B-205749.OM, JUL 13, 1982

B-205749.OM, JUL 13, 1982

SUBJECT: PER DIEM OF NEARBY TEMPORARY DUTY STATION, Z-2745140, AND SIMILAR CLAIMS - B-205749-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

IN 1978, YOU DISALLOWED CLAIMS FOR REIMBURSEMENT OF PER DIEM EXPENSES BY THREE INTERNAL REVENUE SERVICE (IRS) EMPLOYEES ON THE GROUND THAT PER DIEM MAY NOT BE PAID TO AN EMPLOYEE AT HIS PERMANENT POST OF DUTY. (SEE YOUR FILES Z-2745138, Z-2745139, AND Z-2745140, RETURNED HEREWITH.) ON THE BASIS OF THE SETTLEMENTS ISSUED IN THESE THREE CASES, THE IRS HAS UNDERTAKEN TO COLLECT PER DIEM PAYMENTS MADE IN SIMILAR CIRCUMSTANCES TO MESSRS. GEORGE C. HUGHES, DANIEL LEWANDOWSKI, JOHN J. O'NEILL, AND PAUL E. RICH. THOSE FOUR EMPLOYEES HAVE ASKED FOR RECONSIDERATION OF THE ORIGINAL DECISION BECAUSE OF ITS ADVERSE EFFECT ON THEM. WE FIND THAT THE PER DIEM CLAIMED WAS UNNECESSARILY DISALLOWED IN ONE OF THE THREE ORIGINAL CASES, Z 2745140. SINCE THE EMPLOYEE IN THAT CASE WAS AT A TEMPORARY DUTY SITE BEYOND THE CORPORATE LIMITS OF HIS PERMANENT DUTY STATION, DISALLOWANCE OF HIS CLAIM FOR PER DIEM IS NOT REQUIRED BY PARAGRAPH 1-7.6A OF THE FEDERAL TRAVEL REGULATIONS (FTR) (FPMR 101-7 (MAY 1973, AS AMENDED). CONSISTENT WITH THE ANALYSIS OF MR. SCIOLINO'S CLAIM SET FORTH BELOW, HIS CLAIM MAY NOW BE ALLOWED AND SETTLEMENT CERTIFICATES SUSTAINING THE PER DIEM PAYMENTS MADE MAY BE ISSUED IN FAVOR OF MESSRS. HUGHES, LEWANDOWSKI, O'NEILL, AND RICH. YOUR DISALLOWANCE OF THE CLAIMS IN THE TWO OTHER ORIGINAL CASES, Z-2745138 AND Z-2745139, IS SUSTAINED.

THESE THREE CASES, Z-2745138, Z-2745139, AND Z-2745140, ARISE FROM A SEVERE SNOWSTORM THAT HIT NEW YORK STATE IN 1977. TWO OF THE CASES, Z 2745138 AND Z-2745139, INVOLVED CLAIMS BY EMPLOYEES WHO ATTENDED A MEETING IN NIAGARA FALLS AND WHOSE POST OF DUTY WAS NIAGARA FALLS. THEY WERE UNABLE TO RETURN TO THEIR HOMES BECAUSE OF THE SNOWSTORM AND SPENT PARTS OF 2 DAYS AND ALL OF A THIRD AT THE RESIDENCE OF A FELLOW EMPLOYEE. THEY CLAIMED PER DIEM FOR MEALS BUT NOT LODGING.

THE THIRD CASE, Z-2745140, IS IN CONCEPT SIMILAR TO THE FOUR CASES IN WHICH IRS HAS UNDERTAKEN TO RECOVER PER DIEM PREVIOUSLY PAID. THOMAS J. SCIOLINO'S POST OF DUTY WAS ROCHESTER, NEW YORK. ON THE DAY OF THE STORM HE WAS ON OFFICIAL BUSINESS IN VICTOR, NEW YORK, 22 MILES FROM HIS POST OF DUTY. THE SNOWSTORM LEFT HIM STRANDED FOR 6 HOURS IN HIS CAR BEFORE HE WAS RESCUED BY THE LOCAL FIRE DEPARTMENT. HE SPENT THAT NIGHT AT THE FIRE STATION AND THREE NIGHTS AT A HOTEL. HIS CLAIM FOR PER DIEM TOTALED $116.

