B-203371, FEB 9, 1982
Highlights
PAYMENT OF THE CLAIM IS NOT AUTHORIZED SINCE AN EMPLOYEE MUST ACTUALLY REPORT FOR DUTY AT THE NEW DUTY STATION BEFORE IT IS REGARDED AS A PERMANENT DUTY STATION SO AS TO ENTITLE THE EMPLOYEE TO PER DIEM AT THE FORMER DUTY STATION. WAS TRANSFERRED FROM DALLAS. THE SUBSISTENCE EXPENSES CLAIMED WERE DISALLOWED BASED UPON A DETERMINATION THAT THE EMPLOYEE DID NOT PHYSICALLY CHANGE POSTS OF DUTY AND COULD NOT BE PAID PER DIEM OR ACTUAL SUBSISTENCE EXPENSES WHILE AT DALLAS. THAT SHE DID NOT HAVE THE OPPORTUNITY TO REPORT TO HER NEW POST OF DUTY BECAUSE ATTENDANCE AT THE TRAINING CLASSES WAS MANDATORY. THAT HER OFFICIAL STATION WAS NOT DALLAS. SHERMAN'S HOUSEHOLD GOODS WERE PACKED AND PICKED UP IN DALLAS ON FEBRUARY 28.
B-203371, FEB 9, 1982
DIGEST: TRANSFERRED EMPLOYEE REQUIRED TO ATTEND TRAINING CLASSES AT OLD DUTY STATIONN BEFORE REPORTING TO NEW STATION CLAIMS ACTUAL SUBSISTENCE EXPENSES FOR PERIOD OF TRAINING DURING WHICH SHE REMAINED IN FORMER RESIDENCE AT OLD STATION. CLAIM MAY NOT BE ALLOWED AS PARAS. 1-7.6 AND 2-1.4 OF FTR, WHEN CONSTRUED TOGETHER, CONSTITUTE REQUIREMENT THAT EMPLOYEE MUST ACTUALLY REPORT TO NEW DUTY STATION BEFORE IT CAN BE REGARDED AS HIS NEW DUTY STATION SO AS TO ENTITLE EMPLOYEE TO PER DIEM AT FORMER DUTY STATION.
WANDA A. SHERMAN - TRANSFER - EXPENSES AT OLD DUTY STATION:
MS. ELIZABETH A. ALLEN, CERTIFYING OFFICER, INTERNAL REVENUE SERVICE, REQUESTS OUR DECISION ON WHETHER ACTUAL SUBSISTENCE EXPENSES MAY BE PAID TO A TRANSFERRED EMPLOYEE WHO OCCUPIED HER RESIDENCE AT THE OLD DUTY STATION DURING A PERIOD OF TRAINING PRIOR TO REPORTING TO THE NEW DUTY STATION.
PAYMENT OF THE CLAIM IS NOT AUTHORIZED SINCE AN EMPLOYEE MUST ACTUALLY REPORT FOR DUTY AT THE NEW DUTY STATION BEFORE IT IS REGARDED AS A PERMANENT DUTY STATION SO AS TO ENTITLE THE EMPLOYEE TO PER DIEM AT THE FORMER DUTY STATION.
MS. WANDA A. SHERMAN, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, WAS TRANSFERRED FROM DALLAS, TEXAS, TO LITTLE ROCK, ARKANSAS, BY TRAVEL AUTHORIZATION SPECIFYING A REPORTING DATE OF JANUARY 27, 1980. SHE DID NOT REPORT TO LITTLE ROCK ON JANUARY 27TH, BUT REMAINED IN HER APARTMENT IN DALLAS DURING THE PERIOD FROM JANUARY 28, 1980, THROUGH FEBRUARY 29, 1980, WHILE ATTENDING TRAINING AT HER OLD DUTY STATION.
MS. SHERMAN SUBMITTED VOUCHERS CLAIMING ACTUAL SUBSISTENCE EXPENSES FOR THE PERIOD SHE ATTENDED THE TRAINING. THE SUBSISTENCE EXPENSES CLAIMED WERE DISALLOWED BASED UPON A DETERMINATION THAT THE EMPLOYEE DID NOT PHYSICALLY CHANGE POSTS OF DUTY AND COULD NOT BE PAID PER DIEM OR ACTUAL SUBSISTENCE EXPENSES WHILE AT DALLAS, HER THEN PERMANENT DUTY STATION.
