B-190981, APR 6, 1978

B-190981, APR 6, 1978

EMPLOYEE, WHO WAS TRANSFERRED FROM WASHINGTON, D.C., TO ALBANY, GEORGIA, CLAIMS EXPENSES INCURRED IN SALE OF FAMILY RESIDENCE LOCATED IN ALABAMA. EMPLOYEE MAY NOT BE REIMBURSED SINCE UNDER FEDERAL TRAVEL REGULATIONS RESIDENCE MUST BE THE ONE FROM WHICH EMPLOYEE COMMUTES REGULARLY TO AND FROM WORK. FURTHERMORE, GOVERNMENT IS NOT BOUND BY UNAUTHORIZED OR INCORRECT STATEMENTS OF ITS AGENTS OR EMPLOYEES.

JUDSON W. HAND - CLAIM FOR REAL ESTATE EXPENSES:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM O. J. TOLAND, A DISBURSING OFFICER AT THE MARINE CORPS LOGISTICS SUPPORT BASE, ATLANTIC, U.S. MARINE CORPS, REFERENCE A430:OJT:SRT 4650, CONCERNING THE CLAIM OF MR. JUDSON W. HAND, SR., AND EMPLOYEE OF THE U.S. MARINE CORPS, FOR REIMBURSEMENT OF REAL ESTATE EXPENSES INCURRED PURSUANT TO A CHANGE OF OFFICIAL DUTY STATION. THE REQUEST FOR AN ADVANCE DECISION INCLUDING THE VOUCHER CLAIMING REIMBURSEMENT WAS FORWARDED TO THIS OFFICE BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE AND WAS ASSIGNED PDTATAC CONTROL NO. 77-38.

MR. HAND STATES IN A LETTER DATED NOVEMBER 7, 1977, THAT HE ACCEPTED A POSITION WITH THE NAVAL PERSONNEL PROGRAM SUPPORT ACTIVITY IN WASHINGTON, D.C., AND THAT SINCE HE WAS ADVISED THIS ACTIVITY WOULD BE MOVING TO NEW ORLEANS, LOUISIANA, HE DECIDED NOT TO MOVE HIS FAMILY FROM THEIR RESIDENCE IN WETUMPKA, ALABAMA, TO WASHINGTON. WHEN HE LEARNED THAT THE NAVAL ACTIVITY WOULD NOT BE MOVING TO NEW ORLEANS, MR. HAND STATES HE OBTAINED A POSITION WITH THE MARINE CORPS LOGISTICS SUPPORT BASE, ATLANTIC, IN ALBANY, GEORGIA, AND WAS TRANSFERRED EFFECTIVE APRIL 29, 1976. MR. HAND STATES FURTHER THAT HE WAS ADVISED BY THE MARINE CORPS CIVILIAN PERSONNEL OFFICE IN ALBANY, GEORGIA, THAT HE WOULD BE ENTITLED TO REIMBURSEMENT FOR REAL ESTATE EXPENSES INCURRED IN THE SALE OF HIS RESIDENCE IN WETUMPKA, ALABAMA, WHERE HIS FAMILY RESIDED HOWEVER, THE AGENCY QUESTIONS WHETHER MR. HAND MAY BE REIMBURSED FOR THE SALE OF A DWELLING WHICH WAS NOT HIS ACTUAL RESIDENCE AT THE TIME OF HIS TRANSFER. WAS IN VIETNAM.

THEREFORE, IT IS OUR VIEW THAT SINCE THE EMPLOYEE'S WIFE SHOULD HAVE KNOWN AND INFORMED HIM, COUPLED WITH HIS ENJOYMENT OF THE FAMILY BENEFIT DERIVED, THE BASIS UPON WHICH MR. NISHIKAWA SEEKS WAIVER IS INSUFFICIENT TO OVERCOME THE CONCEDE OF FAULT AS USED IN 5 U.S.C. 5584(B)(1) AND THE ACTION PREVIOUSLY TAKEN DENYING WAIVER IN THE CASE IS SUSTAINED.

