B-166238, MAR. 27, 1969

B-166238, MAR. 27, 1969

TO MR. JOHN L. SMITH:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1969, AD571X12, REGARDING THE CLAIM OF MRS. MARCIA L. MILLER, AN EMPLOYEE OF THE WEATHER BUREAU, WHO WAS AUTHORIZED TO TRAVEL FROM DENVER, COLORADO, TO KANSAS CITY, MISSOURI, FOR PERMANENT TRANSFER.

YOU SUBMITTED A VOUCHER DATED SEPTEMBER 3, 1968, AND REQUESTED OUR ADVANCE DECISION AS TO WHETHER SUCH VOUCHER MAY PROPERLY BE CERTIFIED FOR PAYMENT UNDER SECTIONS 23 (3) AND (4) OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS ADDED BY THE ACT OF JULY 21, 1966, PUB. L. 89 516,80 STAT. 323, NOW CODIFIED AS 5 U.S.C. 5724A, AND SECTIONS 2.5 AND 4, BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966, BASED UPON THE FOLLOWING FACTS.

THE DOCUMENTS SUBMITTED IN SUPPORT OF THIS CLAIM DISCLOSE THAT MRS. MILLER AND HER HUSBAND, RICHARD E. MILLER, WERE CO-PURCHASERS OF A RESIDENCE IN LAKEWOOD, COLORADO, UNDER A CONTRACT DATED DECEMBER 1, 1964. THE INFORMATION PRESENTED ALSO SHOWS THAT THE LEGAL TITLE TO THE PROPERTY WAS TO BE HELD BY THE SELLERS UNTIL THE SELLER'S EQUITY IN THE PROPERTY -- THE DIFFERENCE BETWEEN SELLING PRICE AND FIRST MORTGAGE NOTE -- IS LIQUIDATED IN ACCORDANCE WITH THE AGREEMENT, AT WHICH TIME THE SELLERS WERE TO CONVEY LEGAL TITLE BY A GENERAL WARRANTY DEED -- SUBJECT OF COURSE TO THE EXISTING FIRST MORTGAGE. WE UNDERSTAND ALSO THAT WHEN THE CLAIMANT AND HER HUSBAND THEREAFTER SOLD THE PREMISES, ON ACCOUNT OF WHICH SALE SHE CLAIMS REIMBURSEMENT FOR THE BROKER'S COMMISSION, THE EQUITY OF THE SELLERS UNDER THE CONTRACT DATED DECEMBER 1, 1964, WAS PAID IN FULL; THE PURCHASERS TO WHOM THE CLAIMANT AND HER HUSBAND SOLD THE PREMISES ASSUMED THE FIRST MORTGAGE; AND THE CLAIMANT AND HER HUSBAND CONVEYED THEIR INTEREST IN THE PREMISES TO SUCH PURCHASERS.

UPON ARRIVING AT KANSAS CITY, MISSOURI, MRS. MILLER AND HER FAMILY OCCUPIED TEMPORARY QUARTERS IN HER PARENT'S HOME FOR WHICH A PAYMENT WAS MADE. THE EMPLOYEE ALSO STATES THAT SHE WAS ADVISED BY THE VOUCHER OFFICE IN DENVER, COLORADO, THAT SHE WAS NOT REQUIRED TO KEEP RECEIPTS FOR EXPENDITURES FOR GROCERIES AND MEALS DURING THE TIME OF HER TRANSFER.

THE TWO QUESTIONS WHICH YOU RAISE IN YOUR REQUEST FOR AN ADVANCE DECISION FROM THIS OFFICE ARE WHETHER IT IS PROPER TO CERTIFY THE SUBSISTENCE EXPENSE INCURRED BY THE EMPLOYEE WHILE OCCUPYING TEMPORARY QUARTERS AT HER PARENT'S HOME IN KANSAS CITY, MISSOURI, AND WHETHER THE REALTOR'S COMMISSION FOR THE SALE OF THE EMPLOYEE'S REAL ESTATE PROPERTY IN LAKEWOOD, COLORADO, IS REIMBURSABLE UNDER THE FACTS PRESENTED IN YOUR LETTER AND BY THE SUPPORTING DOCUMENTS.

