B-182840, FEB 18, 1975

B-182840, FEB 18, 1975

ALTHOUGH EMPLOYEE EXECUTED AGREEMENT TO SELL HIS RESIDENCE PRIOR TO DEFINITE NOTICE OF TRANSFER, HE MAY BE REIMBURSED EXPENSES INCIDENT TO SALE SINCE SALE WAS CONCLUDED AFTER TRANSFER. FEDERAL TRAVEL REGULATIONS (FPMR) PARA. 2-6.1D (1973) REQUIRES ONLY THAT RESIDENCE FOR WHICH REIMBURSEMENT OF SALE EXPENSES IS CLAIMED BE EMPLOYEE'S RESIDENCE AT TIME HE IS NOTIFIED, AND FTR PARA. 2-1.5B (MAY 1973), REQUIRING DETERMINATION EXPENSE WAS INCURRED INCIDENT TO RELOCATION, IS NOT APPLICABLE, OLD AND NEW STATIONS NOT BEING IN SAME METROPOLITAN AREA.

JAMES A. COLYER - TRANSFERS - RELOCATION EXPENSES - HOUSE SALE:

THIS ACTION IS MADE PURSUANT TO A LETTER OF DECEMBER 10, 1974, FROM AN AUTHORIZED CERTIFYING OFFICER OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, REQUESTING A DETERMINATION WHETHER THE CLAIM VOUCHER OF JAMES A. COLYER, AN EMPLOYEE OF THE CORPS, MAY BE CERTIFIED FOR PAYMENT. MR. COLYER CLAIMS REIMBURSEMENT OF EXPENSES INCURRED IN CONNECTION WITH THE SALE OF HIS RESIDENCE ON OCTOBER 1974 UNDER THE CIRCUMSTANCES STATED BELOW.

THE RECORD INDICATES THAT MR. COLYER WAS EMPLOYED WITH THE UNITED STATES ARMY CORPS OF ENGINEERS IN CINCINNATI, OHIO, WHEN HE WAS NOTIFIED IN AUGUST 1974 THAT A 77 PERCENT JOB CUTBACK IN HIS SECTION WAS IMMINENT. FEARING THAT HIS JOB WOULD BE AMONG THOSE AFFECTED, MR. COLYER SOUGHT A NEW POSITION WITHIN THE DIVISION AND ULTIMATELY OBTAINED A TRANSFER TO THE LOUISVILLE DISTRICT OFFICE. MR. COLYER EXECUTED A TRANSPORTATION AGREEMENT ON OCTOBER 18, 1974, AND CONCLUDED A SALE OF HIS HOUSE ON OCTOBER 24, 1974. HE NOW SEEKS REIMBURSEMENT FOR EXPENSES INCURRED INCIDENT TO THE SALE. THE RECORD ALSO INDICATES THAT MR. COLYER SIGNED AN AGREEMENT TO SELL HIS HOUSE IN APRIL 1974. OUR DECISION WAS REQUESTED SINCE, WHILE THE SALE WAS CLOSED AFTER THE TRANSFER, THE SALE MAY NOT HAVE BEEN MOTIVATED ENTIRELY BY THE TRANSFER SINCE THE CONTRACT TO SELL WAS SIGNED PRIOR TO THE TRANSFER.

REGARDING REIMBURSEMENT OF EXPENSES INCURRED IN THE SALE OF A RESIDENCE, 5 U.S.C. 5724AA)(4) (1970) PROVIDES IN 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, ITS TERRITORIES OR POSSESSIONS, THE COMMONWEALTH OF PUERTO RICO, OR THE CANAL ZONE. ***"

THE PRESIDENT'S POWER TO PROMULGATE REGULATIONS UNDER SECTION 5724 HAS BEEN DELEGATED TO THE ADMINISTRATOR OF GENERAL SERVICES ADMINISTRATION. FEDERAL TRAVEL REGULATIONS (FPMR 101-7), PARA. 2-6.1 (MAY 1973), STATES IN PART THE FOLLOWING:

