B-173326, OCT 27, 1971

B-173326, OCT 27, 1971

CIVILIAN EMPLOYEE - CHANGE OF STATION - TEMPORARY QUARTERS DENIAL OF CLAIM OF CHARLES H. COPELAND FOR TEMPORARY QUARTERS ALLOWANCE AND MISCELLANEOUS EXPENSES INCIDENT TO A TRANSFER FROM DETROIT, MICH., TO WASHINGTON, D.C., AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE. A DETERMINATION AS TO WHAT CONSTITUTES "TEMPORARY QUARTERS" IS NOT SUSCEPTIBLE OF ANY PRECISE DEFINITION, AND EACH CASE MUST BE DECIDED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED. THE FACTS HERE INDICATE THAT THE APARTMENT RENTED BY CLAIMANT FOR 10 MONTHS CONSTITUTED PERMANENT QUARTERS, IN CONNECTION WITH WHICH HE WAS PAID $200 AS MISCELLANEOUS EXPENSES. ACCORDINGLY, THERE IS NO BASIS FOR ALLOWING THE CLAIM.

TO MR. CHARLES H. COPELAND:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1971, CONCERNING YOUR CLAIM FOR TEMPORARY QUARTERS ALLOWANCE AND MISCELLANEOUS EXPENSES INCIDENT TO YOUR TRANSFER FROM DETROIT, MICHIGAN, TO WASHINGTON, D.C., AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION IN SETTLEMENT DATED MARCH 29, 1971.

THE RECORD INDICATES THAT YOU MOVED INTO AN APARTMENT IN ARLINGTON, VIRGINIA, ON A ONE-YEAR LEASE ON MARCH 3, 1969. YOU LIVED ALONE IN THE APARTMENT UNTIL MARCH 17, 1969, WHEN YOUR FAMILY ARRIVED. YOUR HOUSEHOLD GOODS ARRIVED ON THE SAME DAY AND WERE MOVED INTO THE APARTMENT, WITH THE EXCEPTION OF 1,240 POUNDS, WHICH WAS PUT INTO STORAGE.

THE RECORD FURTHER INDICATES THAT ON AUGUST 6, 1969, SETTLEMENT WAS MADE IN CONNECTION WITH THE SALE OF YOUR FORMER RESIDENCE AT DETROIT, MICHIGAN; THAT ON AUGUST 17, 1969, YOU SIGNED A CONTRACT TO PURCHASE A HOME IN RESTON, VIRGINIA; AND THAT IN DECEMBER 1969 YOU MADE SETTLEMENT ON YOUR NEW RESIDENCE AND PRESUMABLY MOVED IN DURING THAT MONTH.

YOUR CLAIM CONSISTS OF (1) REIMBURSEMENT FOR THE COST OF TEMPORARY QUARTERS AND SUBSISTENCE IN THE AMOUNT OF $547.92 FOR THE PERIOD MARCH 3 TO APRIL 1, 1969, AND (2) MISCELLANEOUS MOVING EXPENSES IN THE GROSS AMOUNT OF $653.30 (LESS $200 PREVIOUSLY PAID BY THE GOVERNMENT) REPRESENTING LOSS OF SECURITY DEPOSIT ($300) ON RENTED APARTMENT AND COST OF CUTTING AND FITTING RUGS FROM ONE RESIDENCE TO ANOTHER ($353.30).

YOUR CLAIM FOR TEMPORARY QUARTERS WAS DISALLOWED BY OUR CLAIMS DIVISION SUBSTANTIALLY FOR THE REASON THAT WHILE YOU MOVED INTO AN APARTMENT ON MARCH 3, 1969, WITH THE APPARENT INTENT OF PURCHASING A HOME AT SOME INDEFINITE FUTURE DATE, THERE WAS NO EVIDENCE OF RECORD OF AN INTENT ON YOUR PART TO VACATE SUCH QUARTERS ON ANY SPECIFIC DATE, AND THAT CONSEQUENTLY THE QUARTERS OCCUPIED BY YOU AND YOUR FAMILY CONSTITUTED PERMANENT QUARTERS.

