B-178410, JUL 6, 1973

B-178410, JUL 6, 1973

DECISION WHETHER A VOUCHER SUBMITTED BY MR. CLAUDE H. THOMAS, IN THE AMOUNT OF $1,258.61, FOR RELOCATION EXPENSES, MAY BE CERTIFIED FOR PAYMENT. NOT AUTHORIZED FOR PAYMENT.

TO MR. ROBERT L. BAUSCH:

THIS IS IN REPLY TO YOUR LETTER DATED APRIL 6, 1973, REQUESTING OUR DECISION AS TO WHETHER A VOUCHER SUBMITTED BY MR. CLAUDE H. THOMAS, AN EMPLOYEE OF THE BUREAU OF SPORT FISHERIES AND WILDLIFE, IN THE AMOUNT OF $1,258.61 FOR RELOCATION EXPENSES, MAY BE CERTIFIED FOR PAYMENT.

THE PERTINENT FACTS SURROUNDING THIS REQUEST ARE SET FORTH IN YOUR ABOVE LETTER AS FOLLOWS:

MR. THOMAS WAS SELECTED FOR THE DEPARTMENTAL-BUREAU MANAGER TRAINING PROGRAM AUGUST 1971 TO JUNE 1972. PARTICIPANTS IN THESE PROGRAMS COMING TO WASHINGTON, D. C., ARE CARRIED IN A TEMPORARY DUTY STATUS AND PAID PER DIEM DURING THE ENTIRE PERIOD OF TRAINING. THEIR OFFICIAL STATIONS ARE NOT TRANSFERRED TO WASHINGTON, D. C., NOR ARE THEY PAID RELOCATION ALLOWANCES; HOWEVER, THEY ARE ENCOURAGED TO BRING THEIR FAMILIES WITH THEM AT THEIR OWN EXPENSE.

MR. THOMAS TRAVELED FROM HIS OFFICIAL STATION INDIAHOMA, OKLAHOMA, TO WASHINGTON, D. C., WITH HIS WIFE AND TWO CHILDREN DURING JULY 31 TO AUGUST 4, 1971, TO PARTICIPATE IN THE TRAINING PROGRAM. HE TRAVELED IN A RENTED TRUCK WHICH CARRIED HIS HOUSEHOLD GOODS, AND HIS WIFE DROVE THE FAMILY AUTOMOBILE WITH THE CHILDREN.

MR. THOMAS WAS PAID MILEAGE AT 8[ FOR THE TRIP PLUS PER DIEM AT $25. *** HE WAS PAID ADDITIONAL PER DIEM DURING THE TRAINING PERIOD AT $25 FOR THE FIRST TWO WEEKS AND $12.50 THEREAFTER. NO CLAIM WAS MADE AT THE TIME FOR THE FAMILY'S TRANSPORTATION, PER DIEM OR TRANSPORTATION OF HOUSEHOLD GOODS.

EARLY IN THE TRAINING PERIOD MR. THOMAS WAS INFORMED BY OFFICIALS OF THE DIVISION OF YOUTH CONSERVATION PROGRAMS THAT IT WAS LIKELY HE WOULD BE REASSIGNED TO WASHINGTON UPON CONCLUSION OF TRAINING AND NOT RETURNED TO INDIAHOMA. BECAUSE OF THIS POSSIBILITY, MR. THOMAS PURCHASED A HOUSE RATHER THAN RENT QUARTERS FOR THE REMAINDER OF THE TRAINING PERIOD.

EFFECTIVE JULY 2, 1972, MR. THOMAS WAS REASSIGNED AND HIS OFFICIAL STATION WAS TRANSFERRED TO WASHINGTON, D. C. THE PERSONNEL ACTION AUTHORIZED THE USUAL RELOCATION ALLOWANCES.

WE HAVE BEEN INFORMALLY ADVISED THAT MR. THOMAS' DUTY IN WASHINGTON WAS NOT TRAINING DUTY UNDER THE PROVISIONS OF 5 U.S.C. 4101-4118 ALTHOUGH THERE MAY HAVE BEEN SOME ASPECTS OF HIS WORK WHICH WERE CONSIDERED TRAINING IN THE BROADER SENSE OF THE WORD. THEREFORE, IN KEEPING WITH THE PROVISIONS OF THE TRAVEL AUTHORIZATIONS INVOLVED, MR. THOMAS' TRAVEL TO AND DUTY IN WASHINGTON IS VIEWED AS A TEMPORARY DUTY ASSIGNMENT.

