B-178658, OCT 24, 1974

B-178658, OCT 24, 1974

1. EMPLOYEE WHO, INCIDENT TO PERMANENT CHANGE OF STATION FROM WASHINGTON, D.C., TO MIAMI, FLORIDA, MOVED INTO CONTRACTED-FOR HOUSE IN MIAMI BEFORE CLOSING DATE AND PAID $14 RENT PER DAY UNTIL CLOSING IS NOT ENTITLED TO TEMPORARY QUARTERS ALLOWANCE PURSUANT TO OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56 SINCE DETERMINATION OF TYPE (TEMPORARY OR PERMANENT) OF RESIDENCE OCCUPIED IS BASED ON INTENT OF EMPLOYEE AT TIME HE MOVES INTO QUARTERS AND INTENT WAS CLEARLY TO MAKE HOUSE PERMANENT RESIDENCE. 2. OWNERSHIP OF PERMANENT QUARTERS AT OLD DUTY STATION, PAYING OF RENT FOR RESIDENCE OR PRESENCE OR ABSENCE OF HOUSEHOLD GOODS IN A RESIDENCE ARE IMMATERIAL IN DETERMINATION OF NATURE OF QUARTERS.

FREDERICK I. UNTIEDT-RENTAL OF PERMANENT HOME:

MR. FREDERICK I. UNTIEDT, A CIVILIAN EMPLOYEE OF THE CIVIL AERONAUTICS BOARD, MIAMI, FLORIDA, HAS REQUESTED RECONSIDERATION OF OUR DECISION B- 178658, AUGUST 22, 1973, WHICH DISALLOWED HIS CLAIM FOR REIMBURSEMENT OF TEMPORARY QUARTERS EXPENSES INCURRED INCIDENT TO A TRANSFER OF DUTY STATION. THAT DECISION INDICATES MR. UNTIEDT WAS TRANSFERRED FROM WASHINGTON, D.C., TO MIAMI, FLORIDA, EFFECTIVE NOVEMBER 14, 1972. OCTOBER 22, 1972, MR. UNTIEDT HAD CONTRACTED TO PURCHASE A RESIDENCE IN MIAMI. HE MOVED INTO THE RESIDENCE UPON HIS ARRIVAL ON NOVEMBER 14, 1972, UNDER AN AGREEMENT TO PAY A RENTAL FEE OF $14 PER DAY UNTIL CLOSING AND TRANSFER OF TITLE WHICH OCCURRED ON DECEMBER 11, 1972.

IT WAS STATED IN THE DECISION OF AUGUST 22, 1973, AS FOLLOWS:

"MR. UNTIEDT'S ORIGINAL CLAIM FOR REIMBURSEMENT OF VARIOUS EXPENSES INCIDENT TO HIS TRANSFER INCLUDED A CLAIM FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS IN THE AMOUNT OF $567.74 BASED ON THE COSTS HE INCURRED WHILE OCCUPYING HIS NEW RESIDENCE FOR THE PERIOD NOVEMBER 14 THROUGH DECEMBER 10. THAT PART OF HIS ORIGINAL CLAIM WAS DISALLOWED ON THE BASIS OF OUR DECISION B-160904, DATED MARCH 7, 1967. THAT DECISION INVOLVED AN EMPLOYEE WHO MOVED WITH HIS FAMILY INTO THEIR NEW RESIDENCE THE DAY AFTER THEIR ARRIVAL AT THE NEW OFFICIAL STATION UNDER AN AGREEMENT TO PAY RENT UNTIL FINAL PURCHASE ARRANGEMENTS WERE CONSUMMATED. THE EMPLOYEE CLAIMED THE FIRST 30 DAYS RENTAL PAYMENT AS AN ALLOWANCE FOR TEMPORARY QUARTERS UNDER SECTION 2.5 OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, OCTOBER 12, 1966, SINCE FINAL SETTLEMENT WAS NOT HELD UNTIL ONE MONTH AFTER OCCUPANCY BEGAN. WE DENIED THE EMPLOYEE'S CLAIM ON THE GROUND THAT THE QUARTERS HE AND HIS FAMILY WERE OCCUPYING DURING THE SUBJECT PERIOD WAS THEIR PERMANENT RESIDENCE AND CONSEQUENTLY THE CLAIMED RENT COULD NOT BE CONSIDERED AS RENTAL OF TEMPORARY QUARTERS WITHIN THE MEANING OF SECTION 2.5 OF THE ABOVE CIRCULAR.

