B-202243, JUL 6, 1983

B-202243, JUL 6, 1983

DIGEST: 1. AN EMPLOYEE ITEMIZED HIGH MEAL COSTS ON CERTAIN DAYS IN TEMPORARY QUARTERS BECAUSE HE "STOCKED A BARE CUPBOARD" WITH "PAPER PLATES, CUPS, TOWELS, DISPOSABLE EATING UTENSILS, SOAPS, SPICES," THAT WERE USED DURING THE 30 DAYS OF TEMPORARY QUARTERS. THE AMOUNTS FOR SUCH ITEMS WERE EXCESSIVE TO THE EXTENT THEY INORDINATELY RAISED AVERAGE DAILY MEAL COSTS TO $34.50 FOR ONE PERSON DURING THE 1ST 10-DAY PERIOD OF TEMPORARY QUARTERS AND $25.67 DURING THE ENTIRE 30-DAY PERIOD WITH HIS THREE DEPENDENTS JOINING HIM THE FINAL 3 DAYS. THE EMPLOYEE MAY BE REIMBURSED ONLY FOR REASONABLE MEAL COSTS ACTUALLY SPENT (FTR PARA. 2-5.4A). 2. REIMBURSABLE TEMPORARY QUARTERS SUBSISTENCE EXPENSES ARE ACTUAL EXPENSES SHOWN TO BE REASONABLE OR A MAXIMUM AMOUNT SPECIFIED, WHICHEVER IS LESS (FTR PARA. 2-5.4C). CONSEQUENTLY, WHERE THE AGENCY CONSIDERS THAT REASONABLE MEAL COSTS FOR THE FIRST 10-DAY PERIOD WERE LESS THAN CLAIMED AND THEIR ALLOWANCE OF REASONABLE AMOUNTS RESULTS IN A LOWER SUBSISTENCE EXPENSE THAN THE MAXIMUM AMOUNT SPECIFIED THE EMPLOYEE MAY NOT BE REIMBURSED AT THE MAXIMUM RATE EVEN THOUGH THIS IS LESS THAN HIS ITEMIZED EXPENSES SINCE THE AGENCY CONSIDERS ITEMIZED EXPENSES TO BE UNREASONABLE. 3. AN EMPLOYEE MAY NOT BE REIMBURSED THE MESSENGER SERVICE AND TAX CERTIFICATE FEES PAID IF THOSE FEES WERE PAID TO THE LENDER IN CONNECTION WITH THE SALE OF THE EMPLOYEE'S HOME AT HIS OLD DUTY STATION. WHEN THE FACTS AND DOCUMENTATION PRESENTED WITH A CLAIM ARE INSUFFICIENT TO ESTABLISH THE EXACT NATURE OF THESE FEES, IN THE ABSENCE OF MORE SPECIFIC INFORMATION, THE AMOUNTS MAY NOT BE REIMBURSED.

PATRICK T. SCHLUCK:

MR. PATRICK T. SCHLUCK, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, HAS NOT SUPPORTED AS REASONABLE HIS CLAIM FOR MEAL COSTS INCLUDED IN HIS TEMPORARY QUARTERS SUBSISTENCE EXPENSE REIMBURSEMENT CLAIM. ON THE RECORD PRESENTED HE MAY NOT BE REIMBURSED MESSENGER SERVICE AND TAX CERTIFICATE FEES INCURRED IN SELLING HIS RESIDENCE AT HIS OLD DUTY STATION SINCE THE EVIDENCE PRESENTED DOES NOT SHOW THAT THESE ARE ALLOWABLE COSTS.

MEAL COSTS

THE EMPLOYING OFFICE AUTHORIZED MR. SCHLUCK TEMPORARY QUARTERS SUBSISTENCE EXPENSES INCIDENT TO THE TRANSFER OF HIS PERMANENT DUTY STATION FROM HOUSTON, TEXAS, TO LOUISVILLE, KENTUCKY, EFFECTIVE JANUARY 25, 1982. HE LEASED AN APARTMENT IN LOUISVILLE FOR USE AS TEMPORARY QUARTERS BETWEEN JANUARY 22 AND FEBRUARY 22, 1982. THE CERTIFYING OFFICER IN THE ADMINISTRATIVE REPORT TO US NOTED THAT MEAL COSTS, WHICH MR. SCHLUCK HAD ITEMIZED FOR THE FIRST 10-DAY PERIOD OF TEMPORARY QUARTERS, WERE EXCESSIVE ON CERTAIN DAYS - $65.53, $57.17, $90.87, AND $79.61 ON VARIOUS DAYS. THE CERTIFYING OFFICER ALLOWED $17 PER DAY DURING THAT 10- DAY PERIOD. THE CERTIFYING OFFICER FOUND THE SAME TRUE FOR THE SECOND 10- DAY PERIOD, BUT THERE WAS NO REDUCTION IN MR. SCHLUCK'S CLAIM FOR THAT PERIOD BECAUSE THE MAXIMUM ALLOWABLE, AS CLAIMED, WAS LESS THAN THE ALLOWABLE AMOUNT AS RECALCULATED BY THE CERTIFYING OFFICER.