IN EXPLAINING WHY YOU LEASED THE APARTMENT IN ARLINGTON FOR ONE YEAR, YOU STATE THAT A SHORTER TERM LEASE WAS NOT SELECTED BECAUSE "(1) WITHOUT SELLING THE HOME IN DETROIT, WE WERE UNSURE OF THE TERM, AND (2) AVAILABILITY TO FAMILIES WITH MULTIPLE CHILDREN AND PETS IS POOR." YOU ALSO STATE THAT YOU FOUND NO SHORT TERM LEASE APARTMENT THAT WOULD TAKE YOUR FAMILY AND PETS. YOU FURTHER STATE THAT BECAUSE OF LACK OF SPACE IN THE APARTMENT, YOU "HAD TO STORE PIANO, BEDS, AND OTHER FURNISHINGS TO AWAIT PURCHASE OF THE NEW HOME." YOU ADMIT THAT ARLINGTON TOWERS (THE APARTMENT COMPLEX WHICH YOU OCCUPIED) PROVIDES PERMANENT QUARTERS BUT YOU SAY THAT THIS LOCATION WAS SELECTED BECAUSE OF BEING CENTRALLY LOCATED FOR HOUSE HUNTING "IN THE FERVENT HOPE THAT WE WOULD SOON SELL THE HOUSE IN DETROIT."

YOU FURTHER CONTEND THAT THE FACT THAT YOU CONTRACTED FOR A NEW HOME AND MOVED INTO IT AS SOON AS POSSIBLE CLEARLY SHOWED THAT THE USE OF THE APARTMENT WAS TEMPORARY. YOU SAY THAT FORFEITURE OF DEPOSIT, STORAGE OF HOUSEHOLD GOODS, INADEQUACY OF THE APARTMENT, ALL CONTRIBUTED TO THE INTENT TO PURCHASE A NEW RESIDENCE AND THAT THE QUARTERS IN QUESTION WERE ONLY TEMPORARY. TO FURTHER PROVE YOUR INTENTION TO VACATE THE APARTMENT, YOU INVITE ATTENTION TO THE FACT THAT ON AUGUST 17, 1969, YOU SIGNED A CONTRACT TO PURCHASE YOUR NEW HOME WHICH WAS ONLY 11 DAYS AFTER THE CLOSING DATE OF YOUR FORMER RESIDENCE.

SECTION 2.5A OF THE BUREAU OF THE BUDGET CIRCULAR (NOW OFFICE OF MANAGEMENT AND BUDGET) NO. A-56, REVISED OCTOBER 12, 1966, IN EFFECT DURING THE PERIOD OF YOUR CLAIM, CONTAINS CERTAIN GUIDELINES FOR USE IN MAKING PAYMENTS FOR SUBSISTENCE EXPENSES FOR THE EMPLOYEE AND HIS FAMILY WHILE OCCUPYING TEMPORARY QUARTERS. IT IS THERE STATED THAT "AS A GENERAL POLICY, ALLOWANCES FOR TEMPORARY QUARTERS SHOULD BE REDUCED OR AVOIDED IF A ROUND TRIP TO SEEK PERMANENT RESIDENCE QUARTERS HAS BEEN MADE *** ." THIS CONNECTION THE RECORD SHOWS THAT YOU WERE REIMBURSED AT GOVERNMENT EXPENSE FOR A HOUSE HUNTING TRIP TO SEEK A PERMANENT RESIDENCE INCIDENT TO YOUR TRANSFER.

SECTION 2.5B OF THE SAME CIRCULAR NO. A-56 FURTHER PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"(3) TEMPORARY QUARTERS REFER TO LODGING OBTAINED TEMPORARILY, AFTER A TRANSFER HAS BEEN AUTHORIZED OR APPROVED AND AFTER THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY VACATE THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME OF THE TRANSFER, UNTIL THE EMPLOYEE MOVES, WITHIN THE ALLOWABLE 30 OR 60 DAYS' TIME LIMIT, INTO PERMANENT RESIDENCE QUARTERS.

"(4) THE SPECIFIED TIME LIMITS ARE MAXIMUM PERIODS AND THE NORMAL LENGTH OF NECESSARY OCCUPANCY OF TEMPORARY QUARTERS IS EXPECTED TO AVERAGE MUCH LESS. TEMPORARY QUARTERS SHOULD BE REGARDED AS AN EXPEDIENT, TO BE USED ONLY IF, OR FOR AS LONG AS, NECESSARY UNTIL THE EMPLOYEE CONCERNED CAN MOVE INTO RESIDENCE QUARTERS OF A PERMANENT TYPE."

