B-178658, AUG 22, 1973

B-178658, AUG 22, 1973

DECISION THAT A TRAVEL VOUCHER SUBMITTED BY FREDERICK I. UNTIEDT, AN EMPLOYEE OF THE CIVIL AERONAUTICS BOARD, IN THE AMOUNT OF $567.74 FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED IN CONNECTION WITH A CHANGE OF STATION, MAY NOT BE CERTIFIED FOR PAYMENT SINCE CLAIMANT WAS RESIDING IN THE QUARTERS INCIDENT TO A PURCHASE AGREEMENT, WAS PAYING RENT ONLY UNTIL THE CLOSING DATE, AND CONSEQUENTLY WAS NOT OCCUPYING TEMPORARY QUARTERS.

TO MS. VERTANIA A. PRICE:

WE REFER TO YOUR LETTER OF MAY 10, 1973, REFERENCE B-18, REQUESTING OUR DECISION AS TO WHETHER A TRAVEL VOUCHER SUBMITTED BY MR. FREDERICK I. UNTIEDT, AN EMPLOYEE OF THE CIVIL AERONAUTICS BOARD, IN THE AMOUNT OF $567.74 FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED IN CONNECTION WITH A TRANSFER OF OFFICIAL STATION, MAY BE CERTIFIED FOR PAYMENT.

ACCORDING TO THE RECORDS PRESENTED MR. UNTIEDT WAS TRANSFERRED ON AN OFFICIAL CHANGE OF DUTY STATION FROM WASHINGTON, D.C., TO MIAMI, FLORIDA, EFFECTIVE NOVEMBER 14, 1972. HE HAD ENTERED INTO A CONTRACT TO PURCHASE A NEW RESIDENCE IN MIAMI ON OCTOBER 22, 1972, AND MOVED INTO THAT RESIDENCE UPON ARRIVAL IN MIAMI ON NOVEMBER 14, 1972, UNDER AN AGREEMENT TO PAY A RENTAL FEE OF $14 PER DAY UNTIL CLOSING AND TRANSFER OF TITLE. THE DATE OF THE CLOSING WAS DECEMBER 11, 1972.

MR. UNTIEDT'S ORIGINAL CLAIM FOR REIMBURSEMENT OF VARIOUS EXPENSES INCIDENT TO HIS TRANSFER INCLUDED A CLAIM FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS IN THE AMOUNT OF $567.74 BASED ON THE COSTS HE INCURRED WHILE OCCUPYING HIS NEW RESIDENCE FOR THE PERIOD NOVEMBER 14 THROUGH DECEMBER 10. THAT PART OF HIS ORIGINAL CLAIM WAS DISALLOWED ON THE BASIS OF OUR DECISION B-160904, DATED MARCH 7, 1967. THAT DECISION INVOLVED AN EMPLOYEE WHO MOVED WITH HIS FAMILY INTO THEIR NEW RESIDENCE THE DAY AFTER THEIR ARRIVAL AT THE NEW OFFICIAL STATION UNDER AN AGREEMENT TO PAY RENT UNTIL FINAL PURCHASE ARRANGEMENTS WERE CONSUMMATED. THE EMPLOYEE CLAIMED THE FIRST 30 DAYS RENTAL PAYMENT AS AN ALLOWANCE FOR TEMPORARY QUARTERS UNDER SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, SINCE FINAL SETTLEMENT WAS NOT HELD UNTIL ONE MONTH AFTER OCCUPANCY BEGAN. WE DENIED THE EMPLOYEE'S CLAIM ON THE GROUND THAT THE QUARTERS HE AND HIS FAMILY WERE OCCUPYING DURING THE SUBJECT PERIOD WAS THEIR PERMANENT RESIDENCE AND CONSEQUENTLY THE CLAIMED RENT COULD NOT BE CONSIDERED AS RENTAL OF TEMPORARY QUARTERS WITHIN THE MEANING OF SECTION 2.5 OF THE ABOVE CIRCULAR.