MR. THOMAS HAS SUBMITTED A CLAIM OF $1,258.61, AS THE AMOUNT OF HIS RELOCATION EXPENSES INCIDENT TO HIS TRANSFER OF OFFICIAL DUTY STATION FROM INDIAHOMA, OKLAHOMA, TO WASHINGTON, D. C. THIS AMOUNT INCLUDES THE FOLLOWING:

TRAVEL OF WIFE AND CHILDREN $330.10

TRANSPORTATION OF HOUSEHOLD GOODS 317.24

MISCELLANEOUS EXPENSE ALLOWANCE 200.00

PURCHASE OF RESIDENCE 411.27

$1,258.61

ALL OF THE EXPENSES INVOLVED IN MR. THOMAS' RELOCATION WERE INCURRED PRIOR TO THE EFFECTIVE DATE OF HIS TRANSFER TO WASHINGTON, D. C. (JULY 2, 1972). WE HAVE HELD THAT REIMBURSEMENT OF MOVING EXPENSES INCURRED PRIOR TO AND IN ANTICIPATION OF A TRANSFER OF OFFICIAL DUTY STATION MAY BE ALLOWED IF THE TRAVEL ORDER SUBSEQUENTLY ISSUED INCLUDES AUTHORIZATION FOR THE EXPENSES ON THE BASIS OF A "PREVIOUSLY EXISTING ADMINISTRATIVE INTENTION, CLEARLY EVIDENT AT THE TIME THE EXPENSES WERE INCURRED BY THE EMPLOYEE, TO TRANSFER THE EMPLOYEE'S HEADQUARTERS." 48 COMP. GEN. 395, 396 (1968). WHAT CONSTITUTES A CLEAR INTENTION TO TRANSFER AN EMPLOYEE DEPENDS ON THE CIRCUMSTANCES IN EACH CASE.

WITH RESPECT TO MR. THOMAS' CLAIM FOR REIMBURSEMENT OF THE TRANSPORTATION EXPENSES OF HIS FAMILY AND HOUSEHOLD GOODS TO WASHINGTON, D. C., THERE IS NO EVIDENCE IN THE PRESENT RECORD OF AN EXISTING ADMINISTRATIVE INTENTION TO TRANSFER MR. THOMAS AT THE TIME THESE EXPENSES WERE INCURRED. THE FIRST INDICATION THAT THE BUREAU EVEN CONSIDERED THE TRANSFER OF MR. THOMAS TO WASHINGTON, D. C., WAS EARLY IN HIS TRAINING PERIOD, PRESUMABLY SOMETIME IN AUGUST 1971 WHEN HE WAS INFORMED DURING AN INFORMAL DISCUSSION OF HIS POSSIBLE REASSIGNMENT TO THE DIVISION OF YOUTH CONSERVATION AT THE CONCLUSION OF THE PERIOD OF DUTY IN WASHINGTON. THE TRANSPORTATION EXPENSES FOR WHICH REIMBURSEMENT IS CLAIMED, ON THE OTHER HAND, WERE INCURRED PRIOR TO THE COMMENCEMENT OF THE TRAINING PERIOD (JULY 31 TO AUGUST 4, 1971). IT THEREFORE APPEARS THAT THE SOLE PURPOSE OF MOVING HIS FAMILY AND HOUSEHOLD GOODS TO WASHINGTON IN JULY AND AUGUST OF 1971 WAS MR. THOMAS' DESIRE TO HAVE HIS FAMILY WITH HIM DURING HIS TEMPORARY ASSIGNMENT IN WASHINGTON. SINCE MR. THOMAS BROUGHT HIS FAMILY AND HOUSEHOLD GOODS TO WASHINGTON INCIDENT TO HIS TEMPORARY DUTY WITH NO ASSURANCE THAT HE WOULD LATER BE ASSIGNED TO PERMANENT DUTY THERE, HE IS NOT ENTITLED TO REIMBURSEMENT OF THE EXPENSE INVOLVED.

IN THAT CONNECTION WE NOTE THAT MR. THOMAS WAS PAID MILEAGE AT 8 CENTS ($124.08) AND PER DIEM AT $25 ($125) FOR HIS 5-DAY TRIP TO WASHINGTON, D. C. HE WAS ALSO PAID PER DIEM AT $25 FOR THE FIRST 2 WEEKS OF THE TRAINING PERIOD ($350) AND $12.50 THEREAFTER. THE FACT THAT MR. THOMAS' FAMILY RESIDED IN THE WASHINGTON AREA WITH HIM DURING HIS PERIOD OF TEMPORARY DUTY NO DOUBT DECREASED HIS EXPENSES INCIDENT TO THAT ASSIGNMENT SO AS TO REDUCE THE FINANCIAL BURDEN IMPOSED BY THE RELOCATION OF HIS FAMILY.

