B-167274, NOV. 3, 1970

B-167274: Nov 3, 1970

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WHERE EVIDENCE ESTABLISHES THAT EMPLOYEE'S TRANSFER TO NEW DELHI WAS SUFFICIENTLY CERTAIN AS OF THE TIME OF TRAVEL FROM LIMA TO SAN FRANCISCO. LANGBEIN'S CLAIM WAS THE SUBJECT OF OUR DECISION OF AUGUST 18. MUST BE VIEWED AS A TRANSFER BACK TO SAN FRANCISCO FOR REEMPLOYMENT IN HIS OLD POSITION SINCE SUCH TRAVEL WAS COMPLETED BEFORE THE EMPLOYEE'S TRANSFER TO NEW DELHI HAD BEEN AUTHORIZED. FROM LIMA TO SAN FRANCISCO IN JULY 1967 WAS RELATED TO HIS TRANSFER ORDER OF AUGUST 11. SINCE THE TRAVEL TO NEW DELHI WAS COMMENCED AFTER HER 21ST BIRTHDAY. NEWMAN STATES THAT AT ALL TIMES IT WAS THE INTENT OF THE FOREIGN TAX ASSISTANCE STAFF TO TRANSFER MR. LANGBEIN'S CLEARANCE FROM THE INDIAN GOVERNMENT WAS VERY HIGH SINCE SUCH GOVERNMENT HAD APPROVED ALL PREVIOUS NOMINATIONS.

B-167274, NOV. 3, 1970

TRANSPORTATION OF DEPENDENTS - AGE DECISION TO A CERTIFYING OFFICER AUTHORIZING REIMBURSEMENT TO AN I. R. S. OVERSEAS EMPLOYEE FOR ROUND-TRIP TRAVEL OF HIS DAUGHTER FROM PERU TO INDIA COMMENCED BEFORE HER 21ST BIRTHDAY INCIDENT TO HIS OVERSEAS TRANSFER. WHERE EVIDENCE ESTABLISHES THAT EMPLOYEE'S TRANSFER TO NEW DELHI WAS SUFFICIENTLY CERTAIN AS OF THE TIME OF TRAVEL FROM LIMA TO SAN FRANCISCO, THE TRAVEL MAY BE CONSIDERED AS INCIDENT TO A TRANSFER FROM LIMA TO NEW DELHI SO THAT THE ROUND-TRIP TRANSPORTATION OF THE DAUGHTER COMMENCED BEFORE HER 21ST BIRTHDAY MAY BE REIMBURSED TO THE EMPLOYEE. BUT SEE B- 167274, AUGUST 18, 1969.

TO MRS. MARGUERITE U. LYLES:

THIS REFERS TO THE CLAIM OF MR. ERNEST L. LANGBEIN FOR REIMBURSEMENT OF CERTAIN TRAVEL EXPENSES AND PER DIEM INCIDENT TO HIS TRAVEL IN 1967 FROM LIMA, PERU, TO NEW DELHI, INDIA, VIA SAN FRANCISCO AND WASHINGTON, D.C., AND IN 1968 FROM NEW DELHI TO SAN FRANCISCO.

MR. LANGBEIN'S CLAIM WAS THE SUBJECT OF OUR DECISION OF AUGUST 18, 1969, B-167274, ADDRESSED TO YOU. WE RULED THEREIN THAT MR. LANGBEIN'S TRAVEL ORDER OF AUGUST 11, 1967, MUST BE VIEWED AS A TRANSFER BACK TO SAN FRANCISCO FOR REEMPLOYMENT IN HIS OLD POSITION SINCE SUCH TRAVEL WAS COMPLETED BEFORE THE EMPLOYEE'S TRANSFER TO NEW DELHI HAD BEEN AUTHORIZED. IN LINE WITH THAT RULING WE HELD THAT THE TRAVEL OF MR. LANGBEIN'S OLDEST DAUGHTER, MARY ELLEN, FROM LIMA TO SAN FRANCISCO IN JULY 1967 WAS RELATED TO HIS TRANSFER ORDER OF AUGUST 11, 1967, AND, THEREFORE, COULD NOT BE REGARDED AS BEING INCIDENT TO A TRANSFER FROM LIMA TO NEW DELHI. ACCORDINGLY, WE DISALLOWED REIMBURSEMENT FOR THE DAUGHTER'S TRAVEL FROM SAN FRANCISCO TO NEW DELHI IN MAY 1968 AND FOR HER RETURN TRAVEL TO SAN FRANCISCO IN JULY 1968, SINCE THE TRAVEL TO NEW DELHI WAS COMMENCED AFTER HER 21ST BIRTHDAY. WE AFFIRMED THAT DECISION IN OUR LETTER OF JUNE 2, 1970, TO MR. LANGBEIN, A COPY OF WHICH HAS BEEN FURNISHED YOU.