IN SUPPORT OF HER RECLAIM FOR THE DISALLOWED SUBSISTENCE EXPENSES, MS. SHERMAN CONTENDS THAT AFTER BEING NOTIFIED OF THE CHANGE IN POSITION, SHE MADE SEVERAL WEEKEND TRIPS TO ARKANSAS TO LOCATE HOUSING WHICH SHE FOUND ON OR ABOUT FEBRUARY 24, 1980, THAT SHE DID NOT HAVE THE OPPORTUNITY TO REPORT TO HER NEW POST OF DUTY BECAUSE ATTENDANCE AT THE TRAINING CLASSES WAS MANDATORY, AND THAT HER OFFICIAL STATION WAS NOT DALLAS, TEXAS, BUT LITTLE ROCK, ARKANSAS.
THE CERTIFYING OFFICER NOTES THAT MS. SHERMAN'S HOUSEHOLD GOODS WERE PACKED AND PICKED UP IN DALLAS ON FEBRUARY 28, 1980, AND THAT IT APPEARS SHE DID NOT REPORT FOR DUTY IN LITTLE ROCK UNTIL AFTER THAT DATE AS SHE CLAIMS TO HAVE INCURRED ACTUAL SUBSISTENCE EXPENSES IN DALLAS FROM JANUARY 28 THROUGH FEBRUARY 29, 1980. FURTHER, UNDER PROVISIONS OF THE INTERNAL REVENUE MANUAL, THE EFFECTIVE DATE OF TRANSFER IS THE DATE WHICH AN EMPLOYEE REPORTS FOR DUTY AT THE NEW STATION FOLLOWING TRANSFER.
UNDER PARA. 1-7.6A OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101 7, MAY 1973), PER DIEM IN LIEU OF SUBSISTENCE MAY NOT BE ALLOWED AT AN EMPLOYEE'S PERMANENT DUTY STATION. BY VIRTUE OF FTR PARA. 1-8.1A (FPMR TEMP.REG. A-11, SUPP. 4) THAT PROHIBITION APPLIES EQUALLY TO THE PAYMENT OF ACTUAL SUBSISTENCE EXPENSES AT THE EMPLOYEE'S PERMANENT DUTY STATION. PARAGRAPH 2-1.4J OF THE FTR PROVIDES THAT THE EFFECTIVE DATE OF A TRANSFER FROM ONE DUTY STATION TO ANOTHER IS THE DATE ON WHICH THE EMPLOYEE REPORTS FOR DUTY AT THE NEW STATION. THESE PROVISIONS WHEN CONSTRUED TOGETHER IN EFFECT CONSTITUTE A REQUIREMENT THAT AN EMPLOYEE MUST ACTUALLY REPORT FOR DUTY AT HIS NEW DUTY STATION BEFORE IT IS REGARDED AS HIS PERMANENT DUTY STATION SO AS TO ENTITLE HIM TO PER DIEM WHILE ON DUTY AT THE FORMER DUTY STATION. 54 COMP.GEN. 679 (1975).
AN EXCEPTION TO THE GENERAL RULE PROHIBITING PAYMENT OF PER DIEM AT THE EMPLOYEE'S PERMANENT DUTY STATION MAY ARISE UNDER EXCEPTIONAL CIRCUMSTANCES AS WHEN AN INDIVIDUAL, FOR WHOM A PERMANENT CHANGE OF STATION HAS BEEN AUTHORIZED, SIGNIFICANTLY CHANGES HIS POSITION IN RELIANCE UPON THE TRANSFER AUTHORIZATION. FOR EXAMPLE, IN 54 COMP.GEN. 679, SUPRA, WE AUTHORIZED PAYMENT OF PER DIEM TO AN EMPLOYEE WHO HAD VACATED HIS RESIDENCE AT HIS FORMER DUTY STATION, ENTERED INTO A REAL ESTATE CONTRACT AT HIS NEW DUTY STATION, AND WHO THEN WAS ORDERED TO TEMPORARY DUTY AT HIS OLD DUTY STATION.
THE FACTS BEFORE US DO NOT ESTABLISH THAT MS. SHERMAN SIGNIFICANTLY CHANGED HER POSITION IN RELIANCE ON THE PERMANENT CHANGE-OF-STATION ORDERS SO AS TO BRING HER CLAIM WITHIN THE EXCEPTIONAL CIRCUMSTANCES RULE. COMPARE SILAS H. HENARD, JR., B-191492, NOVEMBER 2, 1978.
SINCE MS. SHERMAN DID NOT REPORT TO HER NEW DUTY STATION IN ARKANSAS UNTIL AFTER FEBRUARY 29, 1980, DALLAS REMAINED HER PERMANENT DUTY STATION DURING THE PERIOD OF THE CLAIM AND THERE IS NO BASIS TO ALLOW MS. SHERMAN THE ACTUAL SUBSISTENCE EXPENSES CLAIMED WHILE AT HER OLD DUTY STATION.