Matter of: Marshall V. Washburn File: B-248301 Date: September 25, 1992

Matter of: Marshall V. Washburn File: B-248301 Date: September 25, 1992

CIVILIAN PERSONNEL Relocation Residence transaction expenses Taxes Reimbursement Eligibility Transferred employee who sold his cooperatively owned apartment may be reimbursed for the cost of a stock transfer tax in accordance with the FTR, 41 C.F.R. Sec. 302-6.2(d)(1)(iv) (1991), and our decision, Zera B. Taylor, 61 Comp.Gen. 136 (1981). CIVILIAN PERSONNEL Relocation Residence transaction expenses Attorney fees Reimbursement Transferred employee utilized the services of a relocation services company in selling his cooperatively owned (Co-op) apartment and paid an attorney to prepare a contract of sale and negotiate with the Co-op Board prior to negotiating with the relocation company. The employee may not be reimbursed for the attorney's fee unless he can show that the legal services were not similar to those provided by the relocation services company. See the FTR, 41 C.F.R. Sec. 302-12.5(b) (1991).

DECISION

The issues presented in this case are whether Mr. Marshall V. Washburn, an employee of the Internal Revenue Service (IRS), Department of the Treasury, is entitled to reimbursement of a stock transfer fee and legal fees incurred in the sale of his cooperatively owned (Co-op) apartment. [1]

Mr. Washburn was transferred from New York City, to Washington, D.C., and reported for duty on August 14, 1989. He paid a stock transfer fee of $300 and an attorney's fee of $495 in connection with the sale of his cooperatively owned apartment in New York City.

Mr. Washburn states that the stock transfer fee was a mandatory tax charged by New York City. With respect to the legal fees, Mr. Washburn reports that the relocation services company handled the final sale transaction but that the additional legal fees he incurred were necessary and reasonable due to the complexity of selling a cooperatively owned apartment. Mr. Washburn contends that in selling a Co-op, unlike the sale of a house or a condominium, there are stringent requirements that must be met. He states that in marketing the apartment, it was necessary to have the contract of sale prepared and negotiated with the Co-op Board prior to being able to negotiate with the relocation services company.

With respect to the stock transfer fee, the Federal Travel Regulation (FTR), 41 C.F.R. Sec. 302-6.2(d)(1)(iv) (1991), allows reimbursement of transfer taxes. The stock transfer fee was a mandatory fee charged by New York City. We have held that the stock transfer fee on a Co-op apartment is a tax imposed by the city. See Zera B. Taylor, 61 Comp.Gen. 136 (1981). Since the tax was occasioned directly by his official change of station and required to be paid on a sale of a cooperatively owned apartment in New York City, reimbursement is proper.

In regard to the attorney's fee paid by Mr. Washburn, the applicable regulation, implementing the statutory authority to enter into relocation services contracts in 5 U.S.C. Sec. 5724c (1988), is contained in the FTR, 41 C.F.R. Sec. 302-12.5(b). That section provides that, once an employee is offered and decides to use the services of a relocation services company, reimbursement shall not be allowed for otherwise authorized expenses (such as attorney and other legal fees) "that are analogous or similar to expenses or the cost for services that the agency will pay for under the relocation services contract."

Here, payment for the company's attorney fees was included in the overall fee paid by IRS to the relocation services company in connection with the sale of the apartment. However, the record does not include an itemized list of the legal services provided by the relocation services company. Therefore, we cannot determine whether the regulation described above bars reimbursement of the fee paid by Mr. Washburn.

We note that the claimant bears the burden of establishing his right to payment. 4 C.F.R. Sec. 31.7 (1991). Therefore, the claim may not be paid unless Mr. Washburn can show that the legal services for which he claims reimbursement were not similar to those provided by the relocation services company and that they were reasonable and customary in New York City in transferring title to a Co-op apartment. [2]

1. The request was submitted by Mr. Steve Goldberg, Chief, Office of Travel Management and Relocation, IRS.

2. See Nathaniel E. Green, 61 Comp.Gen. 352, 355-56 (1982); Matthew J. Maher, B-244730, Jan. 17, 1992; Steven Frank, B-240463, Mar. 22, 1991; Louis H. Schwartz, B-231485, Jan. 19, 1989.