B-160898, MARCH 10, 1967, 46 COMP. GEN. 703

B-160898, MARCH 10, 1967, 46 COMP. GEN. 703

OFFICERS AND EMPLOYEES - TRANSFERS - RELOCATION EXPENSES - HOUSE SALE - ACTUAL RESIDENCE AT TIME OF OFFICIAL TRANSFER REQUIREMENT AN EMPLOYEE WHO REPORTS TO WASHINGTON, D.C., DESIGNATED HIS OFFICIAL HEADQUARTERS, FOR A 14-WEEK PERIOD OF TRAINING AND CONTINUES TO MAINTAIN HIS FAMILY AT THE PLACE FROM WHICH HE WAS APPOINTED UNTIL HE IS TRANSFERRED TO A DUTY STATION IS NOT ENTITLED TO REIMBURSEMENT UNDER PUBLIC LAW 89-516 FOR THE EXPENSES RELATING TO THE SALE OF HIS HOUSE, NOTWITHSTANDING HIS FAMILY CONTINUED TO RESIDE IN THE DWELLING. THE HOME NOT LOCATED AT THE EMPLOYEE'S OLD DUTY STATION, WASHINGTON, D.C., BUT AT THE PLACE OF HIS RESIDENCE AT THE TIME OF APPOINTMENT, THE "ACTUAL RESIDENCE AT THE TIME OF HIS OFFICIAL TRANSFER" REQUIREMENT OF SECTION 4.1 OF THE BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, HAS NOT BEEN MET AND THE EMPLOYEE MAY NOT BE REIMBURSED THE EXPENSES INCURRED IN SELLING HIS DWELLING.

TO MAURICE F. ROW, UNITED STATES DEPARTMENT OF JUSTICE, MARCH 10, 1967:

YOUR LETTER OF FEBRUARY 16, 1967, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF FRANK P. MULCAHEY FOR $1,456.33, REPRESENTING EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE INCIDENT TO A PERMANENT CHANGE OF STATION.

YOU SAY THAT MR. MULCAHEY WAS APPOINTED TO THE POSITION OF SPECIAL AGENT WITH THE FEDERAL BUREAU OF INVESTIGATION ON JUNE 27, 1966. IN ACCORDANCE WITH AGENCY PRACTICE HE REPORTED TO WASHINGTON, D.C. FOR A 14-WEEK PERIOD OF EXTENSIVE TRAINING. DURING THIS PERIOD, WASHINGTON, D.C. WAS DESIGNATED AS MR. MULCAHEY'S OFFICIAL HEADQUARTERS.

WHILE STATIONED IN WASHINGTON, MR. MULCAHEY MAINTAINED A HOME IN ST. JOSEPH, MICHIGAN, IN WHICH MEMBERS OF HIS FAMILY RESIDED UNTIL THE EMPLOYEE'S OFFICIAL TRANSFER TO OKLAHOMA CITY, OKLAHOMA, ON OCTOBER 8, 1966. MR. MULCAHEY SOLD HIS HOME ON OCTOBER 5, 1966.

IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC LAW 89-516, APPROVED JULY 21, 1966, MR. MULCAHEY EXECUTED A WRITTEN AGREEMENT TO REMAIN IN THE GOVERNMENT SERVICE FOR 1 YEAR FOLLOWING HIS TRANSFER TO OKLAHOMA CITY. MR. MULCAHEY NOW REQUESTS REIMBURSEMENT OF CERTAIN EXPENSES RELATED TO THE SALE OF HIS HOUSE UNDER THE PROVISIONS OF SECTION 23 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY SECTION 2 OF PUBLIC LAW 89-516, 5 U.S.C. 5724A. SECTION 23 PROVIDES, IN PART, AS FOLLOWS:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT DEEMED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO THE DEPARTMENTS FOR ADMINISTRATIVE EXPENSES SHALL BE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF OFFICERS OR EMPLOYEES FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SUBSECTION (A) OF SECTION 1 OF THIS ACT:

