B-173973, OCT 1, 1971

B-173973, OCT 1, 1971

CIVILIAN EMPLOYEE - TERMINATION OF LEASE DECISION DENYING CLAIM OF WALTER L. RAY FOR REIMBURSEMENT OF EXPENSES INCIDENT TO TERMINATION OF A LEASE ON A RESIDENCE OWNED BY HIM AT HIS NEW PERMANENT DUTY STATION. SECTION 4.2F, OMB CIRCULAR NO. A-56, AND 5 U.S.C. 5724A CLEARLY STATE THAT REIMBURSEMENT FOR SUCH EXPENSES MAY BE MADE ONLY WHERE THEY ARE INCURRED INCIDENT TO TERMINATING A LEASE AT THE OLD DUTY STATION, NOT AT THE NEW STATION.

TO U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 26, 1971, AND ENCLOSURES, REFERENCE 5-360, INQUIRING AS TO WHETHER THE CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED BY MR. WALTER L. RAY IN TERMINATING A LEASE MAY BE CERTIFIED FOR PAYMENT IN VIEW OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-56, REVISED JUNE 26, 1969, SECTION 4.2F.

THE MATTER CONCERNS THE TRANSFER OF MR. RAY FROM HIS DUTY STATION AT MANSON, WASHINGTON, TO SAN ANGELO, TEXAS. THE RECORD DISCLOSES THAT MR. RAY OWNED A DWELLING IN SAN ANGELO, TEXAS, THE SITE OF THE NEW DUTY STATION, WHICH HE HAD PREVIOUSLY LEASED TO A TENANT. UPON BEING NOTIFIED OF THE RELOCATION OF HIS DUTY STATION, MR. RAY INFORMED THE TENANT OF THE IMPENDING TRANSFER AND OF HIS INTENTION TO THEREUPON RESIDE IN THE SAN ANGELO HOME. IN REACQUIRING POSSESSION OF THE PREMISES FOR THE USE OF HIS FAMILY, IT THUS BECAME NECESSARY FOR MR. RAY TO REFUND TO THE TENANT THE SUM OF $150 REPRESENTING THE UNEXPIRED PORTION OF THE LEASE. THIS AMOUNT IS WHAT MR. RAY SEEKS FOR REIMBURSEMENT UNDER THE CATEGORY "SETTLEMENT OF AN UNEXPIRED LEASE" PURSUANT TO THE AUTHORITY OF OMB CIRCULAR NO. A-56, SECTION 4.2F. IN SUPPORT OF HIS CLAIM, MR. RAY HAS SUBMITTED A RECEIPT IN THE AMOUNT OF $150 EVIDENCING THE PAYMENT BY HIM TO HIS TENANT FOR THE UNEXPIRED LEASE STIPEND. THIS CLAIM WAS SUSPENDED ON THE ORIGINAL VOUCHER, AS NOT ALLOWABLE UNDER SECTION 4.2F OF OMB CIRCULAR NO. A-56. HENCE, THE PRESENT CASE IS A RECLAIM FOR THE PREVIOUSLY DISALLOWED EXPENSE.

SECTION 4.2 OF OMB CIRCULAR A-56 STATES IN PERTINENT PART:

"F. SETTLEMENT OF AN UNEXPIRED LEASE. EXPENSES INCURRED FOR SETTLING AN UNEXPIRED LEASE (INCLUDING MONTH-TO-MONTH RENTAL) ON RESIDENCE QUARTERS OCCUPIED BY THE EMPLOYEE AT THE OLD OFFICIAL STATION MAY INCLUDE BROKER'S FEES FOR OBTAINING A SUBLEASE OR CHARGES FOR ADVERTISING AN UNEXPIRED LEASE. SUCH EXPENSES ARE REIMBURSABLE WHEN (1) APPLICABLE LAWS OR THE TERMS OF THE LEASE PROVIDE FOR PAYMENT OF SETTLEMENT EXPENSES, (2) SUCH EXPENSES CANNOT BE AVOIDED BY SUBLEASE OR OTHER ARRANGEMENT, (3) THE EMPLOYEE HAS NOT CONTRIBUTED TO THE EXPENSE BY FAILING TO GIVE APPROPRIATE LEASE TERMINATION NOTICE PROMPTLY AFTER HE HAS DEFINITE KNOWLEDGE OF THE PROPOSED TRANSFER, AND (4) THE BROKER'S FEES OR ADVERTISING CHARGES ARE NOT IN EXCESS OF THOSE CUSTOMARILY CHARGED FOR COMPARABLE SERVICES IN THAT LOCALITY. ITEMIZATION OF THESE EXPENSES IS REQUIRED AND THE TOTAL AMOUNT WILL BE ENTERED ON AN APPROPRIATE TRAVEL VOUCHER. THIS VOUCHER MAY BE SUBMITTED SEPARATELY OR WITH A CLAIM THAT IS TO BE MADE FOR EXPENSES INCIDENT TO THE PURCHASE OF A DWELLING. EACH ITEM MUST BE SUPPORTED BY DOCUMENTATION SHOWING THAT THE EXPENSE WAS IN FACT INCURRED AND PAID BY THE EMPLOYEE."

FURTHER, 5 U.S.C. 5724A STATES IN PERTINENT PART:

"(A) UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE AND TO THE EXTENT CONSIDERED NECESSARY AND APPROPRIATE, AS PROVIDED THEREIN, APPROPRIATIONS OR OTHER FUNDS AVAILABLE TO AN AGENCY FOR ADMINISTRATIVE EXPENSES ARE AVAILABLE FOR THE REIMBURSEMENT OF ALL OR PART OF THE FOLLOWING EXPENSES OF AN EMPLOYEE FOR WHOM THE GOVERNMENT PAYS EXPENSES OF TRAVEL AND TRANSPORTATION UNDER SECTION 5724(A) OF THIS TITLE:

"(4) EXPENSES OF THE SALE OF THE RESIDENCE (OR THE SETTLEMENT OF AN UNEXPIRED LEASE) OF THE EMPLOYEE AT THE OLD STATION AND PURCHASE OF A HOME AT THE NEW OFFICIAL STATION REQUIRED TO BE PAID BY HIM WHEN THE OLD AND NEW OFFICIAL STATIONS ARE LOCATED WITHIN THE UNITED STATES."

THE ABOVE CITED STATUTE IS THE BASIS FOR THE PROMULGATION OF THAT PORTION OF OMB CIRCULAR NO. A-56 PERTINENT TO THE INSTANT CASE.

BOTH SECTION 4.2F OF THE CIRCULAR AND SUBSECTION (A)(4) OF THE STATUTE MAKE CLEAR THAT IT WAS THE INTENT OF THOSE SECTIONS TO PROVIDE REIMBURSEMENT FOR COSTS OF LEASE TERMINATIONS WHICH OCCURRED ONLY AT THE OLD DUTY STATION. THERE CONSEQUENTLY IS NO AUTHORITY FOR AN EMPLOYEE TO OBTAIN REIMBURSEMENTS FROM LEASE TERMINATIONS WHICH TAKE PLACE AT HIS NEW DUTY STATION.

IN LIGHT OF THE FOREGOING, THE VOUCHER, WITH ATTACHMENTS, IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.