WE HAVE HELD THAT A DETERMINATION AS TO WHAT CONSTITUTES "TEMPORARY QUARTERS" IS NOT SUSCEPTIBLE OF ANY PRECISE DEFINITION AND, THEREFORE, EACH CASE MUST BE DECIDED ON THE BASIS OF THE PARTICULAR FACTS INVOLVED. SEE B-161960, JULY 31, 1967, AND B-162239, AUGUST 28, 1967 (COPIES ENCLOSED). THE DURATION OF A LEASE, MOVEMENT OF HOUSEHOLD EFFECTS INTO THE QUARTERS, TYPE OF QUARTERS, EXPRESSION OF INTENT, AND THE PERIOD OF OCCUPANCY ON THE PART OF AN EMPLOYEE ARE ALL FACTORS TO BE CONSIDERED IN DETERMINING WHETHER THE QUARTERS OCCUPIED ARE TEMPORARY IN NATURE. THE OWNERSHIP OF PERMANENT QUARTERS AT THE OLD STATION MAY NOT BE REGARDED PER SE AS ESTABLISHING THAT RENTAL QUARTERS AT THE NEW STATION ARE TEMPORARY. IN PARTICULAR CIRCUMSTANCES WHERE AN EMPLOYEE'S STAY IN THE APARTMENT WAS FOR A FIXED PERIOD OF TIME, WE HAVE CONSIDERED SUCH QUARTERS AS TEMPORARY. SEE 47 COMP. GEN. 84 (1967).

YOU SAY THAT THE PURCHASE OF YOUR PERMANENT RESIDENCE IN VIRGINIA WAS CONTINGENT UPON THE SALE OF YOUR FORMER RESIDENCE IN DETROIT, WHICH SALE WAS TO OCCUR AT SOME INDEFINITE FUTURE DATE WHEN A BUYER COULD BE OBTAINED. WE DO NOT BELIEVE THIS CONSTITUTES SUFFICIENT EVIDENCE OF AN INTENT TO REMAIN IN THE LEASED APARTMENT FOR ONLY A SHORT PERIOD OF TIME AS CONTEMPLATED BY THE FOREGOING REGULATION. SINCE YOU REMAINED IN THE APARTMENT FOR APPROXIMATELY 10 MONTHS, WE MUST CONCLUDE THAT YOUR APARTMENT CONSTITUTED PERMANENT QUARTERS. SEE ENCLOSED COPIES OF OUR DECISIONS, B-162510, OCTOBER 10, 1967, AND B-172228, APRIL 29, 1971, DENYING CLAIMS FOR QUARTERS AND SUBSISTENCE WHERE, LIKE IN YOUR CASE, THE EMPLOYEE'S INTENTION WAS TO PURCHASE A PERMANENT RESIDENCE AT SOME INDEFINITE FUTURE DATE. ALSO, THERE HAS NOT BEEN OVERLOOKED THE FACT THAT AT THE TIME YOU MOVED INTO THE APARTMENT YOU WERE PAID THE SUM OF $200 AS MISCELLANEOUS EXPENSES. THIS ALLOWANCE IS RELATED TO DEFRAYING VARIOUS CONTINGENT EXPENSES ASSOCIATED WITH MOVING INTO A PERMANENT RESIDENCE IN CONNECTION WITH AN AUTHORIZED PERMANENT CHANGE OF STATION.

AS TO THE MISCELLANEOUS EXPENSE ALLOWANCE IT FOLLOWS THAT SINCE YOUR MOVE INTO THE APARTMENT IS REGARDED AS A MOVE INTO PERMANENT QUARTERS THERE WOULD BE NO BASIS FOR ALLOWING ANY OTHER EXPENSES IN THE MISCELLANEOUS EXPENSE CATEGORY FOR MOVING INTO THE HOUSE YOU LATER PURCHASED. IN ANY EVENT, THE COST OF CUTTING AND FITTING RUGS IN YOUR CASE COULD NOT BE ALLOWED SINCE THE RECORDS INDICATE THAT THE RUGS WERE NOT IN YOUR FORMER RESIDENCE IN DETROIT BUT RATHER WERE NEWLY PURCHASED AND PLACED IN YOUR LEASED APARTMENT. SEE SECTION 3.1B(2) OF CIRCULAR NO. A-56.

ACCORDINGLY, ON THE RECORD BEFORE US THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.