"MR. UNTIEDT CONTENDS THAT THE FACTS IN HIS CASE MAY BE DISTINGUISHED FROM THOSE INVOLVED IN THE DECISION B-160904. IN SUPPORT OF THAT CONTENTION HE POINTS OUT, AMONG OTHER THINGS, THAT HE WAS TOLD THAT HE POINTS OUT, AMONG OTHER THINGS, THAT HE WAS TOLD THAT HE COULD NOT BE ASSIGNED TO MIAMI ON TEMPORARY DUTY BUT WOULD BE ELIGIBLE FOR REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES, THAT DURING THE PERIOD HE WAS PAYING RENT FOR HIS RESIDENCE IN MIAMI HE WAS ALSO RESPONSIBLE FOR MORTGAGE PAYMENTS ON HIS RESIDENCE AT HIS OLD DUTY STATION UNTIL ITS CLOSING DATE ON NOVEMBER 29, 1972, THAT HIS FAMILY DID NOT ARRIVE IN MIAMI UNTIL DECEMBER 2, 1972, THAT HIS HOUSEHOLD EFFECTS DID NOT ARRIVE UNTIL DECEMBER 8, 1972, AND THAT, HAD THE CONTRACT TO PURCHASE HIS NEW RESIDENCE FALLEN THROUGH FOR SOME REASON, HE WOULD HAVE HAD TO RELOCATE HIMSELF AND FAMILY AND THE QUARTERS WOULD HAVE BEEN TEMPORARY.

"THE PROVISIONS OF 5 U.S.C. 5724AA)(3) UNDER WHICH THE ALLOWANCE IN QUESTION IS PAID WERE IMPLEMENTED BY OFFICIE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED, AUGUST 17, 1971, IN FORCE AT THE TIME IN QUESTION. SECTION 8.2C OF THAT CIRCULAR STATES:

'TEMPORARY QUARTERS REFERS TO ANY LODGING OBTAINED FROM PRIVATE OR COMMERCIAL SOURCES TO BE OCCUPIED 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.'

"WE HAVE CONSISTENTLY HELD THAT THE DETERMINATION OF THE TYPE OF RESIDENCE OCCUPIED, I.E., TEMPORARY OR PERMANENT, IS BASED ON THE INTENT OF THE EMPLOYEE AT THE TIME HE OR A MEMBER OF HIS FAMILY MOVES INTO THE QUARTERS WHICH LATER BECOMES HIS PERMANENT RESIDENCE. SEE B 177546, FEBRUARY 8, 1973; B-174971, FEBRUARY 28, 1972 ***.

"NOTWITHSTANDING THE SEVERAL FACTS THAT MR. UNTIEDT HAS SUBMITTED TO SUPPORT HIS CONTENTION THAT HIS MIAMI RESIDENCE SHOULD BE CONSIDERED TO HAVE BEEN TEMPORARY QUARTERS FOR THE PERIOD INVOLVED, IT IS CLEAR THAT WHEN HE MOVED INTO THE HOUSE ON NOVEMBER 14, 1972, HE HAD ENTERED INTO A CONTRACT TO PURCHASE THE HOUSE AND THAT IT WAS HIS INTENTION TO MAKE THE DWELLING THE PERMANENT RESIDENCE OF BOTH HE AND HIS FAMILY. SEE B 169962, JULY 2, 1970 ***.

"CONCERNING THE FACTS WHICH MR. UNTIEDT CONSIDERS DISTINGUISH HIS CASE FROM THE CITED DECISION B-160904 WE POINT OUT THAT THE OWNERSHIP OF PERMANENT QUARTERS AT THE OLD DUTY STATION MY NOT BE REGARDED AS ESTABLISHING THAT RENTAL QUARTERS AT THE NEW STATION ARE TEMPORARY. SEE B -162510, OCTOBER 10, 1967 ***. IN ADDITION, THE PAYING OF RENT FOR A RESIDENCE, OR THE PRESENCE OR ABSENCE OF AN AMPLOYEE'S HOUSEHOLD GOODS IN A RESIDENCE, IS IMMATERIAL TO THE DETERMINATION OF WHETHER QUARTERS OCCUPIED ARE A TEMPORARY RESIDENCE. SEE B-177546, SUPRA; B 169923, AUGUST 14, 1970 ***.

"ACCORDINGLY, UNDER THE RULES ESTABLISHED IN DECISIONS OF THIS OFFICE, WE FIND NO BASIS IN THE FACTS GIVEN BY MR. UNTIEDT TO DISTINGUISH HIS CASE FROM THOSE IN WHICH REIMBURSEMENT OF TEMPORARY QUARTERS SUBSISTENCE EXPENSES WERE DISALLOWED AND *** MAY NOT BE CERTIFIED FOR PAYMENT."

