B-188199, SEP 20, 1977

B-188199: Sep 20, 1977

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MAINTENANCE EXPENSES BECAUSE SUCH EXPENSES ARE COSTS OF ACQUISITION OF PRIVATE PROPERTY AND ARE NOT INCURRED BY REASON OF OFFICIAL TRAVEL OR IN ADDITION TO TRAVEL EXPENSES. MINKEL - TEMPORARY LODGING AT FAMILY RESIDENCE: THIS ACTION IS IN RESPONSE TO A REQUEST DATED JANUARY 18. A TRAVEL AUTHORIZATION ALLOWING BOTH PER DIEM AND ACTUAL SUBSISTENCE WAS ISSUED ON AUGUST 12. EMPLOYEES TRAVELING ON OFFICIAL BUSINESS INSIDE THE CONTINENTAL UNITED STATES ARE ENTITLED TO A PER DIEM ALLOWANCE AT A RATE NOT TO EXCEED $35. NO MINIMUM ALLOWANCE IS AUTHORIZED FOR LODGING SINCE THOSE ALLOWANCES ARE BASED ON ACTUAL LODGING COSTS. EMPLOYEES ARE REQUIRED TO CERTIFY ON THEIR VOUCHERS THAT PER DIEM CLAIMED IS BASED ON THE AVERAGE COST FOR LODGING WHILE ON OFFICIAL TRAVEL WITHIN THE CONTERMINOUS UNITED STATES DURING THE PERIOD COVERED BY THE VOUCHER.'.

B-188199, SEP 20, 1977

EMPLOYEE WHO STAYED AT FAMILY RESIDENCE WHILE PERFORMING TEMPORARY DUTY MAY NOT BE REIMBURSED LODGING EXPENSES BASED ON AVERAGE MORTGAGE, UTILITY, AND MAINTENANCE EXPENSES BECAUSE SUCH EXPENSES ARE COSTS OF ACQUISITION OF PRIVATE PROPERTY AND ARE NOT INCURRED BY REASON OF OFFICIAL TRAVEL OR IN ADDITION TO TRAVEL EXPENSES.

EDWARD J. MINKEL - TEMPORARY LODGING AT FAMILY RESIDENCE:

THIS ACTION IS IN RESPONSE TO A REQUEST DATED JANUARY 18, 1977, FROM MR. WAYNE B. LESHE, AN AUTHORIZED CERTIFYING OFFICER OF THE FEDERAL COMMUNICATIONS COMMISSION (FCC), FOR A DECISION CONCERNING A VOUCHER SUBMITTED BY MR. EDWARD J. MINKEL FOR LODGING EXPENSES INCURRED IN CONNECTION WITH TEMPORARY DUTY PERFORMED IN WASHINGTON, D.C., DURING THE PERIOD AUGUST 19, 1976, TO SEPTEMBER 14, 1976. A TRAVEL AUTHORIZATION ALLOWING BOTH PER DIEM AND ACTUAL SUBSISTENCE WAS ISSUED ON AUGUST 12, 1976, AUTHORIZING MR. MINKEL TO TRAVEL FROM PARKRIDGE, ILLINOIS, HIS PERMANENT DUTY STATION, TO WASHINGTON, D.C., FOR TEMPORARY DUTY. DURING THE TIME IN QUESTION MR. MINKEL RESIDED AT HIS FAMILY HOME IN ANNANDALE, VIRGINIA, PART OF METROPOLITAN WASHINGTON, D.C., AND COMMUTED FROM THE FAMILY RESIDENCE TO THE FCC OFFICES FOR TEMPORARY DUTY. TO ARRIVE AT THE COST OF LODGING, MR. MINKEL PRORATED THE EXPENSES OF MAINTAINING THE FAMILY RESIDENCE FOR THE PERIOD OF TEMPORARY DUTY.