INSOFAR AS CERTIFYING THE SUBSISTENCE EXPENSE IS CONCERNED, OWNERSHIP OF THE TEMPORARY QUARTERS BY A RELATIVE OF THE EMPLOYEE IS NOT A BAR TO ENTITLEMENT SO LONG AS THE EXPENSE CLAIMED WAS ACTUALLY INCURRED AND WAS SUPPORTED BY A RECEIPT FOR PAYMENT. SEE B-161796, SEPTEMBER 1, 1967, AND B-164557, JULY 16, 1968. THE RECEIPT FOR $310, DATED AUGUST 17, 1968, IS SUFFICIENT TO SATISFY THIS REQUIREMENT. HOWEVER, THE AMOUNT PAYABLE ON ACCOUNT OF LODGING FOR EACH OF THE 30 DAYS SHOULD BE DETERMINED BY DIVIDING THE TOTAL AMOUNT EXPENDED ($310) BY 30 RESULTING IN A DAILY RATE OF $10.33. UPON SUCH BASIS THE AMOUNT PAYABLE FOR THE FIRST 10 DAYS WOULD BE $343.30 RATHER THAN $390; THE SECOND 10 DAYS $292 RATHER THAN $280 AND FOR THE THIRD 10-DAY PERIOD THE AMOUNT WOULD BE THE SAME -- $220. THUS, THE TOTAL AMOUNT CLAIMED ON THE VOUCHER FOR TEMPORARY QUARTERS AND SUBSISTENCE SHOULD BE $855.30 RATHER THAN $890.

WITH RESPECT TO THAT PORTION OF THE SUBSISTENCE EXPENSE WHICH COVERS MEALS AND GROCERIES, SUBSECTION 2.5D, BUREAU OF THE BUDGET CIRCULAR NO. A- 56, PROVIDES THAT:

"/1) REIMBURSEMENT SHALL BE ONLY FOR ACTUAL SUBSISTENCE EXPENSES INCURRED PROVIDED THESE ARE DIRECTLY RELATED TO OCCUPANCY OF TEMPORARY QUARTERS AND ARE REASONABLE BOTH AS TO AMOUNT AND DURATION. ALLOWABLE SUBSISTENCE EXPENSES INCLUDE ONLY CHARGES FOR MEALS, LODGING, FEES AND TIPS INCIDENT TO MEALS AND LODGING, LAUNDRY, CLEANING AND PRESSING OF CLOTHING. THE ACTUAL EXPENSES SHALL BE SUPPORTED AS PROVIDED IN SUBSECTION 6.12F OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. * * * "

SUBSECTION 6.12F OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, REVISED, MARCH 1, 1965, PROVIDES IN PERTINENT PART THAT:

"ACTUAL AND NECESSARY SUBSISTENCE EXPENSES INCURRED ON A TRAVEL ASSIGNMENT FOR WHICH REIMBURSEMENT IS CLAIMED BY A TRAVELER WILL BE ITEMIZED * * * WHICH WILL PERMIT AT LEAST A REVIEW OF THE AMOUNTS SPENT DAILY FOR (1) LODGING, (2) MEALS, AND (3) ALL OTHER ITEMS OF SUBSISTENCE EXPENSES. RECEIPTS WILL BE REQUIRED AT LEAST FOR LODGING.' WHILE THE AVERAGING OUT OF MEAL COSTS IN SUPPORT OF THE SUBSISTENCE EXPENSES CLAIMED IS NOT A LITERAL COMPLIANCE WITH THE ITEMIZATION REQUIREMENT CONTAINED IN SUBSECTION 6.12F ABOVE (SEE B 161796 AND B-164557, IBID.), IT DOES APPEAR THAT SUCH AVERAGE AMOUNTS WERE BASED UPON ACTUAL EXPENDITURES FOR FOOD. IN VIEW THEREOF AND SINCE THE AMOUNTS INVOLVED APPEAR TO BE REASONABLE THEY PROPERLY MAY BE CERTIFIED FOR PAYMENT.

WITH RESPECT TO THE REALTOR'S COMMISSION, THE EVIDENCE SUBMITTED SHOWS THAT RETENTION BY THE SELLER OF THE LEGAL TITLE TO THE PROPERTY SOLD THE CLAIMANT WAS A DEVICE USED -- IN LIEU OF A MORTGAGE OR DEED OF TRUST -- FOR THE SOLE PURPOSE OF GUARANTEEING PAYMENT TO SELLER OF THE BALANCE DUE AND THAT THE CLAIMANT HAD AN EQUITABLE INTEREST IN SUCH PROPERTY WHICH COULD HAVE BEEN REGISTERED UNDER THE COLORADO STATUTES. SEE COL. REV. STAT. 1963, VOL. 6, CH. 118, SEC. 10-1 WHICH PROVIDES FOR THE REGISTRATION OF EQUITABLE INTERESTS IN LAND. MOREOVER, THE PROPERTY WAS USED AS A RESIDENCE BY THE EMPLOYEE AND HER FAMILY FOR A SUBSTANTIAL PERIOD OF TIME. THUS, THE FACT THAT THE EMPLOYEE WAS LISTED AS "SELLER UNDER CONTRACT" IN THE STATEMENT OF SETTLEMENT DATED JULY 15, 1968, IS IMMATERIAL WHEN ALL THE OTHER ATTRIBUTES OF OWNERSHIP ARE PRESENT AND WOULD NOT PRECLUDE HER RECEIVING REIMBURSEMENT FOR THE BROKERAGE FEE IN QUESTION.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH SHOULD BE MODIFIED IN THE MANNER INDICATED AND THEN MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.