B-180509, OCT 25, 1974

B-180509: Oct 25, 1974

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STATE DEPARTMENT EMPLOYEE WHO SHIPPED AN AUTOMOBILE FROM GERMANY TO IRAN IS ENTITLED TO TRANSPORTATION ALLOWANCE UNDER 22 U.S.C. 1138 (1970) BASED ON IRANIAN CUSTOMS DOCUMENT ESTABLISHING THAT HE WAS THE LEGAL OWNER OF THE CAR. THE FACTS ARE AS FOLLOWS: "MR. WAS ISSUED BY THE BMW FACTORY IN MUNICH. PRECHT." 22 U.S.C. 1138 (1970) AND THE REGULATIONS ISSUED UNDER THAT STATUTE PROVIDE THAT PAYMENT OF THE TRANSPORTATION EXPENSES OF A MOTOR VEHICLE IS AUTHORIZED WHEN THE VEHICLE IS "PRIVATELY OWNED.". BECAUSE UNDER GERMAN LAW TITLE DOES NOT PASS UNTIL THE FULL PURCHASE PRICE IS PAID. WE CONSIDERED THE MANUFACTURER'S STATEMENT THAT PAPERS COULD HAVE BEEN ISSUED SHOWING THAT MR. PRECHT WAS THE OWNER AT THE TIME THE VEHICLE LEFT THE FACTORY A LEGAL CONCLUSION RATHER THAN A FACT AND SUSTAINED THE DISALLOWANCE OF THE CLAIM.

B-180509, OCT 25, 1974

STATE DEPARTMENT EMPLOYEE WHO SHIPPED AN AUTOMOBILE FROM GERMANY TO IRAN IS ENTITLED TO TRANSPORTATION ALLOWANCE UNDER 22 U.S.C. 1138 (1970) BASED ON IRANIAN CUSTOMS DOCUMENT ESTABLISHING THAT HE WAS THE LEGAL OWNER OF THE CAR.

HENRY PRECHT - TRANSPORTATION EXPENSES FOR AUTOMOBILE:

MR. HENRY PRECHT, AN EMPLOYEE OF THE DEPARTMENT OF STATE, HAS REQUESTED RECONSIDERATION OF DECISION, B-180509, JUNE 11, 1974, IN WHICH WE SUSTAINED THE DISALLOWANCE OF MR. PRECHT'S CLAIM FOR $565.15 FOR TRANSPORATION EXPENSES OF A NEW AUTOMOBILE FROM GERMANY TO IRAN.

AS STATED IN THAT PREVIOUS OPINION, THE FACTS ARE AS FOLLOWS:

"MR. PRECHT CLAIMED THE AFOREMENTIONED EXPENSE IN CONNECTION WITH HIS PERMANENT CHANGE OF STATION FROM PORT LOUIS, MAURITIUS TO TEHRAN, IRAN, UNDER DEPARTMENT OF STATE TRAVEL AUTHORIZATION NO. 2-63032 DATED MARCH 13, 1972, WHICH AUTHORIZED THE SHIPMENT OF THE EMPLOYEE'S PRIVATELY OWNED VEHICLE. INSTEAD OF SHIPPING A VEHICLE FROM HIS OLD STATION, MR. PRECHT ORDERED A NEW BMW AUTOMOBILE FROM A LOCAL DEALER SHORTLY AFTER HIS ARRIVAL IN TEHRAN. THE RECORD INDICATES THAT THE EMPLOYEE MADE AN $800 DEPOSIT ON SEPTEMBER 14, 1972. UPON DELIVERY OF THE VEHICLE IN EARLY JANUARY 1973, THE EMPLOYEE RECEIVED A STATEMENT DATED JANUARY 2, 1973, FROM THE TEHRAN DEALER WHICH ITEMIZED THE COSTS OF THE VEHICLE, ACCESSORIES, TRANSPORTATION, INSURANCE AND DEALER PREPARATION. THE EMPLOYEE PAID THE BALANCE DUE OF $2,915.62 ON JANUARY 3, 1973. ON JANUARY 6, 1973, THE EMPLOYEE OBTAINED AN INVOICE FROM THE FREIGHT FORWARDER FOR TRANSPORTATION COSTS, WHICH HAD BEEN INCLUDED IN THE CHECK HE GAVE TO THE BMW TEHRAN DEALER. SUBSEQUENTLY, AN INVOICE (RECHNUNG) DATED JANUARY 22, 1973, WAS ISSUED BY THE BMW FACTORY IN MUNICH, AND FORWARDED TO MR. PRECHT."

