B-177244, FEB 20, 1973

B-177244, FEB 20, 1973

CIVILIAN EMPLOYEE - TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE - OCCUPANCY OF PERMANENT RESIDENCE DECISION AFFIRMING A PRIOR DENIAL OF THE CLAIM OF ALFRED V. NIGRO, AN EMPLOYEE OF THE SOCIAL SECURITY ADMINISTRATION, FOR TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE INCIDENT TO HIS CHANGE OF OFFICIAL STATION FROM LOS ANGELES, CALIF., TO SAN DIEGO, CALIF. TEMPORARY QUARTERS SUBSISTENCE MAY NOT BE PAID FOR OCCUPANCY OF A RESIDENCE WHICH LATER BECOMES PERMANENT UNLESS IT IS ESTABLISHED THAT THE EMPLOYEE DID NOT INTEND TO STAY AT THAT HOUSE ON A PERMANENT BASIS. ALSO, ELIGIBILITY FOR TEMPORARY QUARTERS ALLOWANCE TERMINATES WHEN THE EMPLOYEE OR ANY MEMBER OF HIS IMMEDIATE FAMILY OCCUPIES PERMANENT RESIDENCE QUARTERS. OMB CIRCULAR NO. A-56, SECTION 2.5B(6). HOWEVER, BEFORE SUCH TIME, AN EMPLOYEE IS ENTITLED TO THE ALLOWANCE FOR A PERIOD NOT TO EXCEED 30 DAYS IF HIS CLAIM IS SUPPORTED BY SUFFICIENT EVIDENCE.

TO MR. ALFRED V. NIGRO:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 20, 1972, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF SEPTEMBER 13, 1972, WHICH DISALLOWED YOUR CLAIM FOR TEMPORARY QUARTERS SUBSISTENCE ALLOWANCE INCIDENT TO YOUR CHANGE OF OFFICIAL STATION FROM LOS ANGELES, CALIFORNIA, TO SAN DIEGO, CALIFORNIA, AS AN EMPLOYEE OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, SOCIAL SECURITY ADMINISTRATION.

THE FACTS IN YOUR CASE WERE STATED IN OUR OFFICE SETTLEMENT OF SEPTEMBER 13, 1972, AND NEED NOT BE REPEATED HERE EXCEPT AS PERTINENT TO THE PRESENT DISCUSSION OF THE CASE. YOUR CLAIM WAS DISALLOWED ON THE GROUND THAT YOUR TRAVEL ORDER DATED JANUARY 2, 1970, CONTAINED NO AUTHORIZATION FOR TEMPORARY QUARTERS ALLOWANCE NOR WAS THERE EVIDENCE OF SUBSEQUENT APPROVAL BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. SUCH EXPENSES ARE NOT REIMBURSABLE IN THE ABSENCE OF ADMINISTRATIVE AUTHORIZATION OR APPROVAL OF THE OCCUPANCY OF SUCH QUARTERS AT GOVERNMENT EXPENSE. ALSO, THERE WAS NO EVIDENCE THAT YOU EVER INTENDED TO USE THE DWELLING AT 3758 NOTRE DAME AVENUE, SAN DIEGO, EXCEPT AS A PERMANENT RESIDENCE.

IN SUPPORT OF YOUR ORIGINAL CLAIM FOR TEMPORARY QUARTERS ALLOWANCE FOR THE PERIOD FEBRUARY 21, 1970, THROUGH MARCH 22, 1970, YOU SUBMITTED THE FOLLOWING STATEMENT DATED AUGUST 19, 1970:

"I WAS TRANSFERRED TO SAN DIEGO IN DECEMBER 1969 AND SOLD AND VACATED MY HOME IN LOS ANGELES IN JANUARY 1970. I WAS IN LOS ANGELES ON DETAIL UNTIL FEBRUARY 20, 1970 DUE TO DELAY IN OPENING OF NEW OFFICE IN SAN DIEGO. REMAINED IN LOS ANGELES WITH FAMILY UNTIL FEBRUARY 20, 1970 WHEN NEW OFFICE SPACE IN SAN DIEGO WAS READY.

