B-233673, Nov 7, 1989

B-233673, Nov 7, 1989

CIVILIAN PERSONNEL - Relocation - Residence transaction - Miscellaneous expenses - Reimbursement DIGEST: Senior Executive Service (SES) employee requests reimbursement for a real estate purchase deposit forfeited as a result of an involuntary second transfer ordered before the purchase could be completed. The forfeited deposit may not be reimbursed as real estate transaction expenses, however, it was properly reimbursed as miscellaneous expenses, subject to the general limitations established for miscellaneous expense reimbursements which is based on the maximum rate for GS-13. Employee's appointment under the SES does not afford any additional miscellaneous expense reimbursement in excess of this maximum rate.

Gary R. Evans:

This responds to a request for an advance decision from the Department of Agriculture concerning a claim for a forfeited real estate deposit paid by Gary R. Evans, a Senior Executive Service (SES) member, in connection with an attempt to purchase a residence at his new permanent duty station. /1/

The purchase could not be completed and the deposit was forfeited as a result of Mr. Evans receiving orders for a second transfer shortly after arriving at his new station. In accordance with our decision 55 Comp.Gen. 628 (1976), the agency allowed Mr. Evans the maximum miscellaneous expense allowance for both his first and second transfers and allowed him to apply the forfeited deposit against the total of both allowances. This resulted in Mr. Evans receiving total reimbursement for miscellaneous expenses of $3,950.30 based on two such allowances. Each allowance was equal to 2 weeks basic pay at the maximum rate of grade GS-13, which is the maximum miscellaneous expense allowance provided by 5 U.S.C. Sec. 5724a(b) (1982) and implementing regulations in the Federal Travel Regulations (FTR), para. 2-3.3b (Supp. 4, Aug. 23, 1982), incorp. by ref., 41 C.F.R. Sec. 101-7.003 (1988).

Mr. Evans's reimbursement did not equal his total expenses, however, and therefore the agency asks whether there is a provision that would allow him to be reimbursed at a rate greater than the maximum rate of a grade GS -13 since his appointment is under the SES. The answer is no since no provision of law or regulation authorizes any additional miscellaneous expense reimbursement in excess of the maximum rate of GS 13, as provided for in the statute and regulation cited above. /2/

The agency also asks whether Mr. Evans could be reimbursed additional funds under the provisions of 5 U.S.C. Sec. 5724a(a)(4) (1982), which provides for reimbursement of expenses of the sale or purchase of a residence (or the settlement of an unexpired lease), for the forfeited real estate deposit. Our decisions have held that such a forfeited deposit may be claimed as a miscellaneous expense subject to the limitations discussed above, but it may not be claimed as a real estate expense under 5 U.S.C. Sec. 5724a(a)(4) and its implementing regulations. See Marvin K. Eilts, 63 Comp.Gen. 93 (1983), and cases cited therein.

Accordingly, Mr. Evans's claim may not be certified for payment in excess of the maximum miscellaneous expense allowances which he has been allowed.

/1/ The request was submitted by Jeanne R. Digange, an authorized certifying officer of the Office of Finance and Management, National Finance Center.

/2/ While there are some special relocation benefits applicable to SES members, there is no provision which would allow a miscellaneous expense reimbursement at a rate greater than the maximum rate of GS 13.