IN MATTER OF SANFORD O. SILVER, 56 COMP.GEN. 223 (1977), WE CONSIDERED WHETHER A TRANSFERRED EMPLOYEE COULD BE REIMBURSED FOR LODGING COSTS WHILE STAYING IN HIS FORMER RESIDENCE INCIDENT TO A TEMPORARY DUTY ASSIGNMENT AFTER HE HAD REPORTED TO HIS NEW STATION. WE HELD THAT HE COULD NOT BE REIMBURSED FOR LODGING EXPENSES BASED ON AVERAGE MORTGAGE, UTILITY, AND MAINTENANCE EXPENSES STATING, IN PERTINENT PART, AS FOLLOWS:

"SECTION 5702 OF TITLE 5, U.S.C. AS AMENDED BY PUBLIC LAW 94-22, MAY 19, 1975, PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES, EMPLOYEES TRAVELING ON OFFICIAL BUSINESS INSIDE THE CONTINENTAL UNITED STATES ARE ENTITLED TO A PER DIEM ALLOWANCE AT A RATE NOT TO EXCEED $35. IMPLEMENTING REGULATIONS APPEAR IN THE FEDERAL TRAVEL REGULATIONS (FPMR 101-7), FTR PARA. 1 7.3C(1), AS AMENDED EFFECTIVE MAY 19, 1975, WHICH PROVIDES THAT PER DIEM SHALL BE ESTABLISHED ON THE AMOUNT THE TRAVELER PAYS FOR LODGING, PLUS A $14 ALLOWANCE FOR MEALS AND MISCELLANEOUS EXPENSES. FTR PARA. 1 7.3C(1)(A) REQUIRES THAT IN COMPUTING PER DIEM ALLOWANCES, THERE SHOULD BE EXCLUDED FROM THE COMPUTATION THE NIGHTS THE EMPLOYEE SPENDS AT HIS RESIDENCE OR OFFICIAL DUTY STATION. MORE SPECIFICALLY, FTR PARA. 1 7.3C(2) (MAY 19, 1975) REQUIRES THAT THE TRAVELER ACTUALLY INCUR EXPENSES FOR LODGING BEFORE ALLOWING SUCH AN ALLOWANCE, AND PROVIDES AS FOLLOWS:

'2. NO MINIMUM ALLOWANCE IS AUTHORIZED FOR LODGING SINCE THOSE ALLOWANCES ARE BASED ON ACTUAL LODGING COSTS. RECEIPTS FOR LODGING COSTS MAY BE REQUIRED AT THE DISCRETION OF EACH AGENCY; HOWEVER, EMPLOYEES ARE REQUIRED TO CERTIFY ON THEIR VOUCHERS THAT PER DIEM CLAIMED IS BASED ON THE AVERAGE COST FOR LODGING WHILE ON OFFICIAL TRAVEL WITHIN THE CONTERMINOUS UNITED STATES DURING THE PERIOD COVERED BY THE VOUCHER.'

"AS STATED BY THE COURT OF CLAIMS IN BORNHOFT V. UNITED STATES, 137 CT.CL. 134, 136 (1956):

'A SUBSISTENCE ALLOWANCE IS INTENDED TO REIMBURSE A TRAVELER FOR HAVING TO EAT IN HOTELS AND RESTAURANTS, AND FOR HAVING TO RENT A ROOM * * * WHILE STILL MAINTAINING * * * HIS OWN PERMANENT PLACE OF ABODE. IT IS SUPPOSED TO COVER THE EXTRA EXPENSES INCIDENT TO TRAVELING.'

"UNDER THE RULE SET FORTH IN BORNHOFT, THE ONLY LODGING EXPENSES INCURRED BY A TRAVELER WHICH MAY PROPERLY BE REIMBURSED ARE THOSE WHICH ARE INCURRED BY REASON OF THE TRAVEL AND ARE IN ADDITION TO THE USUAL EXPENSES OF MAINTAINING HIS RESIDENCE."

HERE, THE CLAIMANT MAINTAINED HIS RESIDENCE IN THE WASHINGTON, D.C., AREA. THE COSTS OF PURCHASING AND MAINTAINING THE RESIDENCE PRECEDED AND WERE COMPLETELY INDEPENDENT OF THE TRAVEL WHICH SUBSEQUENTLY RESULTED. THE CLAIMANT OBLIGATED HIMSELF TO PAY THESE COSTS INDEPENDENTLY OF AND WITHOUT REFERENCE TO HIS TRAVEL. IN SHORT HIS MORTGAGE AND MAINTENANCE PAYMENTS WOULD HAVE BEEN MADE IRRESPECTIVE OF THE TRAVEL. AS SUCH THEY ARE NOT PROPERLY FOR REIMBURSEMENT.

ACCORDINGLY, MR. MINKEL IS NOT ENTITLED TO ANY COST OF THE LODGING AT HIS OWN RESIDENCE. THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.

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