TEMPORARY QUARTERS SUBSISTENCE EXPENSES MAY NOT EXCEED, IN EACH 10-DAY PERIOD, ACTUAL EXPENSES FOR LODGING, MEALS, AND MISCELLANEOUS EXPENSES OR A PRESCRIBED PERCENTAGE OF THE MAXIMUM PER DIEM RATE ($50 AT THE TIME IN QUESTION), WHICHEVER IS LESS. SEE PARAGRAPH 2-5.4C, FEDERAL TRAVEL REGULATIONS, FPMR 101-7 (SEPTEMBER 1981) (FTR); MATTER OF YANAK, B-204185, APRIL 27, 1982. BECAUSE OF HIS HIGH MEAL (GROCERY) COSTS, MR. SCHLUCK'S ACTUAL ITEMIZED EXPENSES EXCEEDED THE $375 MAXIMUM PRESCRIBED FOR THE FIRST 10-DAY PERIOD. HE LIMITED HIS CLAIM TO THESE AMOUNTS DESPITE HIS ITEMIZED EXPENSES OF $442.81 FOR THAT PERIOD.

THE EMPLOYING OFFICE REDUCED MR. SCHLUCK'S TEMPORARY QUARTERS SUBSISTENCE EXPENSES FOR THE FIRST 10-DAY PERIOD ON THE GROUND THAT THE ITEMIZED MEAL COSTS WERE UNREASONABLE. ITS REDUCTION TO $17 PER DAY FOR MEALS DIMINISHED ALLOWABLE ACTUAL EXPENSES TO A LEVEL WHICH WAS $107.20 LESS THAN THE MAXIMUM REIMBURSABLE OF $375 AS CLAIMED. TOTAL SUBSISTENCE EXPENSES ALLOWED FOR THAT 10-DAY PERIOD WAS $267.80. MR. SCHLUCK ARGUES THAT THE MEAL COSTS HE ITEMIZED WERE REASONABLE. HE EXPLAINED THAT HE HAD ONLY FURNITURE IN THE APARTMENT AND THAT HE "STOCKED A BARE CUPBOARD" DURING THE INITIAL 10-DAY PERIOD. HE SAYS HE PURCHASED "PAPER PLATES, CUPS, TOWELS, DISPOSABLE EATING UTENSILS, SOAPS, SPICES" AND ADDS "ITEMS PURCHASED WERE CONSUMED DURING THE VOUCHER PERIOD."

THE REIMBURSEMENT TO EMPLOYEES OF THE EXPENSES OF SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS IS GOVERNED BY THE PROVISIONS OF CHAPTER 2, PART 5 OF THE FTR. THESE REGULATIONS AUTHORIZE REIMBURSEMENT ONLY FOR THE ACTUAL SUBSISTENCE EXPENSES INCURRED PROVIDED THEY ARE INCIDENT TO THE OCCUPANCY OF TEMPORARY QUARTERS AND ARE REASONABLE AS TO AMOUNT. FTR PARA. 2-5.4A. IT IS THE RESPONSIBILITY OF THE EMPLOYING AGENCY, IN THE FIRST INSTANCE, TO DETERMINE THAT SUCH EXPENSES ARE REASONABLE IN LIGHT OF THE CIRCUMSTANCES OF EACH INDIVIDUAL CASE. JESSE A. BURKS, 55 COMP.GEN. 1107, 1110 (1976). WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF EVIDENCE THAT THE AGENCY'S ACTION WAS CLEARLY ERRONEOUS, ARBITRARY OR CAPRICIOUS.

IN MR. SCHLUCK'S CASE THE ITEMIZED MEAL COSTS OF ONE PERSON AVERAGING $34.50 FOR THE FIRST 10 DAYS AND $25.67 FOR THE ENTIRE 30-DAY PERIOD WERE EXCESSIVE. THE COST OF GROCERIES PURCHASED IN LARGE LOTS AND CONSUMED DURING A PERIOD OF TIME SHOULD BE PRORATED OVER THE DAYS THEY ARE USED IN TEMPORARY QUARTERS. MATTER OF TIGNOR, B-190583, FEBRUARY 10, 1978; AND B-165553, NOVEMBER 25, 1968. NONETHELESS, THE HIGH AVERAGE DAILY COST IS NOT FULLY JUSTIFIED BY THE CLAIMANT'S EXPLANATIONS THAT HE PURCHASED SPICES, PAPER PLATES, AND DISPOSABLE EATING UTENSILS AND THAT HE STOCKED A BARE CUPBOARD. NOR IS THAT HIGH COST EXPLAINED BY THE FACT THAT HIS DEPENDENTS JOINED HIM FOR THE LAST 3 DAYS OF THE 30-DAY PERIOD.

THE EMPLOYING AGENCY IS CONVINCED THAT REASONABLE MEAL COSTS SHOULD RESULT IN LOWER SUBSISTENCE THAN THE PRESCRIBED MAXIMUM REIMBURSEMENT AND WE DO NOT FIND THAT VIEW TO BE UNREASONABLE SINCE THE CLAIMANT'S EXPENSES CONSIST MAINLY OF GROCERIES FOR CONSUMPTION AT HIS TEMPORARY QUARTERS.

