B-239590, Jan 29, 1991, 70 Comp.Gen. 205

B-239590, Jan 29, 1991, 70 Comp.Gen. 205

CIVILIAN PERSONNEL - Relocation - Residence transaction expenses - Reimbursement - Eligibility Employee entered into a contract to sell his old residence after he was selected and accepted a job offer from another agency at a new duty station. He later accepted another job offer from his old agency and declined the first offer. He is entitled to reimbursement of sales expenses incident to his transfer by his agency. Since the residence sales contract was occasioned in contemplation of a transfer in the interest of the government his acceptance of another transfer does not defeat his right to be reimbursed.

Paul W. Adamske - Real Estate Expenses - Successive Job Offers:

This decision is in response to a request from an Authorized Certifying Officer, Bonneville Power Administration (BPA), Department of Energy, concerning the entitlement of an employee to be reimbursed real estate sales expenses incident to his transfer in August 1989. /1/ We conclude that he may be reimbursed for the following reasons.

BACKGROUND

Mr. Paul W. Adamske, a Department of Energy employee stationed in Loveland, Colorado, applied for a position with the Bureau of Reclamation, Department of the Interior, which would have involved a transfer to another location. On July 11, 1989, he was orally notified of his selection, and he accepted the offer. Written confirmation was sent to him by letter dated July 14, 1989, and a travel authorization was issued on July 26, 1989, with a projected reporting date of August 28, 1989.

On July 12, 1989, after he accepted the Bureau of Reclamation offer, Mr. Adamske placed his Loveland, Colorado, residence on the market. On July 18, 1989, he executed a contract to sell the residence which designated August 25, 1989, as the settlement date.

Subsequently, on July 28, 1989, Mr. Adamske was orally offered a position by the BPA at Madras, Oregon. He informed the BPA hiring authorities that he had accepted a job offer from the Bureau of Reclamation. After receiving assurances that he could still decline that offer without difficulties, he orally accepted the BPA position. On July 31, 1989, he received written confirmation of the BPA offer and on August 5, 1989, he executed a 1-year service agreement with the BPA. On or about August 8, 1989, when he received a written travel authorization from the BPA, he notified the hiring authorities at the Bureau of Reclamation that he declined their position offer. On August 25, 1989, the sale of his residence was completed at settlement as scheduled and he vacated the residence and moved to Oregon. Throughout the entire period up to that time, Mr. Adamske had occupied the Loveland residence as his commuting residence.

Following his transfer, he submitted a travel voucher to the BPA which included his claim for real estate expenses incident to the sale of his residence in Loveland, Colorado. Those expenses, which totaled $6,953, were disallowed by the BPA. The agency's view was that, by executing the sales contract on July 18, 1989, Mr. Adamske became legally obligated for the real estate expenses before the BPA definitely notified him of his transfer. The BPA refers to our decision in Benjamin M. Johnson, B-229390, Sept. 14, 1988, as authority for that conclusion.

Mr. Adamske has appealed that disallowance. He contends that, before he declined the Bureau of Reclamation job, he was told by the BPA that there would be no problem with relocation if he accepted the BPA offer. He adds that the BPA travel authorization and other documents left him with no doubt that his residence sales expenses would be reimbursed. Otherwise he says that he would not have declined the job with the Bureau of Reclamation.

OPINION

Under authority of 5 U.S.C. Sec. 5724(a) and 5724a(a)(4) (1988) and implementing provisions in the Federal Travel Regulations (FTR), /2/ an employee who is transferred to a new duty station in the interest of the government may be reimbursed for the expenses of the sale of his residence at his old duty station and purchase of a residence at his new duty station.

Section 302-6.1 of the FTR authorizes reimbursement to an employee for real estate expenses required to be paid in connection with the sale of a residence at the old duty station, provided certain conditions are met. Among those conditions are the requirements that a permanent change of station is authorized and a service agreement executed; title to the residence is in the name of the employee and/or member(s) of his immediate family, and the employee occupied it as his commuting residence when first definitely informed of his transfer to a new permanent duty station; and the settlement of the sale occurs not later than 2 years (which may be extended up to an additional 1 year) after the employee reports for duty at his new official station.

In this case, when Mr. Adamske was authorized to transfer by BPA, he signed a service agreement, and the settlement date occurred thereafter,
and was well within the time limitations specified.
This leaves only the
title requirements of FTR section 302-6.1(c) to be satisfied.

We note at the outset that Mr. Adamske held title to the residence at the
times in question.
The execution of an agreement to sell a residence with
settlement at a future date does not constitute a sale and does not
transfer title.
We have held that a contract of sale which is no more
than an agreement to transact the closing in the future is not a
"settlement" within the meaning of Part 302-6 of the FTR.
Glenn A. Kovar,
B-186003, Oct. 4, 1976.
See also Robert J. Jaske, B-227466, Dec. 4,
1987.

We do not consider Benjamin M. Johnson, B-229390, supra, as controlling
Mr. Adamske's entitlement.
In Johnson, the employee completed the sale of
his residence more than 1 year before he received definite notice of
transfer.
We concluded the employee therefore was not entitled to be
reimbursed residence sales expenses.

Here, Mr. Adamske executed a contract to sell his old residence only
after he had been notified of his selection by the Bureau of Reclamation
and after his acceptance of that transfer offer.
Had he transferred to
the Bureau of Reclamation, he would have been reimbursed expenses for the
sale of his residence.
In these circumstances we do not believe that his
later acceptance of an offer from the BPA, another government agency, and
his declination of the prior offer defeats his right to reimbursement.
See James K. Marron, 63 Comp.Gen. 298 (1984).

Therefore, Mr. Adamske may be reimbursed the allowable expenses of
selling his residence.

/1/ Ms. Joanne C. Henry, Reference DSDT.

/2/ 41 C.F.R. Part 302 (effective May 10, 1989).