IN EACH OF THE THREE CASES YOU CITED FTR PARA. 1-7.6A, AND DENIED THE CLAIM FOR PER DIEM BECAUSE THE TEMPORARY DUTY WAS PERFORMED IN THE VICINITY OF THE PERMANENT DUTY STATION. THE DISALLOWANCE IN THE FIRST TWO CASES IS CONSISTENT WITH THOSE DECISIONS IN WHICH WE HAVE CONSISTENTLY HELD THAT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, NEITHER PER DIEM NOR SUBSISTENCE EXPENSES MAY BE PAID TO GOVERNMENT EMPLOYEES AT THEIR POST OF DUTY OR HEADQUARTERS AREA. SEE B-193542, JUNE 19, 1979, AND FTR PARA. 1-7.6A. THAT RESTRICTION IS STATUTORY IN NATURE. IT IS BASED ON 5 U.S.C. SEC. 5702 WHICH AUTHORIZES PAYMENT OF PER DIEM WHILE AN EMPLOYEE "IS TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS DESIGNATED POST OF DUTY." THE POST OF DUTY IS DEFINED AS THE "CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE OFFICER OR EMPLOYEE IS STATIONED ***." FTR PARA. 1- 1C(1).

THE COROLLARY TO THE ABOVE RESTRICTION IS THAT AN AGENCY HAS AUTHORITY TO PAY PER DIEM TO EMPLOYEES WORKING AT A TEMPORARY DUTY SITE OUTSIDE THE CORPORATE LIMITS OF THEIR PERMANENT POST OF DUTY. HOWEVER, WE HAVE RECOGNIZED THAT AN AGENCY HAS THE AUTHORITY TO PROMULGATE ITS OWN, MORE RESTRICTIVE GUIDELINES THAT ESTABLISH WHEN IT WILL PAY PER DIEM. COMP.GEN. 446, 452 (1973). THE IRS HAS DONE SO. THE INTERNAL REVENUE MANUAL, SEC. 341(2), PROVIDES THAT PAYMENT OF PER DIEM WILL NOT BE ALLOWED EMPLOYEES AT A TEMPORARY DUTY LOCATION WITHIN THE COMMUTING AREA OF THEIR PERMANENT RESIDENCE, EVEN IF THE TEMPORARY LOCATION IS OUTSIDE THE CORPORATE LIMITS OF THE PERMANENT POST OF DUTY. THE "COMMUTING AREA" IS DEFINED AS FOLLOWS:

"*** THE GEOGRAPHICAL AREA WHICH USUALLY CONSTITUTES ONE AREA FOR EMPLOYMENT PURPOSES. INCLUDES ANY POPULATION CENTER (OR TWO OR MORE NEIGHBORING ONES) AND THE SURROUNDING LOCALITIES WITHIN WHICH PEOPLE LIVE AND CAN REASONABLY BE EXPECTED TO TRAVEL BACK AND FORTH DAILY TO THEIR USUAL EMPLOYMENT. THE MAXIMUM EXTENT OF THE AREA SHOULD BE DETERMINED BY THE ACCEPTED PRACTICE, OR WHAT CAN REASONABLY BE EXPECTED, BASED ON AVAILABILITY AND COST OF PUBLIC TRANSPORTATION, CONVENIENCE AND ADEQUACY OF HIGHWAYS, AND/OR THE TRAVEL TIME TO AND FROM WORK."