CONCERNING MR. THOMAS' CLAIM FOR THE MISCELLANEOUS EXPENSE ALLOWANCE AND FOR REAL ESTATE EXPENSES INCURRED IN THE PURCHASE OF HIS RESIDENCE, WE MUST CONCLUDE ON THE BASIS OF THE FACTS BEFORE US THAT SIGNIFICANTLY LESS THAN A CLEAR ADMINISTRATIVE INTENTION TO PERMANENTLY TRANSFER MR. THOMAS TO WASHINGTON, D. C., EXISTED AT THE TIME HE INCURRED EXPENSES FOR THE PURCHASE OF A RESIDENCE AND THE MISCELLANEOUS EXPENSES INCIDENT TO THE RELOCATION OF HIS FAMILY.

THE SETTLEMENT DATE OF THE PURCHASE WAS ON SEPTEMBER 27, 1971. THE ONLY INDICATION PRIOR TO THIS DATE THAT THE BUREAU MAY HAVE INTENDED TO PERMANENTLY TRANSFER MR. THOMAS TO WASHINGTON, D. C., OCCURRED DURING THE INFORMAL DISCUSSION REFERRED TO ABOVE. DURING THIS DISCUSSION MR. THOMAS WAS INFORMED OF HIS POSSIBLE REASSIGNMENT TO THE DIVISION OF YOUTH CONSERVATION PROGRAM AT THE CONCLUSION OF HIS TEMPORARY DUTY. MR. THOMAS STATES IN HIS LETTER OF DECEMBER 20, 1972, THAT IT WAS BECAUSE OF THIS POSSIBILITY THAT HE CHOSE TO PURCHASE A HOUSE RATHER THAN RENT.

A MERE ORAL STATEMENT CONCERNING A POSSIBLE REASSIGNMENT UPON THE CONCLUSION OF HIS TEMPORARY DUTY CERTAINLY CANNOT BE CONSIDERED A CLEAR AND DEFINITE ADMINISTRATIVE INTENTION TO TRANSFER MR. THOMAS TO WASHINGTON.

CONSEQUENTLY, THE EXPENSES CLAIMED BY MR. THOMAS INCIDENT TO THE PURCHASE OF A RESIDENCE MAY NOT BE DEEMED AS INCIDENT TO THE CHANGE OF HIS OFFICIAL STATION TO WASHINGTON, D. C., IN JULY OF 1972 AND AS SUCH ARE NOT REIMBURSABLE. FURTHER, THIS CASE MUST BE DISTINGUISHED FROM THE DECISION B-169555, JULY 2, 1970, WHICH IS CITED IN THE SUBMISSION, WITH RESPECT TO THE MISCELLANEOUS EXPENSE ALLOWANCE SINCE AT THE TIME MR. THOMAS WAS DEFINITELY ADVISED OF HIS TRANSFER TO WASHINGTON HE AND HIS FAMILY HAD ALREADY RELOCATED TO THE WASHINGTON AREA AND HAD TAKEN UP RESIDENCE IN THEIR OWN HOME. ACCORDINGLY, NONE OF THE EXPENSES COVERED BY THE MISCELLANEOUS EXPENSE ALLOWANCE WERE INCURRED AS A RESULT OF THE TRANSFER.

WE SHOULD ALSO MENTION THAT, AS YOU POINTED OUT IN YOUR LETTER OF APRIL 6, SEVERAL ITEMS OF THE CLAIMED REAL ESTATE EXPENSES ARE SPECIFICALLY DISALLOWABLE. THE REAL ESTATE EXPENSES ARE LISTED IN MR. THOMAS' SCHEDULE OF EXPENSES AS FOLLOWS:

LEGAL AND RELATED COSTS: $195.50

LENDER'S APPRAISAL FEE: 40.00

CREDIT REPORT: 10.00

ESCROW AGENT'S FEE: 165.77

THE LOAN STATEMENT DISCLOSES, HOWEVER, THAT THE "LEGAL AND RELATED COSTS" ITEM IS IN FACT A "MGIC PREMIUM AND REVIEW FEE." THIS TYPE OF COST (MORTGAGE GUARANTEE INSURANCE) HAS BEEN DETERMINED TO BE A FINANCE CHARGE UNDER THE TRUTH IN LENDING ACT AND THEREFORE NOT REIMBURSABLE UNDER SECTION 4.2D OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A 56. SEE B- 169477, JUNE 2, 1970, COPY ENCLOSED. THE STATEMENT ALSO REVEALS THAT THE "ESCROW AGENT'S FEE" IS IN FACT A PREPAYMENT OF TAX ESCROW WHICH IS NOT REIMBURSABLE AS PROVIDED IN SECTION 4.2D OF THE CIRCULAR.

IN VIEW OF THE ABOVE THE VOUCHER, WITH ATTACHMENTS, WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.