B-168901, FEB. 27, 1970

B-168901, FEB. 27, 1970

CIVIL PAY--TRANSFERS--REAL ESTATE EXPENSES DECISION SUSTAINING DISALLOWANCE OF CLAIM FOR TEMPORARY QUARTERS ALLOWANCE AND REIMBURSEMENT FOR SELLING EXPENSES OF RESIDENCE INCIDENT TO TRANSFER FROM SPRINGFIELD, MASS; TO QUONSET POINT, RHODE ISLAND. TRANSFERRED EMPLOYEE WHO WAS UNABLE TO SELL RESIDENCE WITHIN ONE YEAR PERIOD BECAUSE OF MARKET CONDITIONS OR OTHER CIRCUMSTANCES NOT INVOLVING LITIGATION MAY NOT BE REIMBURSED FOR REAL ESTATE EXPENSES. EMPLOYEE MAY NOT BE PAID TEMPORARY QUARTERS ALLOWANCE FOR OCCUPANCY OF QUARTERS IN HOME ON WHICH APPLICATION FOR LOAN HAD PREVIOUSLY BEEN MADE.

TO MR. SAVERIO DI GEORGIO:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1970, REQUESTING REVIEW OF THE SETTLEMENT BY OUR OFFICE WHEREIN YOUR CLAIM FOR TEMPORARY QUARTERS ALLOWANCE AND REIMBURSEMENT OF SELLING EXPENSES OF RESIDENCE WAS DISALLOWED INCIDENT TO YOUR TRANSFER FROM SPRINGFIELD, MASSACHUSETTS, TO QUONSET POINT, RHODE ISLAND, ON NOVEMBER 20, 1966.

REFERRING TO THE ITEM FOR REIMBURSEMENT OF REAL ESTATE EXPENSES IT APPEARS THAT THE SETTLEMENT ON THE SALE OF YOUR RESIDENCE AT THE OLD OFFICIAL STATION DID NOT OCCUR UNTIL APRIL 5, 1968. YOUR CLAIM FOR REIMBURSEMENT OF SUCH EXPENSES WAS DISALLOWED ON THE BASIS OF SECTION 4.1 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED OCTOBER 12, 1966, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"D. THE SETTLEMENT DATES FOR THE SALE AND PURCHASE OR LEASE TERMINATION TRANSACTIONS FOR WHICH REIMBURSEMENT IS REQUESTED ARE NOT LATER THAN ONE YEAR AFTER THE DATE ON WHICH THE EMPLOYEE REPORTED FOR DUTY AT THE NEW OFFICIAL STATION, EXCEPT THAT AN APPROPRIATE EXTENSION OF TIME MAY BE AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR HIS DESIGNEE WHEN SETTLEMENT IS NECESSARILY DELAYED BECAUSE OF LITIGATION."

SINCE THE SETTLEMENT DATE FOR THE SALE OF YOUR RESIDENCE WAS ON APRIL 5, 1968, AND YOU REPORTED FOR DUTY ON NOVEMBER 20, 1966, ANY REIMBURSEMENT OF REAL ESTATE EXPENSES INCIDENT TO THE SALE OF YOUR RESIDENCE AT THE OLD OFFICIAL STATION WAS PRECLUDED BY THE ABOVE REGULATION. THE FACT THAT YOU WERE UNABLE TO SELL YOUR RESIDENCE WITHIN THE ONE-YEAR PERIOD BECAUSE OF MARKET CONDITIONS OR OTHER CIRCUMSTANCES NOT INVOLVING LITIGATION DID NOT, UNDER THAT REGULATION, AFFORD ANY BASIS FOR EXTENDING THE PERIOD.

THE ITEM CONCERNING ALLOWANCE OF TEMPORARY QUARTERS AT YOUR NEW OFFICIAL STATION FROM NOVEMBER 20 TO DECEMBER 20, 1966, WAS DISALLOWED ON THE BASIS OF SECTION 2.5, BUREAU OF THE BUDGET CIRCULAR NO. A-56. IT WAS FOUND THAT THE QUARTERS INTO WHICH YOU MOVED ON NOVEMBER 20, 1966, AND FOR THE PURCHASE OF WHICH YOU HAD PREVIOUSLY APPLIED FOR A LOAN, WERE YOUR PERMANENT QUARTERS FOR WHICH YOU ARE NOT ENTITLED TO A TEMPORARY QUARTERS ALLOWANCE.

IN SIMILAR CASES, WE HAVE PREVIOUSLY HELD THAT THE DETERMINATION WHETHER QUARTERS ARE PERMANENT OR TEMPORARY DEPENDS ON THE INTENT OF THE EMPLOYEE AS DISCERNED FROM THE FACTS OF EACH CASE. ALSO, WE HAVE SAID THAT AFTER AN EMPLOYEE OCCUPIES THE RESIDENCE IN WHICH HE INTENDS TO REMAIN THE FAILURE OF HIS HOUSEHOLD EFFECTS TO ARRIVE UNTIL SOME LATER DATE IS NOT MATERIAL. SEE B-167361, AUGUST 5, 1969, COPY ENCLOSED.

THE FACTS IN YOUR CASE, AS STATED ABOVE, STRONGLY INDICATE THAT ON NOVEMBER 20, 1966, WHEN YOU MOVED INTO YOUR QUARTERS YOUR INTENTION WAS TO MAKE THEM YOUR PERMANENT QUARTERS THUS PRECLUDING ENTITLEMENT TO A TEMPORARY QUARTERS ALLOWANCE.

IN VIEW OF THE FOREGOING THE DISALLOWANCE OF THE ITEMS REFERRED TO HEREIN WAS PROPER AND MUST BE SUSTAINED.