BY LETTER DATED OCTOBER 6, 1970, MISS MARY E. RUDDY, CHIEF OF THE FISCAL SECTION, INTERNAL REVENUE SERVICE, FORWARDED HERE A COPY OF A MEMORANDUM SIGNED BY MR. JACK H. NEWMAN, ACTING DIRECTOR, FOREIGN TAX ASSISTANCE STAFF. MR. NEWMAN STATES THAT AT ALL TIMES IT WAS THE INTENT OF THE FOREIGN TAX ASSISTANCE STAFF TO TRANSFER MR. LANGBEIN FROM LIMA TO NEW DELHI AND THAT THE PROBABILITY OF RECEIVING MR. LANGBEIN'S CLEARANCE FROM THE INDIAN GOVERNMENT WAS VERY HIGH SINCE SUCH GOVERNMENT HAD APPROVED ALL PREVIOUS NOMINATIONS. IN ADDITION TO THAT MEMORANDUM MR. LANGBEIN HAS FURNISHED US A COPY OF A TELETYPE SENT FROM NEW DELHI TO WASHINGTON ON SEPTEMBER 30, 1967 (THE DAY AFTER MR. LANGBEIN DEPARTED LIMA), STATING THAT MR. LANGBEIN'S NOMINATION HAD BEEN APPROVED BY THE GOVERNMENT OF INDIA. (WE RECOGNIZE THAT SUCH TELETYPE DID NOT CONSTITUTE OFFICIAL NOTICE OF MR. LANGBEIN'S CLEARANCE.)

WE BELIEVE THAT THE ADDITIONAL EVIDENCE REASONABLY ESTABLISHES THAT MR. LANGBEIN'S TRANSFER TO NEW DELHI WAS SUFFICIENTLY CERTAIN AS OF THE TIME HE PERFORMED THE TRAVEL FROM LIMA TO SAN FRANCISCO SO THAT SUCH TRAVEL MAY NOW BE REGARDED AS HAVING BEEN INCIDENT TO A TRANSFER FROM LIMA TO NEW DELHI.

IN VIEW THEREOF MR. LANGBEIN MAY BE REIMBURSED FOR THE ROUND-TRIP TRAVEL OF HIS DAUGHTER, MARY ELLEN, BETWEEN SAN FRANCISCO AND NEW DELHI. IN THAT REGARD WE POINT OUT THAT THE DAUGHTER'S TRAVEL FROM LIMA TO SAN FRANCISCO, WHICH MAY BE REGARDED AS HAVING BEEN INCIDENT TO HER FATHER'S TRANSFER FROM PERU TO INDIA, WAS COMMENCED PRIOR TO HER 21ST BIRTHDAY AND HER TRAVEL TO NEW DELHI WAS COMPLETED WITHIN A YEAR. SEE 6 FAM 126.3 AND 132.2-3.

CONCERNING MR. LANGBEIN'S CLAIM FOR PER DIEM FOR THE PERIOD OF DELAY IN SAN FRANCISCO AND FOR THE PERIOD OF TEMPORARY DUTY IN WASHINGTON, NO PAYMENT OF PER DIEM MAY BE MADE IN THE ABSENCE OF APPROVAL THEREOF BY THE PROPER ADMINISTRATIVE OFFICIAL. SEE 6 FAM 126.4, 156.3, 156.6-1, 156.7.

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