"ARRIVED IN SAN DIEGO WITH SPOUSE AND DEPENDENT DAUGHTER ON FEBRUARY 21, 1970 AT 10:30 A.M. HOUSEHOLD GOODS WERE PREVIOUSLY MOVED TO 3758 NOTRE DAME AVENUE, SAN DIEGO, CALIFORNIA ON JANUARY 8, 1970 UNDER AN AGREEMENT TO PURCHASE THE HOME. UPON ARRIVAL IN SAN DIEGO, EMPLOYEE LEARNED THAT LENDER WOULD NOT CONSUMMATE LOAN AND THE BUILDER ASKED THAT I REMOVE THE FURNITURE. DAUGHTER WAS PLACED IN DORMITORY AT SCHOOL AND SPOUSE RETURNED TO LOS ANGELES PENDING LOCATION OF PERMANENT RESIDENCE. EMPLOYEE REMAINED IN SAN DIEGO AND REPORTED AT NEW DUTY STATION ON FEBRUARY 23, 1970. EMPLOYEE WAS ESTABLISHING NEW GOVERNMENT OFFICE IN SAN DIEGO, EVENINGS AND WEEK-ENDS HAD TO BE DEVOTED TO UNCRATING OFFICE SUPPLIES, ASSEMBLING OFFICE FURNITURE, AND GENERALLY PERFORMING VARIED ACTIVITIES IN CONNECTION WITH SETTING UP A NEW OFFICE. NEVERTHELESS, EMPLOYEE CONTINUED TO ACTIVELY SEEK NEW HOUSING BUT COULD NOT FIND LIVING QUARTERS SUITABLE TO SPOUSE. EMPLOYEE THEN AGREED TO PAY BUILDER RENT PENDING MOVEMENT OF HOUSEHOLD GOODS TO ANOTHER LOCATION. (RECEIPT FOR RENT IS ATTACHED.) PREMISES WERE OCCUPIED BY EMPLOYEE DURING THE WEEK AND BY ENTIRE FAMILY ON WEEK ENDS FOR SLEEPING PURPOSES ONLY. ALL MEALS WERE EATEN IN RESTAURANTS. BUILDER WAS ANXIOUS TO SELL HOUSE AS HE NEEDED THE FUNDS TO MEET HIS OBLIGATIONS. EVENTUALLY, ON OR ABOUT MAY 1, 1970, THE BUILDER PREVAILED UPON THE LOAN COMPANY TO MAKE THE LOAN AND THE HOME WAS PURCHASED ON MAY 3, 1970.

"UNDER THE CIRCUMSTANCES, IT WAS IMPOSSIBLE TO BEGIN TEMPORARY SUBSISTENCE IN SAN DIEGO WITHIN 30 DAYS OF ORIGINAL TRANSFER IN DECEMBER 1969. FROM FEBRUARY 21, 1970 UNTIL MAY 3, 1970, I WAS A TENANT AT SUFFERENCE IN SAN DIEGO FOR WHICH RENT WAS CHARGED. THIS WAS A PRACTICAL SOLUTION AS RENTAL COSTS WERE LESS THAN MOTEL ACCOMMODATIONS. THERE WAS NO INTENTION TO EVENTUALLY PURCHASE THE HOME BECAUSE CONTRACT ORIGINALLY ENTERED INTO WAS NOT CONSUMMATED. TERMS TO PURCHASE WERE NOT AGREED UPON UNTIL MAY 1970.

"I DID NOT PERFORM DUTY IN SAN DIEGO AT ANY TIME PRIOR TO FEBRUARY 21, 1970."

