B-231660.2, May 24, 1991

B-231660.2: May 24, 1991

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His claim for subsistence expense reimbursement incident to occupancy of those quarters was disallowed. While quarters under a 1 year lease are usually considered permanent. The rented quarters are deemed to be temporary in nature since the employee leased the apartment to obtain a stable-type residence for his daughter and wife for medical reasons. Lived in the apartment for only about 2-1/2 months and moved to a three-bedroom apartment after he was unable to sell his old residence. The employee is entitled to be reimbursed temporary quarters subsistence expenses. Wilson - Temporary Quarters Subsistence Expenses: This decision is in response to a request from the Chief. Department of the Air Force. /1/ The question asked is whether a transferred employee.

B-231660.2, May 24, 1991

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility CIVILIAN PERSONNEL - Relocation - Temporary quarters - Determination - Criteria DIGEST: A transferred employee, with a wife and two teen-age children, executed a 1-year lease on a two-bedroom apartment at his new duty station. His claim for subsistence expense reimbursement incident to occupancy of those quarters was disallowed. While quarters under a 1 year lease are usually considered permanent, under the factors stated in paragraph 2-5.2c of the Federal Travel Regulations, the rented quarters are deemed to be temporary in nature since the employee leased the apartment to obtain a stable-type residence for his daughter and wife for medical reasons; lived in the apartment for only about 2-1/2 months and moved to a three-bedroom apartment after he was unable to sell his old residence; and stored the bulk of his household goods in a temporary storage facility during that period. Therefore, the employee is entitled to be reimbursed temporary quarters subsistence expenses.

Duane C. Wilson - Temporary Quarters Subsistence Expenses:

This decision is in response to a request from the Chief, Accounting and Finance Branch, Department of the Air Force. /1/ The question asked is whether a transferred employee, who executed a 1-year lease agreement on an apartment at his new duty station, may be reimbursed for temporary quarters subsistence expenses (TQSE) during its occupancy. We conclude that he may be reimbursed those expenses, for the following reasons.

BACKGROUND

Mr. Duane C. Wilson, an employee of the agency, transferred from Houston, Texas, to Langley Air Force Base, Virginia, and reported for duty on February 8, 1988. The record shows that prior to reporting for duty, Mr. Wilson took a 4-day househunting trip in order to locate quarters for himself, his wife, and two teen-age children to live in temporarily until he sold his Houston residence and purchased a new residence in Newport News, Virginia. He signed a 1-year lease agreement on a two-bedroom apartment effective February 1, 1988, and moved in.

Mr. Wilson claimed subsistence expense reimbursement for the period beginning February 3, 1988. The Air Force questions the validity of that claim because the 1-year lease for those quarters was more characteristic of quarters which are permanent rather than for quarters which are temporary.

Mr. Wilson argues, in effect, that the reason he chose to temporarily occupy an apartment rather than a motel or other transient type quarters during the period was his family's need for a more stable environment. Since their daughter is deaf, she required daily transportation to and from school by the Virginia Department of Education. In order to properly schedule pickup and delivery, the Department's Office of Transportation needed a nontransient type residence. In addition, Mrs. Wilson was pregnant. As a matter of medical necessity she was required by her physician to remain bedridden until she gave birth to their child in the latter part of May 1988.

In an effort to show that the two-bedroom apartment was only intended to be temporary, Mr. Wilson has provided a receipt dated February 13, 1988, showing that they made a $500 nonrefundable deposit on a residence in the Newport News area. As further evidence of the temporariness of the two- bedroom apartment, he has provided receipts showing rental of a post office box on February 4, 1988, as well as rental of storage space in a local public storage facility where he stored a substantial amount of his household goods during the first 3 months they lived in Newport News.

The record also shows that Mr. Wilson could not obtain an apartment lease for a term less than 1 year, but that the lease on the two bedroom apartment contained an early termination clause. When he learned that he would not be able to sell his Houston residence and would have to forfeit his $500 deposit on a residence in Newport News, he executed a new lease on April 12, 1988, for a three-bedroom apartment in the same apartment complex and moved into it on April 19, 1988.

OPINION

The payment of TQSE is governed by the provisions of 5 U.S.C. Sec. 5724(a)(3) (1988) and the implementing regulations contained in chapter 2, part 5, of the Federal Travel Regulations (FTR). /2/ Paragraph 2 5.2c of the FTR /3/ provides that the term "temporary quarters" refers to lodging obtained from private or commercial sources for the purpose of temporarily occupying quarters after vacating the residence occupied when the transfer was authorized. The factors to be considered in determining whether such quarters are temporary or permanent are: Duration of the lease, the movement of household effects into the quarters, the type of quarters, expressions of intent, attempts to secure a permanent dwelling, and the length of time the employee occupies the quarters.

This Office has consistently held that a determination as to what constitutes temporary quarters is not susceptible of any precise definition, and such a determination must be based upon the facts and circumstances involved in each case. The threshold determination as to whether the quarters were initially temporary in nature is based on the intent of the employee at the time he moves into the dwelling. /4/

As to the duration of the lease, while we have held that the execution of a 1-year lease on a dwelling by an employee at his new duty station is a clear indication that the employee intends to occupy the rented quarters on other than a temporary basis, we have also stated that this Office will examine the remaining five factors in order to ascertain the intent of the employee at the time he initially occupied the quarters. /5/

In this case, while Mr. Wilson leased an apartment for 1 year, he did so because no short-term leases were available and he required a stable-type residence for his daughter and wife for medical reasons. Since they lived there for only about 2-1/2 months and then moved to a three-bedroom apartment after being unable to sell their Houston residence, we conclude that Mr. Wilson intended his family's occupancy of the two-bedroom apartment to be only temporary.

Accordingly, Mr. Wilson may be reimbursed temporary quarters subsistence expenses if otherwise appropriate.

/1/ Captain William V. Miller, Jr. USAF - Reference: ACFPT. Also, the request has been assigned Control No. 88-7 by the Per Diem, Travel and Transportation Allowance Committee.

/2/ Incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1988).

/3/ Supp. 4, Aug. 23, 1982.

/4/ Carl A. Zulick, 67 Comp.Gen. 585 (1988), and cases cited therein.

/5/ Zulick, supra; David M. Shannon, B-230746, Feb. 17, 1989; and Saundra J. Samuels, B-226015, Apr. 25, 1988.