(4) THE EXPENSES OF THE SALE OF THE RESIDENCE (OR THE SETTLEMENT OF AN UNEXPIRED LEASE) OF THE OFFICER OR EMPLOYEE AT THE OLD OFFICIAL STATION AND PURCHASE OF A HOME AT THE NEW OFFICIAL STATION REQUIRED TO BE PAID BY HIM WHEN THE OLD AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE UNITED STATES (INCLUDING THE DISTRICT OF COLUMBIA), ITS TERRITORIES AND POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, AND THE CANAL ZONE, BUT REIMBURSEMENT FOR BROKERAGE FEES ON THE SALE OF THE RESIDENCE AND OTHER EXPENSES UNDER THIS SUBSECTION SHALL NOT EXCEED THOSE CUSTOMARILY CHARGED IN THE LOCALITY WHERE THE RESIDENCE IS LOCATED AND NO REIMBURSEMENT SHALL BE MADE FOR LOSSES ON THE SALE OF THE RESIDENCE. THIS PROVISION APPLIES REGARDLESS OF WHETHER THE TITLE TO THE RESIDENCE OR THE UNEXPIRED LEASE IS IN THE NAME OF THE OFFICER OR EMPLOYEE ALONE, IN THE JOINT NAMES OF THE OFFICER OR EMPLOYEE AND A MEMBER OF HIS IMMEDIATE FAMILY, OR IN THE NAME OF A MEMBER OF HIS IMMEDIATE FAMILY ALONE.

RESPONSIBILITY FOR ISSUING THE REGULATIONS AUTHORIZED BY SECTION 23, ABOVE, WAS DELEGATED TO THE BUREAU OF THE BUDGET BY EXECUTIVE ORDER NO. 11290, DATED JULY 21, 1966. THE STATUTORY REGULATIONS, WHICH WERE EFFECTIVE JULY 21, 1966, ARE NOW CONTAINED IN BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966. WITH RESPECT TO REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH REAL ESTATE TRANSACTIONS, SECTION 4.1 OF THE REGULATIONS PROVIDES IN PERTINENT PART AS FOLLOWS:

TO THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT WILL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION; PURCHASE OF ONE DWELLING AT HIS NEW OFFICIAL STATION; OR THE SETTLEMENT OF AN UNEXPIRED LEASE AT HIS PLACE OF RESIDENCE AT THE OLD OFFICIAL STATION; PROVIDED THAT:

C. THE DWELLING AT THE OLD OFFICIAL STATION WAS THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED THAT HE IS TO BE TRANSFERRED TO THE NEW OFFICIAL STATION.

YOU POINT OUT THAT THE LANGUAGE UNDERSCORED ABOVE "APPEARS TO LIMIT THE EMPLOYEE'S CLAIM TO EXPENSES INCURRED IN CONNECTION WITH THE SALE OF A DWELLING AT A PREVIOUS OFFICIAL DUTY STATION AND WHICH WAS THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME HE WAS NOTIFIED OF AN OFFICIAL NSFER.' HOWEVER, YOU QUESTION "WHETHER THE INTENT OF THE LAW WAS TO PRECLUDE SUCH CLAIMS FROM BEING ALLOWED WHERE THE EMPLOYEE WAS MAINTAINING HIS HOUSEHOLD IN A DWELLING LOCATED AT A PLACE OTHER THAN HIS PREVIOUS OFFICIAL DUTY STATION.'

THE LANGUAGE OF THE ABOVE-QUOTED REGULATION IS CLEAR AND UNAMBIGUOUS. REIMBURSEMENT UNDER SECTION 4 OF THE REGULATIONS IS AUTHORIZED ONLY IN CONNECTION WITH THE SALE OF A DWELLING AT THE OLD OFFICIAL DUTY STATION WHICH DWELLING WAS THE EMPLOYEE'S ACTUAL RESIDENCE AT THE TIME OF HIS OFFICIAL TRANSFER. IN THE PRESENT CASE THE DWELLING WHICH MR. MULCAHEY SOLD ON OCTOBER 5, 1966, WAS NOT LOCATED AT HIS OLD OFFICIAL DUTY STATION (WASHINGTON, D.C./--- THE LOCATION OF THE RESIDENCE IN QUESTION BEING AT ST. JOSEPH, MICHIGAN, THE EMPLOYEE'S PLACE OF RESIDENCE AT THE TIME OF APPOINTMENT--- AND WAS NOT HIS ACTUAL RESIDENCE AT THE TIME HE RECEIVED NOTICE OF TRANSFER TO OKLAHOMA CITY. IN THE CIRCUMSTANCES, THE FACT THAT MR. MULCAHEY'S FAMILY RESIDED IN THE DWELLING IN ST. JOSEPH, MICHIGAN, IS IRRELEVANT.

TO EXTEND APPLICATION OF SECTION 4 OF THE REGULATIONS TO THE FACTS OF THIS CASE WOULD, IN OUR OPINION, CONTRAVENE THE INTENT OF THE STATUTE AND REGULATIONS ISSUED PURSUANT THERETO. WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-516 TO ALTER OUR OPINION AS EXPRESSED ABOVE.

THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.