"2-6.1. CONDITIONS AND REQUIREMENTS UNDER WHICH ALLOWANCES ARE PAYABLE. TO THE EXTENT ALLOWABLE UNDER THIS PROVISION, THE GOVERNMENT SHALL REIMBURSE AN EMPLOYEE FOR EXPENSES REQUIRED TO BE PAID BY HIM IN CONNECTION WITH THE SALE OF ONE RESIDENCE AT HIS OLD OFFICIAL STATION, FOR PURCHASE (INCLUDING CONSTRUCTION) OF ONE DWELLING AT HIS NEW OFFICIAL STATION, OR FOR THE SETTLEMENT OF AN UNEXPIRED LEASE INVOLVING HIS RESIDENCE OR A LOT ON WHICH A MOBILE HOME USED AS HIS RESIDENCE WAS LOCATED AT THE OLD OFFICIAL STATION; PROVIDED, THAT:

"D. OCCUPANCY REQUIREMENTS. THE DWELLING FOR WHICH REIMBURSEMENT OF SELLING EXPENSES IS CLAIMED WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY OF HIS TRANSFER TO THE NEW OFFICIAL STATION."

THERE IS NO DISPUTE ABOUT THE FACT THAT MR. COLYER WAS THE OWNER OF HIS RESIDENCE AT THE TIME HE RECEIVED OFFICIAL NOTICE OF HIS TRANSFER.

WE HAVE BEEN ASKED TO DETERMINE WHAT EFFECT THE SALES AGREEMENT EXECUTED PRIOR TO NOTICE OF TRANSFER SHOULD HAVE ON MR. COLYER'S RIGHT TO REIMBURSEMENT. THAT DOCUMENT INDICATES THAT THE SALE OF MR. COLYER'S HOME MAY NOT HAVE BEEN MOTIVATED BY HIS JOB TRANSFER. PARAGRAPH 2-6.1D OF THE REGULATIONS CITED ABOVE STATES THAT REIMBURSEMENT MAY BE MADE IF THE DWELLING SOLD WAS THE EMPLOYEE'S RESIDENCE AT THE TIME HE WAS FIRST DEFINITELY INFORMED BY COMPETENT AUTHORITY OF HIS TRANSFER TO THE NEW STATION. THE SALES AGREEMENT EXECUTED IN APRIL 1974 WOULD DISQUALIFY MR. COLYER ONLY IF "RESIDENCE" AS USED IN THIS PARAGRAPH REQUIRED AN INTENTION TO REMAIN AT THE DWELLING FOR WHICH REIMBURSEMENT IS SOUGHT. THERE IS NOTHING IN FTR PARA. 2-6.1D (MAY 1973) THAT STATES THAT THE MOTIVE IN SELLING AN EMPLOYEE'S RESIDENCE IS A FACTOR IN DETERMINING HIS ENTITLEMENT TO REIMBURSEMENT OF SELLING EXPENSES. WE NOTE THAT A DETERMINATION THAT AN EMPLOYEE'S RELOCATION WAS RELATED TO HIS TRANSFER WOULD BE REQUIRED BY FTR PARA. 2-1.5B (MAY 1973) WHEN THE CHANGE OF OFFICIAL STATION INVOLVES A SHORT DISTANCE WITHIN THE SAME GENERAL OR METROPOLITAN AREA. SINCE CINCINNATI AND LOUISVILLE ARE NOT IN THE SAME METROPOLITAN AREA, THIS PROVISION WOULD NOT BE APPLICABLE. WE ARE UNAWARE OF ANY OTHER PROVISIONS IN THE REGULATIONS THAT WOULD REQUIRE A DETERMINATION AS TO THE INTENTION REGARDING THE SALE OF AN EMPLOYEE'S RESIDENCE WHEN HE IS TRANSFERRED. THEREFORE, WE DO NOT BELIEVE THAT MR. COLYER'S MOTIVE IN SELLING HIS HOUSE IS A FACTOR IN DETERMINING HIS ENTITLEMENT TO REIMBURSEMENT OF THE EXPENSES CLAIMED.

ACCORDINGLY, SINCE MR. COLYER HAS SATISFIED THE OCCUPANCY REQUIREMENTS OF PARAGRAPH 2-6.1D OF THE FTR, SUPRA, HIS CLAIM VOUCHER MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE PROPER.