B-167178, JUL. 30, 1969

B-167178, JUL. 30, 1969

CIVIL PAY - RELOCATION EXPENSES - SALE OF HOME AT OTHER THAN OLD STATION EMPLOYEE WHO MAINTAINED HIS FAMILY AT HIS OLD RESIDENCE (BETHESDA, MARYLAND) UPON TRANSFER TO FEDERAL AVIATION ADMINISTRATION WITH HEADQUARTERS IN NEW YORK BECAUSE HE WAS UNABLE TO LOCATE RESIDENCE THAT HE COULD AFFORD IN NEW YORK AND WHO AFTER ANOTHER PERMANENT CHANGE OF STATION TO MIAMI SOLD HIS HOME SOME 8 MONTHS AFTER THE FIRST TRANSFER MAY NOT BE REIMBURSED FOR EXPENSES IN SALE OF HOME. ANY HYPOTHETICAL SAVINGS RESULTING FROM PERSONAL DELAY IN MOVING FAMILY MAY NOT BE ATTRIBUTED TO EITHER THE TRANSFER TO NEW YORK OR TO MIAMI. THEREFORE, CASE DOES NOT COME WITHIN EXCEPTION IN 49 COMP. GEN. 109.

TO MR. ROBERT J. SCHULLERY:

ON JUNE 5, 1969, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER FOR THE SUM OF $1,947.66 CLAIMED BY MR. WILLIAM J. AYTON, REPRESENTING THE EXPENSES THAT HE INCURRED IN THE SALE OF HIS RESIDENCE AT BETHESDA, MARYLAND, ON MARCH 7, 1969, IN THE CIRCUMSTANCES SET FORTH IN YOUR LETTER. ONLY XEROXED COPIES OF THE VOUCHER AND RELATED PAPERS ACCOMPANIED YOUR LETTER TO US.

YOU SUGGEST THAT THE CIRCUMSTANCES MAY JUSTIFY AN EXCEPTION TO THE DAILY COMMUTING RULE WHICH WAS OUTLINED IN OUR DECISION B-161606 DATED AUGUST 9, 1967, 47 COMP. GEN. 109. WE POINT OUT HERE THAT IN B-161606 THE RESIDENCE SOLD WAS THE ONE OCCUPIED BY THE FAMILY TO WHICH THE EMPLOYEE REGULARLY HAD BEEN COMMUTING ON WEEKENDS UNTIL HE WAS TRANSFERRED TO TEXAS AND THERE WAS AN UNAVAILABILITY OF SUITABLE HOUSING WITHIN COMMUTING DISTANCE OF THE OLD STATION.

IN THIS CASE, YOU SAY THAT THE CLAIMANT WAS EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION (FAA) ON FEBRUARY 26, 1968, BY TRANSFER FROM THE NATIONAL TRANSPORTATION SAFETY BOARD, WASHINGTON, D.C., AND HIS FIRST OFFICIAL FAA DUTY STATION WAS AT THE JFK AIRPORT, NEW YORK, NEW YORK. DURING THE APPROXIMATE EIGHT MONTHS THAT MR. AYTON WAS STATIONED IN NEW YORK, HE PERFORMED EXTENSIVE OVERSEAS TRAVEL AND WAS ACTUALLY PRESENT AT HIS OFFICIAL STATION FOR ONLY 55 WORKDAYS DURING THOSE MONTHS. HE WAS TRANSFERRED FROM THIS LOCATION TO MIAMI, FLORIDA, ON OCTOBER 18, 1968.

IMMEDIATELY PRIOR TO HIS FAA EMPLOYMENT THE CLAIMANT'S RESIDENCE WAS AT BETHESDA. IN THE NEW YORK CITY AREA, HE WAS UNABLE TO LOCATE A RESIDENCE WHICH HE COULD AFFORD AND, CONSEQUENTLY, THE EMPLOYEE USED TRANSIENT QUARTERS NEAR HIS OFFICIAL STATION AND CONTINUED OWNERSHIP OF THE BETHESDA HOME AS THE FAMILY'S RESIDENCE. THE BETHESDA HOME WAS SOLD AND SETTLEMENT WAS MADE ON MARCH 7, 1969.

YOU SUGGEST THAT IF THE EMPLOYEE HAD SOLD THE BETHESDA RESIDENCE IMMEDIATELY AFTER THE TRANSFER TO NEW YORK AND HAD PURCHASED A RESIDENCE THERE AND HAD THEN SOLD SUCH A NEW YORK RESIDENCE UPON TRANSFER TO MIAMI, IT WOULD HAVE COST THE GOVERNMENT FAR IN EXCESS OF THE AMOUNT CLAIMED FOR THE REAL ESTATE EXPENSES OF SALE OF THE BETHESDA HOME. BECAUSE MR. AYTON DID NOT EXERCISE ALL OF HIS RIGHTS UPON TRANSFER TO NEW YORK YOU SUGGEST THAT IT WOULD NOT BE EQUITABLE TO DISALLOW REIMBURSEMENT OF THE EXPENSES INCURRED IN SELLING THE BETHESDA RESIDENCE.

AS TO THOSE CIRCUMSTANCES WHICH MAY HAVE EXISTED IN MR. AYTON'S FAVOR PRIOR TO THE TRANSFER TO MIAMI, WE NOTE THAT MORE THAN A YEAR ELAPSED DURING THE PERIOD FROM FEBRUARY 26, 1968, TO MARCH 7, 1969. SEE SECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966. HENCE THE HYPOTHETICAL SAVINGS RESULTING FROM MR. AYTON'S PERSONAL DELAY IN NOT MOVING HIS FAMILY AND HOUSEHOLD GOODS TO NEW YORK AND NOT SELLING THE BETHESDA RESIDENCE MAY NOT BE ATTRIBUTED AS A MATTER OF EQUITY EITHER TO THE TRANSFER TO NEW YORK OR TO THE TRANSFER TO MIAMI, REGARDLESS OF WHETHER MR. AYTON ENTERED INTO THE CONTRACT TO SELL PRIOR TO FEBRUARY 26, 1969.

THEREFORE, SINCE IT APPEARS THAT MR. AYTON'S CASE DOES NOT COME WITHIN THE EXCEPTION WHICH WAS FASHIONED IN THE DECISION B-161606 (47 COMP. GEN. 109) AND THAT HIS CLAIM DOES NOT OTHERWISE MEET THE REQUIREMENTS OF SECTION 4.1D OF THE CIRCULAR, THE VOUCHER MENTIONED IN YOUR LETTER MAY NOT BE CERTIFIED FOR PAYMENT. SEE THE ENCLOSED COPIES OF OUR DECISION B- 164905 DATED AUGUST 27, 1968, AND OF THE DECISIONS B 163788 DATED JUNE 7, 1968, AND B-164318 DATED JUNE 21, 1968, CITED THEREIN. SEE ALSO B-164937 DATED AUGUST 16, 1968, AND B-164958 DATED AUGUST 26, 1968, COPIES ENCLOSED.

THE XEROXED COPIES OF THE VOUCHER AND PAPERS SUBMITTED WITH YOUR LETTER TO US ARE BEING RETAINED AS EXHIBITS IN OUR FILE.