22 U.S.C. 1138 (1970) AND THE REGULATIONS ISSUED UNDER THAT STATUTE PROVIDE THAT PAYMENT OF THE TRANSPORTATION EXPENSES OF A MOTOR VEHICLE IS AUTHORIZED WHEN THE VEHICLE IS "PRIVATELY OWNED."

BECAUSE UNDER GERMAN LAW TITLE DOES NOT PASS UNTIL THE FULL PURCHASE PRICE IS PAID, WE CONSIDERED THE MANUFACTURER'S STATEMENT THAT PAPERS COULD HAVE BEEN ISSUED SHOWING THAT MR. PRECHT WAS THE OWNER AT THE TIME THE VEHICLE LEFT THE FACTORY A LEGAL CONCLUSION RATHER THAN A FACT AND SUSTAINED THE DISALLOWANCE OF THE CLAIM. IN THIS CONNECTION WE HAVE CONSISTENTLY HELD THAT THE EMPLOYEE MUST HAVE TITLE TO QUALIFY FOR THE TRANSPORTATION ALLOWANCE. 10 COMP. GEN. 268 (1930); B-175176, MARCH 31, 1972; B-176295, AUGUST 4, 1972.

HOWEVER, IN SUSTAINING THE DISALLOWANCE OF MR. PRECHT'S CLAIM, WE WERE MINDFUL OF THE FACT THAT ARRNGEMENTS FOR SHIPMENT AND INSURANCE WERE MADE ON HIS BEHALF. THEREFORE, WE STATED THAT WE WOULD ACCEPT AS PROOF OF OWNERSHIP ANY OF THE FOLLOWING:

(1) A PRE-EXISTING SALES AGREEMENT INDICATING THAT TITLE WAS TO PASS AT THAT TIME, (2) A STATEMENT FROM THE INSURANCE COMPANY INDICATING THAT THE EMPLOYEE WAS THE LEGAL BENEFICIARY ON THE SHIPMENT POLICY IN THE EVENT OF LOSS OR DAMAGE DURING TRANSIT, (3) A STATEMENT FROM THE IRANIAN CUSTOMS OFFICE THAT THE EMPLOYEE WAS THE LEGAL OWNER OF THE VEHICLE WHEN IT FIRST ARRIVED IN IRAN, OR (4) EVIDENCE THAT NO INTERVENING PARTY HAD TITLE TO THE AUTOMOBILE BETWEEN THE MANUFACTURER AND THE EMPLOYEE.

MR. PRECHT HAS NOW SUBMITTED THE IRANIAN ENTRY PERMIT WHICH INDICATES THAT HE WAS THE LEGAL OWNER OF THE VEHICLE AND THAT NO CUSTOMS DUTY WAS DUE BECAUSE IT WAS OWNED BY AN EMBASSY EMPLOYEE. BASED ON THE ADDITIONAL EVIDENCE, WE NOW CONCLUDE THAT THE VEHICLE WAS OWNED BY MR. PRECHT AT THE TIME IT WAS SHIPPED AND THAT HE IS ENTITLED TO THE TRANSPORTATION ALLOWANCE.

ACCORDINGLY, WE HAVE INSTRUCTED OUR TRANSPORTATION AND CLAIMS DIVISION TO ALLOW MR. PRECHT'S CLAIM IF OTHERWISE CORRECT AND A SETTLEMENT WILL BE ISSUED IN DUE COURSE.

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