WITH THE TEMPORARY DUTY, PROVIDED THAT THE LONGER RENTAL PERIOD WAS PRUDENT AND THE COST TO THE GOVERNMENT DOES NOT EXCEED THE COST OF THE DAILY RATE.

THE CONDITIONS WERE SATISFIED BY MR. MISHKOFF SINCE HE DID ACT PRUDENTLY IN RENTING THE APARTMENT FOR A MONTH AND THE RENTAL WAS SUBSTANTIALLY LESS THAN THE DAILY LODGING COSTS INCURRED BY THE OTHER EMPLOYEES. THEREFORE, BY VIRTUE OF HIS WEEKEND RETURN TRAVEL HE IS, ACCORDING TO THE REGULATIONS, ENTITLED TO A CONSTRUCTIVE OFFSET FOR LODGING EXPENSES OF $64.40 (7 NIGHTS AT $9.20 PER NIGHT) AND THIS AMOUNT MAY BE PAID.

ACCORDINGLY, THE RECLAIM OF MR. MISHKOFF MAY BE ALLOWED TO THE EXTENT CONSISTENT WITH THIS DECISION.