B-243017, Aug 6, 1991

B-243017: Aug 6, 1991

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CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility DIGEST: A transferred employee moved into leased quarters at his new duty station with the intention that they were or would become his permanent quarters. Were both disallowed by the agency. Haas was transferred from New York City to Washington. Because the condominium also was available in December 1989. Asserted that it was only temporary housing until his wife and their household belongings arrived from New York. The payment of subsistence expenses while occupying temporary quarters in connection with a transfer is governed by Part 302-5 of the Federal Travel Regulation (FTR). /2/ Section 302-5.2(c) thereof.

B-243017, Aug 6, 1991

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility DIGEST: A transferred employee moved into leased quarters at his new duty station with the intention that they were or would become his permanent quarters, and his wife remained in their leased permanent quarters at the old duty station for several additional weeks before vacating those quarters and joining the employee at the new duty station. He may not be reimbursed temporary quarters subsistence expenses incident to occupying the new quarters during the overlapping period (41 C.F.R. Part 302-5), nor may he be reimbursed expenses incident to his wife's occupancy of the old quarters during that period as an unexpired lease expense (41 C.F.R. Part 302-6).

Robert T. Haas:

This decision responds to a request from the Deputy Assistant Secretary for Financial Management, Department of Veterans Affairs, /1/ concerning the entitlement of Mr. Robert T. Haas to be reimbursed for duplicate housing costs incident to a permanent change of station. Mr. Haas's claims for temporary quarters subsistence expenses in Washington or lease breaking expenses in New York City for the period December 16 29, 1989, were both disallowed by the agency. On appeal by Mr. Haas, we concur with the agency's disallowance.

Mr. Haas was transferred from New York City to Washington, D.C., with a reporting date of December 18, 1989. On November 28, 1989, he and Mrs. Haas executed a 1-year lease on a condominium in Washington effective January 1, 1990. Because the condominium also was available in December 1989, they rented it for the additional period of December 16-31, 1989, to coincide with Mr. Haas's arrival in Washington for duty. Mr. Haas occupied the condominium beginning December 16, 1989, but asserted that it was only temporary housing until his wife and their household belongings arrived from New York. Mrs. Haas remained in their New York apartment until December 29, 1989, when she vacated it and joined Mr. Haas in Washington.

The payment of subsistence expenses while occupying temporary quarters in connection with a transfer is governed by Part 302-5 of the Federal Travel Regulation (FTR). /2/ Section 302-5.2(c) thereof, provides in part that the term "temporary quarters" refers to lodging obtained for the purpose of temporary occupancy after vacating the residence occupied when the transfer was authorized. However, occupancy of such quarters that eventually become the employee's permanent quarters does not prevent payment of the allowance if, in the agency's judgment, the employee shows satisfactorily that those quarters were intended initially to be only temporary.

Quarters into which an employee moves with the intention that they are to be his permanent quarters become his permanent quarters when he moves in. /3/ It is the occupancy of those quarters, not the unrestricted or comfortable use of those quarters, which controls. /4/ Thus, where, as in the present case, the employee occupies quarters at his new station which he leased with the intention of permanent residency, the fact that he characterizes his occupancy of those quarters prior to December 29, 1989, as temporary because his household goods had not arrived, does not alter the fact that the quarters were permanent. /5/

Regarding Mr. Haas's alternative claim for reimbursement for the rental cost of their New York apartment for the period December 16-29, 1989, the facts shows that it was their permanent residence at his old duty station. Since his wife continued to occupy the apartment until December 29, 1989, it never qualified as temporary quarters under section 302- 5.2(c) of the FTR.

Further, since Mrs. Haas resided in the New York apartment until December 29, 1989, when she vacated it and moved to Washington, none of the rent paid on that apartment for the period December 16-29, 1989, qualified for reimbursement under the unexpired lease provisions of section 302-6.2(h) of the FTR. So long as a member of an employee's immediate family remains in occupancy of permanent quarters which are leased at the old station, the employee continues to receive the benefit of the lease and that part of the rent paid for the days of the month during which the apartment was last occupied may not be reimbursed. Patsy S. Ricard, 67 Comp.Gen. 285 (1988); and B-174353, Nov. 21, 1971.

/1/ Mr. Frank D. Derville, Reference: 047G4.

/2/ 41 C.F.R. Part 302-5 (1989).

/3/ Kent N. Rosenlof, 66 Comp.Gen. 701 (1987) and Walter E. Murphy, Jr., B-226362, Nov. 23, 1987.

/4/ Ronald A. Kreizenback, B-213827, Apr. 2, 1984, and decisions cited, including Robert N. Havens, B-194837, Aug. 8, 1979, referred to by the agency.

/5/ Kent N. Rosenlof, supra, citing to Henry W. Whitley, B-198026, June 11, 1980.