IN YOUR LETTER OF SEPTEMBER 20, 1972, REQUESTING RECONSIDERATION OF YOUR CLAIM YOU STATE IN PART AS FOLLOWS:

"APPARENTLY, IN PROCESSING MY CLAIM YOU DID NOT HAVE THE SUPPLEMENTAL TRAVEL ORDER AUTHORIZING SUBSISTENCE FOR 30 DAYS, A COPY OF WHICH IS ATTACHED HEREWITH. ALSO, THERE ARE ADDITIONAL FACTS WHICH YOU DID NOT CONSIDER.

"IT IS TRUE THAT THE HOUSEHOLD GOODS WERE MOVED INTO THE NEW HOME ON JANUARY 8, 1970, BUT DUE TO THE DIFFICULTIES ENCOUNTERED IT WOULD HAVE BEEN IMPRACTICAL TO MOVE THE FURNITURE OUT AGAIN WHILE NEGOTIATIONS FOR PURCHASE WERE STILL GOING ON. THE INTENT NOT TO MAKE THAT HOME MY RESIDENCE AT THAT TIME IS MANIFESTED BY THE FACT THAT I DID NOT MOVE MY FAMILY INTO THE HOME. TECHNICALLY, IT WAS MORE OF A TEMPORARY STORAGE FOR FURNITURE RATHER THAN A RESIDENCE WHICH IS DEMONSTRATED BY THE FACT THAT DURING THE THREE MONTH PERIOD WE WERE LOOKING AT OTHER HOMES AND ALSO RENTED A FURNISHED APARTMENT AS SHOWN BY THE ENCLOSED RENT RECEIPTS.

"THE AGREEMENT TO PAY RENT ON THE HOUSE WAS NOT MADE UNTIL CONSUMMATION OF THE PURCHASE OF THE HOME ON MAY 3, 1970, AND PAYMENT OF RENT WAS NOT MADE UNTIL JUNE 3, 1970, AS SHOWN BY THE ENCLOSED RECEIPT. IN FACT, THE TERM RENT IS A MISNOMER AS IT WAS AN EX POST FACTO ADJUSTMENT FOR THE BENEFIT OF THE BUILDER, THE INNOCENT THIRD PARTY IN THE CASE, TO DEFRAY HIS COSTS WHILE NEGOTIATIONS FOR PURCHASE WERE TRANSPIRING WITH THE LENDING AGENCY.

"IN BRIEF, IT APPEARS TO ME THAT I SHOULD BE COMPENSATED FOR RENTAL CHARGES EITHER FOR ONE PLACE OR THE OTHER. ALSO, I FAIL TO UNDERSTAND WHY I SHOULD BE DENIED COSTS OF MEALS DURING THE ALLOWABLE 30 DAY PERIOD AS ALL MEALS WERE PARTAKEN IN RESTAURANTS."

YOUR STATEMENT OF AUGUST 19, 1970, AS TO THE ARRANGEMENTS WITH THE BUILDER IS AT VARIANCE WITH YOUR EXPLANATION OF THE ARRANGEMENTS SET FORTH IN YOUR LETTER OF SEPTEMBER 20, 1972. IT NOW APPEARS THAT DURING THE PERIOD OF YOUR CLAIM AND WHILE OCCUPYING THE HOUSE, WHICH YOU SUBSEQUENTLY PURCHASED, NEGOTIATIONS WERE UNDER WAY FOR PURCHASE.

SECTION 2.5B(3) OF OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A- 56, REVISED JUNE 26, 1969, STATES:

"(3) TEMPORARY QUARTERS REFERS TO LODGING OBTAINED TEMPORARILY BY THE EMPLOYEE AND/OR MEMBERS OF HIS IMMEDIATE FAMILY WHO HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED."