SINCE THE AGENCY'S DETERMINATION THAT MR. SCHLUCK'S ITEMIZED DAILY MEAL COSTS EXCEEDED A REASONABLE AMOUNT AND THAT HE DID NOT GIVE AN ADEQUATE EXPLANATION OF WHY THOSE HIGH COSTS WERE NOT UNREASONABLE, THE REDUCTION IN REIMBURSEMENT FOR TEMPORARY QUARTERS SUBSISTENCE EXPENSES WILL NOT BE QUESTIONED.

REAL ESTATE EXPENSES

ALTHOUGH WE HAVE NOT BEEN FURNISHED COPIES OF SETTLEMENT DOCUMENTS WE WERE ADVISED THAT MR. SCHLUCK SOLD HIS HOME IN HOUSTON ON FEBRUARY 9, 1982, AND THAT INCLUDED IN THE SETTLEMENT COSTS WERE THE FEES FOR MESSENGER SERVICES OF $15 AND A TAX CERTIFICATION OF $30. BY LETTER OF JULY 23, 1982, TO MR. AND MRS. SCHLUCK, THE USLIFE TITLE COMPANY OF HOUSTON, HAVING RESPONSIBILITY FOR THE CLOSING STATEMENT, EXPLAINED "THE TAX CERTIFICATE CHARGE IS FOR US TO OBTAIN TAX CERTIFICATES FROM ALL THE AUTHORITIES AND THE MESSENGER SERVICE IS SPLIT BETWEEN BUYER AND SELLER FOR ALL NECESSARY RUNNING TO THE COURT HOUSE, MORTGAGE COMPANY, ATTORNEY'S OFFICE AND TAXING AUTHORITIES."

REIMBURSEMENT OF REAL ESTATE EXPENSES IS GOVERNED BY PART 6, CHAPTER 2 OF THE FTR. SUBPARAGRAPH 2-6.2C ALLOWS REIMBURSEMENT OF LEGAL AND RELATED COSTS NECESSARY FOR THE TRANSFER OF OWNERSHIP IN THE RESIDENCE. EXAMPLES ARE THE EXPENSES FOR SEARCHING TITLE; PREPARING AN ABSTRACT; OBTAINING AN ATTORNEY'S TITLE OPINION; BUYING A TITLE INSURANCE POLICY WHERE CUSTOMARILY FURNISHED BY THE SELLER; PREPARING CONVEYANCES, OTHER INSTRUMENTS AND CONTRACTS, AS WELL AS RELATED NOTARY AND RECORDING FEES; MAKING SURVEYS; AND PREPARING DRAWINGS OR PLATS REQUIRED FOR LEGAL OR FINANCING PURPOSES. IN ADDITION TO THESE EXPRESS COSTS, SUBPARAGRAPH 2- 6.2C AUTHORIZES "SIMILAR EXPENSES" NEEDED TO CONVEY THE PROPERTY. ALSO, TO BE REIMBURSABLE, THE COST MUST BE A CUSTOMARY EXPENSE OF SELLERS (IF THE EMPLOYEE IS SELLING A HOME) OR PURCHASERS (IF THE EMPLOYEE IS BUYING A HOME) IN THE AREA OF THE OLD OR NEW DUTY STATION WHERE THE PROPERTY IS LOCATED AND REIMBURSEMENT MAY NOT EXCEED AMOUNTS CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE.

WHILE THE EVIDENCE PROVIDED IN THIS CASE IS NOT SUFFICIENT TO PERMIT US TO DETERMINE WHETHER THE TWO AMOUNTS IN QUESTION ARE REIMBURSABLE, WE HAVE HELD THAT TAX CERTIFICATE FEES PAID TO THE MORTGAGE LENDER ARE NONREIMBURSABLE FINANCE CHARGES AS DEFINED IN REGULATION Z. SEE 49 COMP.GEN. 483 (1970), AT PAGE 486. MATTER OF HOLT, B-189295, AUGUST 16, 1977; AND MATTER OF WAHL, B-180981, OCTOBER 1, 1974.

A MESSENGER SERVICE CHARGE PAID TO THE MORTGAGE LENDER WOULD APPEAR TO BE FOR DISALLOWANCE ALSO BECAUSE IT WOULD BE CONSIDERED A PART OF THE LENDER'S OVERHEAD WHICH IS CONSIDERED PART OF THE FINANCE CHARGE UNDER REGULATION Z. 26 C.F.R. SEC. 226.4.

IF THE ANALYSIS AND DECISIONS DISCUSSED DO NOT RESOLVE THE ISSUES PRESENTED, THE MATTER MAY BE REFERRED TO US FOR FURTHER CONSIDERATION. THAT CASE, HOWEVER, A FULL ANALYSIS OF THE PROBLEM TOGETHER WITH ALL PERTINENT DOCUMENTS INCLUDING PRIOR VOUCHERS AND EVIDENCE SHOULD BE FURNISHED.