MR. UNTIEDT CONTENDS THAT THE FACTS IN HIS CASE MAY BE DISTINGUISHED FROM THOSE INVOLVED IN THE DECISION B-160904. IN SUPPORT OF THAT CONTENTION HE POINTS OUT, AMONG OTHER THINGS, THAT HE WAS TOLD THAT HE COULD NOT BE ASSIGNED TO MIAMI ON TEMPORARY DUTY BUT WOULD BE ELIGIBLE FOR REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES, THAT DURING THE PERIOD HE WAS PAYING RENT FOR HIS RESIDENCE IN MIAMI HE WAS ALSO RESPONSIBLE FOR MORTGAGE PAYMENTS ON HIS RESIDENCE AT HIS OLD DUTY STATION UNTIL ITS CLOSING DATE ON NOVEMBER 29, 1972, THAT HIS FAMILY DID NOT ARRIVE IN MIAMI UNTIL DECEMBER 2, 1972, THAT HIS HOUSEHOLD EFFECTS DID NOT ARRIVE UNTIL DECEMBER 8, 1972, AND THAT, HAD THE CONTRACT TO PURCHASE HIS NEW RESIDENCE FALLEN THROUGH FOR SOME REASON, HE WOULD HAVE HAD TO RELOCATE HIMSELF AND FAMILY AND THE QUARTERS WOULD HAVE BEEN TEMPORARY.

THE PROVISIONS OF 5 U.S.C. 5724AA)(3) UNDER WHICH THE ALLOWANCE IN QUESTION IS PAID WERE IMPLEMENTED BY OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED AUGUST 17, 1971, IN FORCE AT THE TIME IN QUESTION. SECTION 8.2C OF THAT CIRCULAR STATES:

"TEMPORARY QUARTERS REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED."

WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE TYPE OF RESIDENCE OCCUPIED, I.E., TEMPORARY OR PERMANENT, IS BASED ON THE INTENT OF THE EMPLOYEE AT THE TIME HE OR A MEMBER OF HIS FAMILY MOVES INTO THE QUARTERS WHICH LATER BECOMES HIS PERMANENT RESIDENCE. SEE B 177546, FEBRUARY 8, 1973; B-174971, FEBRUARY 28, 1972, COPIES ENCLOSED.

NOTWITHSTANDING THE SEVERAL FACTS THAT MR. UNTIEDT HAS SUBMITTED TO SUPPORT HIS CONTENTION THAT HIS MIAMI RESIDENCE SHOULD BE CONSIDERED TO HAVE BEEN TEMPORARY QUARTERS FOR THE PERIOD INVOLVED, IT IS CLEAR THAT WHEN HE MOVED INTO THE HOUSE ON NOVEMBER 14, 1972, HE HAD ENTERED INTO A CONTRACT TO PURCHASE THE HOUSE AND THAT IT WAS HIS INTENTION TO MAKE THE DWELLING THE PERMANENT RESIDENCE OF BOTH HE AND HIS FAMILY. SEE B 169962, JULY 2, 1970, COPY ENCLOSED.

CONCERNING THE FACTS WHICH MR. UNTIEDT CONSIDERS DISTINGUISH HIS CASE FROM THE CITED DECISION B-160904 WE POINT OUT THAT THE OWNERSHIP OF PERMANENT QUARTERS AT THE OLD DUTY STATION MAY NOT BE REGARDED AS ESTABLISHING THAT RENTAL QUARTERS AT THE NEW STATION ARE TEMPORARY.

SEE B-162510, OCTOBER 10, 1967, COPY ENCLOSED. IN ADDITION, THE PAYING OF RENT FOR A RESIDENCE, OR THE PRESENCE OR ABSENCE OF AN EMPLOYEE'S HOUSEHOLD GOODS IN A RESIDENCE, IS IMMATERIAL TO THE DETERMINATION OF WHETHER QUARTERS OCCUPIED ARE A TEMPORARY RESIDENCE. SEE B-177546, SUPRA; B-169923, AUGUST 14, 1970, COPY ENCLOSED.

ACCORDINGLY, UNDER THE RULES ESTABLISHED IN DECISIONS OF THIS OFFICE, WE FIND NO BASIS IN THE FACTS GIVEN BY MR. UNTIEDT TO DISTINGUISH HIS CASE FROM THOSE IN WHICH REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES WERE DISALLOWED AND THE VOUCHER RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.