B-167493, AUG. 8, 1969

B-167493, AUG. 8, 1969

CIVIL PAY - TRANSFERS - SUBSISTENCE DURING OCCUPANCY OF TEMPORARY QUARTERS - COST-OF-LIVING ALLOWANCE DECISION TO CERTIFYING OFFICER OF RURAL ELECTRIFICATION ADMINISTRATION CONCERNING AMOUNT OF FOREIGN COST-OF-LIVING ALLOWANCE TO BE DEDUCTED FROM SUBSISTENCE. CONCLUSION IS THAT COST OF LIVING ACTUALLY PAID FOR PERIOD DURING WHICH HE IS ENTITLED TO REIMBURSEMENT OF SUBSISTENCE EXPENSES SHOULD BE DEDUCTED. THERE IS NO REASON WHY DEDUCTION SHOULD BE MADE ONLY FROM THAT PART OF ALLOWABLE SUBSISTENCE PAYMENTS APPLICABLE TO THE EMPLOYEE.

TO MR. DAVID M. ADISON:

WE REFER TO YOUR LETTER OF JULY 11, 1969, BY WHICH YOU REQUEST OUR ADVANCE DECISION WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER OF MR. WALLACE A. STRICKLAND TO REIMBURSE HIM AN ADDITIONAL AMOUNT FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO HIS TRANSFER FROM WASHINGTON, D.C., TO ANCHORAGE, ALASKA, AS AN EMPLOYEE OF THE RURAL ELECTRIFICATION ADMINISTRATION, DEPARTMENT OF AGRICULTURE, WHICH WAS EFFECTIVE ON OR ABOUT OCTOBER 24, 1968.

THE QUESTIONS INVOLVED RELATE TO THE PROPER APPLICATION OF THE DECISION OF DECEMBER 26, 1967, B-162977, WHICH REQUIRES, IN EFFECT, THAT THE TERRITORIAL COST-OF-LIVING ALLOWANCE RECEIVED BY AN EMPLOYEE ASSIGNED TO DUTY IN HAWAII, ALASKA AND OTHER NONFOREIGN AREAS BE DEDUCTED FROM THE SUBSISTENCE EXPENSES OTHERWISE ALLOWABLE UNDER SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56. THE AMOUNT DEDUCTED SHOULD BE THE COST-OF- LIVING ALLOWANCE ACTUALLY PAID THE EMPLOYEE FOR THE PERIOD DURING WHICH HE IS ENTITLED TO REIMBURSEMENT OF SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS. THUS, ONE TENTH OF THE BIWEEKLY COST-OF-LIVING ALLOWANCE SHOULD BE DEDUCTED FOR EACH DAY DURING THE PERIOD OF TEMPORARY SUBSISTENCE ENTITLEMENT THAT THE EMPLOYEE WAS IN A PAY STATUS. THE COMPUTATION SHOULD BE MADE ON THE BASIS OF THE 10 DAY PERIODS USED IN COMPUTING THE TEMPORARY SUBSISTENCE ALLOWANCE AS PROVIDED IN SECTION 2.5D (2) OF THE CITED REGULATION. SINCE THE TEMPORARY SUBSISTENCE ALLOWANCE IS PROVIDED FOR THE EMPLOYEE AND HIS FAMILY, WE SEE NO BASIS FOR DEDUCTING THE COST-OF LIVING ALLOWANCE ONLY FROM THAT PART OF ALLOWABLE SUBSISTENCE PAYMENTS APPLICABLE TO THE EMPLOYEE.

IN ACCORDANCE WITH THE ABOVE, THE COMPUTATION OF MR. STRICKLAND'S ENTITLEMENT, USING THE FIGURES YOU HAVE FURNISHED, WOULD BE AS FOLLOWS:

ALLOWABLE SUBSISTENCE, 1ST 10 DAYS $ 362.42

SIX DAYS COLA RECEIVED DURING PERIOD 83.52

$ 278.90

ALLOWABLE SUBSISTENCE, 2D 10 DAYS $ 212.88

EIGHT DAYS COLA RECEIVED DURING PERIOD111.36

$ 101.52

ALLOWABLE SUBSISTENCE, FINAL 6 DAYS $ 131.22

FOUR DAYS COLA RECEIVED DURING PERIOD 55.68

$ 75.54

ACCORDINGLY, TOTAL ALLOWABLE SUBSISTENCE IN THIS CASE WOULD BE $455.96. WE NOTE THAT A SIMILAR RESULT WOULD BE OBTAINED IN THIS CASE IF THE TOTAL COST-OF-LIVING ALLOWANCE RECEIVED DURING THE SUBSISTENCE PERIOD WERE DEDUCTED FROM THE TOTAL SUBSISTENCE REIMBURSEMENT OTHERWISE ALLOWABLE.

ALTHOUGH FEDERAL INCOME TAX WITHHOLDING IS A MATTER WITHIN THE JURISDICTION OF THE INTERNAL REVENUE SERVICE, WE BELIEVE THAT WITHHOLDING TAX SHOULD BE APPLIED ONLY TO THE AMOUNT DUE AFTER DEDUCTION OF THE COST- OF-LIVING ALLOWANCE. WE ASSUME THE TAX WAS DEDUCTED ON THE COST-OF-LIVING ALLOWANCE.

MR. STRICKLAND'S ABSENCE FROM HIS NEW OFFICIAL STATION ON OFFICIAL BUSINESS WOULD NOT AFFECT HIS ENTITLEMENT IN THIS CASE BECAUSE HIS FAMILY OCCUPIED TEMPORARY QUARTERS DURING HIS ABSENCE FOR WHICH HE HAS CLAIMED REIMBURSEMENT AND BECAUSE HIS COST-OF-LIVING ALLOWANCE CONTINUED DURING HIS ABSENCE.

FOR THE REASONS STATED THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT OF $97.44, THE SUM OF $358.52 HAVING ALREADY BEEN PAID. SUCH AMOUNT WOULD, OF COURSE, BE SUBJECT TO AN APPROPRIATE INCOME TAX WITHHOLDING ADJUSTMENT.