IN HIS REQUEST FOR RECONSIDERATION OF THE DECISION ON AUGUST 22, 1973, MR. UNTIEDT STATES THAT HIS CLAIM WAS ADMINISTRATIVELY DENIED INITIALLY BASED ON OUR DECISION B-160904, MARCH 7, 1967, AND THAT THE FOLLOWING EXCERPT THEREFROM WAS THE LEGAL JUSTIFICATION FOR DENYING THE CLAIM:

"EMPLOYEE WHO CONTRACTED FOR PURCHASE OF RESIDENCE AT NEW OFFICIAL STATION AND MOVED FAMILY INTO THE RESIDENCE UNDER A RENTAL AGREEMENT UNTIL PURCHASE ARRANGEMENTS WERE CONSUMMATED MAY NOT HAVE THE FACT THAT HE WAS PAYING RENT AFFECT THE STATUS OF THE QUARTERS AS PERMANENT RATHER THAN TEMPORARY. THEREFORE, EMPLOYEE'S CLAIM FOR SUBSISTANCE FOR OCCUPANCY OF TEMPORARY QUARTERS MUST BE DENIED."

MR. UNTIEDT POINTS OUT THAT THE STATEMENT AS QUOTED ABOVE IS NOT FOUND IN B-160904. THE ADMINISTRATIVE AGENCY INFORMALLY ADVISES THAT THE STATEMENT WAS A PARAPHRASE OF THE HOLDING IN THE DECISION. ON REVIEW WE FIND NO SUBSTANTIVE DIFFERENCE IN THE STATEMENT AS QUOTED AND THE DISCUSSION OF B- 160904 AS SET FORTH IN B-178658 QUOTED ABOVE.

MR. UNTIEDT STATES THAT THE APPLICABLE AGENCY MANUAL REFERS TO SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS BUT DOES NOT DEFINE OR SET GUIDELINES AS TO WHAT CONSTITUTES TEMPORARY QUARTERS. FURTHER, HE URGES THAT SECTION 8.2C OF CIRCULAR A-56, REVISED, AUGUST 17, 1971, INDICATES THAT TEMPORARY QUARTERS CAN ONLY BEGIN AFTER THE EMPLOYEE AND/OR MEMBER OF HIS IMMEDIATE FAMILY HAVE VACATED THE RESIDENCE QUARTERS IN WHICH THEY WERE RESIDING AT THE TIME THE TRANSFER WAS AUTHORIZED AND THEREFORE THE EARLIEST DATE THE TEMPORARY QUARTERS COULD BEGIN WOULD BE NOVEMBER 29, 1972, RATHER THAN NOVEMBER 14, 1972, SINCE HE DID NOT VACATE THE RESIDENCE AT THE OLD DUTY STATION UNTIL THEN.

MR. UNTIEDT STATES THAT HIS ULTIMATE INTENT WAS TO MAKE MIAMI HIS PERMANENT RESIDENCE BUT FEELS THAT BY OCCUPYING THE RESIDENCE AT HIS OLD DUTY STATION FOR FIVE DAYS BETWEEN NOVEMBER 14, 1972 AND DECEMBER 11, 1972, THAT RESIDENCE RETAINED ITS PERMANENT STATUS. HOWEVER, AS STATED IN OUR PREVIOUS DECISION, THIS FACT IS IMMATERIAL IN ESTABLISHING WHETHER THE NEW QUARTERS OCCUPIED WERE TEMPORARY OR PERMANENT, WHICH DEPENDS ON THE EMPLOYEE'S INTENT.

WE HAVE REVIEWED CAREFULLY THE RECORD AND MR. UNTIEDT'S REQUEST FOR RECONSIDERATION AND CAN FIND NO BASIS TO CONCLUDE THAT IT WAS NOT HIS INTENTION TO MAKE THE DWELLING THE PERMANENT RESIDENCE FOR HIMSELF AND HIS FAMILY EVEN THOUGH IT WAS NECESSARY TO PAY RENT FOR A PERIOD OF TIME PRIOR TO CLOSING, SINCE HE HAD CONTRACTED TO PURCHASE THE HOUSE PRIOR TO HIS MOVING INTO IT BEFORE REPORTING FOR DUTY ON NOVEMBER 14, 1973. THUS, THERE IS NO QUESTION THAT MR. UNTIEDT WAS OCCUPYING A PERMANENT RESIDENCE ON THE DATES IN QUESTION. ACCORDINGLY, WE SUSTAIN THE DECISION DISALLOWING HIS CLAIM.