AS TO THE MATTER OF MR. NISHIKAWA'S CONTENTION THAT THE AMOUNT WHICH HE WOULD BE REQUIRED TO REFUND SHOULD BE REDUCED TO THE NET AMOUNT RECEIVED, IT IS CLEAR THAT THE TOTAL AMOUNT OF THE LUMP-SUM LEAVE PAYMENT ERRONEOUSLY MADE WAS $5,297.85. FOR PURPOSES OF THE INTERNAL REVENUE CODE, SUCH AMOUNTS CONSTITUTED INCOME IN THE YEARS THEY WERE RECEIVED. SEE 26 U.S.C. 61 (1970). UNDER FORMULAS CONTAINED IN OTHER PROVISIONS OF THE INTERNAL REVENUE CODE, CERTAIN PORTIONS OF WAGES MUST BE WITHHELD BY THE EMPLOYER FOR APPLICATION AGAINST THE FEDERAL TAXES REQUIRED TO BE PAID BY THE EMPLOYEE ON EARNED INCOME. WHILE AN EMPLOYEE MAY NOT RECEIVE ALL MONIES NORMALLY EARNED, SUCH WITHHOLDING FOR FEDERAL INCOME TAX PURPOSES DOES NOT ALTER THE AMOUNT OF AN INDEBTEDNESS. SINCE THE MATTER OF AN INDIVIDUAL'S INCOME TAX LIABILITY IS UNDER THE JURISDICTION OF THE INTERNAL REVENUE SERVICE, THE EMPLOYEE SHOULD DISCUSS THE MATTER WITH THE IRS OFFICE WHICH SERVICES THE AREA IN WHICH HE RESIDES.

WITH REGARD TO THE EMPLOYEE'S LEAVE-WITHOUT-PAY STATUS, THE RECORD IN THE CASE SHOWS THAT HE WAS SCHEDULED TO LEAVE VIETNAM ON AUGUST 21, 1972, AND TRAVEL TO HONOLULU, HAWAII. FOR PURPOSES OF THAT TRAVEL HE WAS AUTHORIZED 10 DAYS ANNUAL LEAVE AT THAT LATTER LOCATION PRIOR TO REPORTING TO HIS NEW DUTY ASSIGNMENT IN HAWAII. ON AUGUST 10, 1972, APPARENTLY FOR PERSONAL REASONS, HE REQUESTED AND RECEIVED PERMISSION TO DELAY HIS DEPARTURE FROM VIETNAM ON AUGUST 21, 1972, TO SEPTEMBER 18, 1972, AND WAS PROVIDED A REPORTING DATE AT HIS NEW ASSIGNMENT OF SEPTEMBER 25, 1972.

THE FILE INDICATES THAT MR. NISHIKAWA REQUESTED ANNUAL LEAVE FOR THE PERIOD AUGUST 22 THROUGH SEPTEMBER 17, 1972. HOWEVER, IN SPITE OF THE FACT THAT HE HAD MORE THAN AMPLE ANNUAL LEAVE ACCRUED HE WAS PLACED IN A LEAVE-WITHOUT-PAY STATUS FOR THAT TIME.

UNDER THE CIRCUMSTANCES AND SINCE THE RECORD SHOWS THAT MR. NISHIKAWA'S ACCRUED UNUSED ANNUAL LEAVE ACCOUNT EFFECTIVE AUGUST 21, 1972, WAS MORE THAN ADEQUATE FOR THAT PURPOSE, WE WOULD HAVE NO OBJECTION TO MR. NISHIKAWA BEING PLACED IN AN ANNUAL LEAVE STATUS FOR THE PERIOD AUGUST 22 THROUGH SEPTEMBER 17, 1972, AND BE PERMITTED TO REDUCE HIS INDEBTEDNESS BY AN AMOUNT EQUAL TO THE VALUE OF THE LEAVE ACTUALLY TAKEN OR HIS THEN RATE OF PAY, WITH THE LEAVE TAKEN TO BE CHARGED AGAINST HIS OTHERWISE PROPER LEAVE BALANCE.