B-244454, May 27, 1992

B-244454: May 27, 1992

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Was administratively disallowed because the employee executed a 9- month and 14-day lease and continued to live there after expiration of the lease period. Where a longer term lease is involved. There must be a clear indication that the initial period of occupancy was intended only to be temporary. Since there is no strong evidence to show a concerted effort to find other quarters. Curtis Millsap: This decision is in response to a request from the Bureau of Indian Affairs (BIA). Was transferred from Carson City. He was authorized an initial 30 days of temporary quarters occupancy. He states that he could have rented the apartment month to month. Contending that those quarters were permanent because he executed a 9 month lease and continues to live there.

B-244454, May 27, 1992

CIVILIAN PERSONNEL - Relocation - Temporary quarters - Actual subsistence expenses - Reimbursement - Eligibility DIGEST: A transferred employee's temporary quarters subsistence expense (TQSE) claim, was administratively disallowed because the employee executed a 9- month and 14-day lease and continued to live there after expiration of the lease period. On appeal, we sustain the agency's action. While we consider a 6-month lease as being short term, and thus describing temporary quarters, where a longer term lease is involved, and the employee resides there for a protracted period, there must be a clear indication that the initial period of occupancy was intended only to be temporary. Since there is no strong evidence to show a concerted effort to find other quarters, the quarters occupied must be considered permanent from the outset.

Curtis Millsap:

This decision is in response to a request from the Bureau of Indian Affairs (BIA), Department of the Interior, /1/ concerning the entitlement of a BIA employee to be reimbursed temporary quarters subsistence expenses (TQSE) incident to a permanent change of station in August 1990.

We conclude that the employee may not be reimbursed for the following reasons.

Mr. Curtis Millsap, an employee of the BIA, was transferred from Carson City, Nevada, to Phoenix, Arizona, with a reporting date of August 15, 1990. He was authorized an initial 30 days of temporary quarters occupancy. He arrived in Phoenix on August 14, and began temporary quarters occupancy in a motel. He moved his approximately 10,000 pounds of household goods on his own and placed them into storage in a relative's garage in the Phoenix area.

On August 18, 1990, Mr. Millsap executed a lease on a furnished one bedroom apartment for the period August 18, 1990, through May 31, 1991 (9 months, 14 days). He states that he could have rented the apartment month to month, but he executed the lease to minimize his expenses by eliminating a cleaning deposit and payment of the first and last month's rents when he moved in.

On August 31, 1990, he returned to his old duty station to arrange to rent his owned three-bedroom single family residence there and returned to Phoenix on September 4, 1990. He also performed temporary duty travel away from Phoenix during the period September 9-14, 1990, and on September 17, 1990, he requested an additional 30 days temporary quarters occupancy.

On September 25, 1990, Mr. Millsap made claim for subsistence expenses incident to temporary quarters occupancy for the period August 14 to September 12, 1990, and on November 21, 1990, made claim for the period September 13 to October 12, 1990. The Chief, Division of Accounting Management, BIA, disallowed his TQSE claim for the entire period beginning August 18 when he moved into the furnished apartment, contending that those quarters were permanent because he executed a 9 month lease and continues to live there.

Mr. Millsap has appealed that disallowance.

The payment of subsistence expenses incident to temporary quarters occupancy is governed by 5 U.S.C. Sec. 5724a(a)(3) (1988) and the implementing regulations contained in Part 302-5 of the Federal Travel Regulation (FTR). /2/

Section 302-5.2(a)(1) of the FTR provides that a transferred employee may be authorized an initial period of temporary quarters expenses not to exceed 60 days. Section 302-5.2(c) of the FTR provides that the term "temporary quarters" refers to lodging obtained from private or commercial sources for the purpose of temporary occupancy after vacating the residence occupied when the transfer was authorized.

Section 302-5.2(c) also states that occupancy of temporary quarters which eventually become the employee's permanent quarters will not prevent payment of the temporary quarters allowance, if in the agency's judgment, the employee shows satisfactorily that the quarters occupied were intended initially to be only temporary. That section further states that factors to be considered by the agency when making determinations of employee intent are, the duration of the lease, movement of household effects into the quarters, the type of quarters occupied, expressions of intent, the length of occupancy of those quarters, and attempts to secure a permanent dwelling.

The intent of the employee when he rented and occupied those quarters is the threshold determination as to whether the quarters were temporary in nature. /3/ We have held that a 6-month lease is to be considered short- term and not an indication of an intent to begin permanent occupancy of those quarters, even where the employee continues to rent the same quarters on a month-to-month basis for a protracted period after the lease expires. /4/ However, it is our view that where a longer term lease is involved, there must be a clear indication that an initial period of occupancy was intended only to be temporary. This is especially true when the employee resides in those same rented quarters for a protracted period and there is no strong evidence to show that he made a concerted effort to find other larger quarters adequate for his needs.

In the present situation, Mr. Millsap's lease was for more than 6 months and, after its termination, he entered into a new lease and occupied those quarters for at least an additional 1-year period. Other than Mr. Millsap's contentions that he attempted to find other quarters, there is little evidence that he made a serious effort to do so. As a result, we cannot conclude that the apartment occupied on August 18, 1990, was ever intended to be temporary. Therefore, we concur with the agency finding that the quarters in question were permanent and, thus, Mr. Millsap is not entitled to subsistence expenses incident to their occupancy.

/1/ Mr. John P. Duran, Chief, Disbursement Section.

/2/ 41 C.F.R. Part 302-5 (1990).

/3/ Carl A. Zulick, 67 Comp.Gen. 585 (1988), and decisions cited.

/4/ Carl A. Zulick, supra.