UNDER THE ABOVE-CITED SECTION OF THE OMB CIRCULAR, WE HAVE CONSISTENTLY HELD THAT AN EMPLOYEE MAY NOT BE REIMBURSED TEMPORARY QUARTERS AND SUBSISTENCE EXPENSES AFTER HE OCCUPIES THE RESIDENCE IN WHICH HE INTENDS TO REMAIN REGARDLESS OF THE FACT WHETHER HE HAS OR HAS NOT CONSUMMATED THE PURCHASE OF THE PROPERTY AT THE TIME OF ENTRANCE THEREON. WE HAVE NEVERTHELESS MADE EXCEPTIONS TO THIS POLICY WHERE THERE IS EVIDENCE IN THE RECORD THAT THE EMPLOYEE HAD REASONABLY DEMONSTRATED HIS INTENT TO USE THE QUARTERS ON ONLY A TEMPORARY BASIS. WHILE YOU SAY THAT YOU WERE ATTEMPTING TO LOCATE OTHER QUARTERS DURING THE 3 MONTHS FOR WHICH YOU SUBSEQUENTLY PAID "RENT" AT 3758 NOTRE DAME AVENUE IN SAN DIEGO, YOU ALSO STATED THAT DURING THE SAME PERIOD YOU WERE NEGOTIATING FOR A LOAN TO COMPLETE THE PURCHASE.

IT IS CONCLUDED FROM THE FOREGOING THAT THE RECORD FAILS TO ESTABLISH THAT YOU DID NOT INTEND TO STAY IN THE HOUSE IN QUESTION ON A PERMANENT BASIS. IN SUCH LIGHT, AND ON THE BASIS OF THE PRESENT RECORD, WE MUST AFFIRM THE ACTION OF OUR TRANSPORTATION AND CLAIMS DIVISION DENYING THE REIMBURSEMENT OF SUCH EXPENSES.

WITH RESPECT TO THE APARTMENT YOU RENTED, YOU HAVE FURNISHED COPIES OF THREE RECEIPTS FOR MONTHLY PAYMENT OF RENT WHICH YOU SAY ARE FOR THE RENTING OF AN APARTMENT INCIDENT TO YOUR MOVE TO SAN DIEGO. THE THREE RECEIPTS ARE FOR RENT FOR THE PERIOD JANUARY 11, 1970, THROUGH MARCH 31, 1970, AT $165 PER MONTH. IT IS NOTED THAT THE PERIOD INVOLVED BEGAN PRIOR TO YOUR MOVE TO YOUR NEW DUTY STATION AND OCCUPANCY OF QUARTERS THERE. YOU DO NOT SAY WHETHER THIS APARTMENT IS AT SAN DIEGO OR SOME OTHER PLACE. IN VIEW OF THE CIRCUMSTANCES OF YOUR OCCUPANCY OF THE RESIDENCE IN SAN DIEGO ON FEBRUARY 21, 1970, THERE IS NO BASIS FOR CONSIDERATION OF SUCH APARTMENT FOR THE PURPOSE OF TEMPORARY QUARTERS ALLOWANCE ON OR AFTER THAT DATE. SECTION 2.5B(6) OF CIRCULAR NO. A-56 PROVIDES IN PART THAT THE PERIOD FOR ELIGIBILITY WILL TERMINATE WHEN THE EMPLOYEE OR ANY MEMBER OF HIS IMMEDIATE FAMILY OCCUPIES PERMANENT TYPE RESIDENCE QUARTERS. SEE B- 174945, APRIL 13, 1972, COPY ENCLOSED. HOWEVER, IT APPEARS THAT YOU WOULD BE ENTITLED TO AN ALLOWANCE FOR NOT TO EXCEED 30 DAYS WITHIN THE PERIOD JANUARY 10 TO FEBRUARY 21 INCIDENT TO THE OCCUPANCY OF THE FURNISHED APARTMENT. THE PRESENT RECORD DOES NOT CONTAIN SUFFICIENT EVIDENCE FOR OUR DETERMINATION OF AN AMOUNT WHICH MIGHT BE DUE. IT IS SUGGESTED THAT YOU PREPARE A VOUCHER BASED UPON OCCUPANCY OF THE APARTMENT AND PRESENT IT TO YOUR ADMINISTRATIVE OFFICE FOR CONSIDERATION.