IN MR. SCIOLINO'S CASE, HIS TEMPORARY DUTY ASSIGNMENT WAS BEYOND THE CORPORATE LIMITS OF ROCHESTER, HIS PERMANENT DUTY STATION. HOWEVER, THE ADMINISTRATIVE REPORT INDICATES THAT VICTOR IS CONSIDERED TO BE WITHIN THE COMMUTING AREA OF ROCHESTER. THIS DETERMINATION APPEARS TO BE BASED PRIMARILY ON THE FACT THAT MR. SCIOLINO ORDINARILY TRAVELS MORE THAN 22 MILES BETWEEN HIS RESIDENCE AND ROCHESTER. IN THIS REGARD HIS CASE IS SIMILAR TO THE FOUR CASES PRESENTED FOR THE FIRST TIME. IN EACH OF THOSE CASES THE EMPLOYEE INCURRED LODGING AND MEAL EXPENSES AS A RESULT OF THE SNOWSTORM WHILE ON TEMPORARY DUTY AT NIAGARA FALLS. WHILE NIAGARA FALLS IS BEYOND THE CORPORATE LIMITS OF THE EMPLOYEE'S DUTY STATION AT EITHER BUFFALO OR LOCKPORT, NEW YORK, IN EACH CASE THE IRS CONSIDERS NIAGARA FALLS TO BE WITHIN THE COMMUTING AREA OF THE EMPLOYEE'S DUTY STATION OR HIS RESIDENCE. NONETHELESS, IRS INITIALLY AUTHORIZED PAYMENT OF PER DIEM AND THE SERVICE CONTINUES TO TAKE THE POSITION THAT PAYMENT IS APPROPRIATE GIVEN THE EXTRAORDINARY CIRCUMSTANCES THAT CAUSED THE EMPLOYEES TO INCUR THE EXPENSES FOR WHICH THEY CLAIM REIMBURSEMENT.

IN FACT THE ONLY POSSIBLE RESTRICTION ON PAYMENT OF PER DIEM IN MR. SCIOLINO'S CASE IS SECTION 341 OF THE INTERNAL REVENUE MANUAL CITED ABOVE. SECTION 341 ESTABLISHES A RELATIVELY FLEXIBLE STANDARD FOR DETERMINING THE COMMUTING AREA WITHIN WHICH PER DIEM IS NOT TO BE PAID. TIME AND DISTANCE ARE BUT TWO OF THE FACTORS THAT MAY BE CONSIDERED. GIVEN THIS FLEXIBILITY, WE DO NOT VIEW THE REGULATION AS ESTABLISHING AN ABSOLUTE BAR TO PAYMENT OF PER DIEM IN EVERY CASE IN WHICH AN EMPLOYEE IS ASSIGNED TO TEMPORARY DUTY WITHIN AN AREA IN WHICH PER DIEM ORDINARILY WOULD NOT BE AUTHORIZED. RATHER, IT REFLECTS THE ADMINISTRATIVE DETERMINATION THAT THERE IS NO JUSTIFICATION FOR PAYING PER DIEM WHERE THE EMPLOYEE'S TEMPORARY DUTY ASSIGNMENT IS LOCATED SO NEAR HIS RESIDENCE THAT HE OUGHT TO RETURN HOME AT NIGHT.

IN THIS PARTICULAR CASE THE AGENCY HAS MADE A DETERMINATION THAT MR. SCIOLINO AND THE OTHER FOUR EMPLOYEES WERE JUSTIFIED IN INCURRING PER DIEM EXPENSES, GIVEN THE UNUSUAL COMMUTING CIRCUMSTANCES CREATED BY THE SNOWSTORM, EVEN THOUGH THEY WERE ON TEMPORARY DUTY AT A GEOGRAPHICAL LOCATION THAT MIGHT OTHERWISE BE CONSIDERED WITHIN THE COMMUTING AREA. SINCE PAYMENT OF THE PER DIEM CLAIMED IS NOT PROHIBITED BY FTR PARA 1 7.6A AND SINCE THE IRS HAS DETERMINED THAT THE EMPLOYEES COULD NOT REASONABLY HAVE BEEN EXPECTED TO RETURN HOME IN THE SNOWSTORM, WE DO NOT FIND THAT SECTION 341 CONSTITUTES A BAR TO PAYMENT OF THE PER DIEM CLAIMED BY THESE FIVE INDIVIDUALS. ACCORDINGLY, SETTLEMENTS MAY BE ISSUED IN THEIR FAVOR.