B-150304, FEB 18, 1972

B-150304, FEB 18, 1972

CIVILIAN EMPLOYEE - REIMBURSEMENT - PROPERTY EXPENSES - SUBSISTENCE - OVERTIME - ENTITLEMENT DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF THOMAS J. BEEBE FOR 1. EXPENSES INCURRED BY THE PURCHASE OF PROPERTY; 2. TEMPORARY SUBSISTENCE EXPENSES INCIDENT TO A CHANGE OF OFFICIAL DUTY STATION; AND 3. OVERTIME COMPENSATION. THE CLAIM MUST BE DENIED FOR THE FOLLOWING REASONS: 1. UNDER SECTION 4.2C, OMB CIRCULAR NO. A-56, BOTH ADVISORY LEGAL SERVICES AND INTANGIBLE TAX COSTS LEVIED ON A PROMISSORY NOTE SECURED BY A MORTGAGE ARE NOT REIMBURSABLE. 2. UNDER 5 U.S.C. 5724A, NO PROVISION IS MADE FOR REIMBURSEMENT OF ESCALATING COSTS OF SUBSISTENCE EXPENSES. 3. CLAIMANT'S OVERTIME WORK WAS NEITHER AUTHORIZED NOR APPROVED AS REQUIRED BY FEDERAL PERSONNEL MANUAL, CHAPTER 550, SUBCHAPTER 1, PARAGRAPHS 1-3.

TO MR. THOMAS J. BEEBE:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 29, 1971, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR (1) EXPENSES INCURRED IN CONNECTION WITH THE PURCHASE OF PROPERTY, (2) TEMPORARY SUBSISTENCE EXPENSES INCURRED INCIDENT TO YOUR CHANGE OF OFFICIAL DUTY STATIONS FROM WATERTOWN, NEW YORK, TO MIAMI, FLORIDA, AND (3) FOR OVERTIME HOURS PURPORTEDLY WORKED DURING THE PERIOD FROM MARCH 1970 THROUGH APRIL 1971.

THE EXPENSES FOR WHICH REIMBURSEMENT IS CLAIMED RELATING TO THE PURCHASE OF A RESIDENCE CONSIST OF AN ATTORNEY'S FEE IN THE AMOUNT OF $25 AND ALSO AN ITEM OF $46 FOR AN INTANGIBLE TAX ASSESSMENT. PERTAINING TO THE ATTORNEY'S FEE, OFFICE OF MANAGEMENT AND BUDGET CIRCULAR NO. A-56, REVISED JUNE 26, 1969, SECTION 4.2C STATES:

"C. LEGAL AND RELATED COSTS. TO THE EXTENT SUCH COSTS HAVE NOT BEEN INCLUDED IN BROKERS' OR SIMILAR SERVICES FOR WHICH REIMBURSEMENT IS CLAIMED UNDER OTHER CATEGORIES, THE FOLLOWING EXPENSES ARE REIMBURSABLE WITH RESPECT TO THE SALE AND PURCHASE OF RESIDENCES IF THEY ARE CUSTOMARILY PAID BY THE SELLER OF A RESIDENCE AT THE OLD OFFICIAL STATION OR IF CUSTOMARILY PAID BY THE PURCHASER OF A RESIDENCE AT THE NEW OFFICIAL STATION, TO THE EXTENT THEY DO NOT EXCEED AMOUNTS CUSTOMARILY CHARGED IN THE LOCALITY OF THE RESIDENCE; COSTS OF (1) SEARCHING TITLE, PREPARING ABSTRACT, AND LEGAL FEES FOR A TITLE OPINION, OR (2) WHERE CUSTOMARILY FURNISHED BY THE SELLER, THE COST OF A TITLE INSURANCE POLICY; COSTS OF PREPARING CONVEYANCES, OTHER INSTRUMENTS, AND CONTRACTS; RELATED NOTARY FEES AND RECORDING FEES; COSTS OF MAKING SURVEYS, PREPARING DRAWINGS OR PLATS WHEN REQUIRED FOR LEGAL OR FINANCING PURPOSES; AND SIMILAR EXPENSES. COSTS OF LITIGATION ARE NOT REIMBURSABLE."

AS YOU WERE ADVISED BY OUR CLAIMS DIVISION, WE HAVE HELD UNDER THE ABOVE- QUOTED REGULATION THAT NO REIMBURSEMENT IS TO BE ALLOWED FOR LEGAL SERVICES WHICH ARE OF AN ADVISORY NATURE. B-163690, MARCH 29, 1968, COPY HEREWITH. THE RECORD BEFORE US INDICATES THAT SUCH FEE WAS FOR ADVICE CONCERNING THE CONTRACT OF PURCHASE, MORTGAGE COMMITMENT, CLOSING TITLE, AND ADJUSTING TAXES, AND NOT FOR THE TYPE OF SERVICE OR FOR THE PREPARATION OF DOCUMENTS DESCRIBED IN THE REGULATION. ACCORDINGLY, WE MUST SUSTAIN THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING THAT ITEM.

WITH REGARD TO THE $46 FOR INTANGIBLE TAX COSTS LEVIED INCIDENT TO THE PURCHASE OF YOUR PROPERTY, YOUR ATTENTION IS INVITED TO THE FACT THAT SUCH TAX IS NOT ONE LEVIED ON A MORTGAGE BUT RATHER ONE LEVIED ON THE PROMISSORY NOTE IN THE HANDS OF THE HOLDER WHICH IS SECURED BY A MORTGAGE. IN SUCH LIGHT WE HAD OCCASION TO RULE IN B-160040, FEBRUARY 5, 1968, COPY ENCLOSED, THAT SUCH TAX IS NOT A MORTGAGE, TRANSFER, OR EXCISE TAX ON THE REAL ESTATE TRANSACTION OR "SIMILAR FEES OR CHARGES" UNDER SECTION 4.2D OF THE ABOVE-REFERENCED CIRCULAR NO. A-56 AND THEREFORE IS NOT PROPERLY REIMBURSABLE TO THE CLAIMANT. THE DISALLOWANCE OF THIS ITEM BY OUR CLAIMS DIVISION IS ALSO SUSTAINED.

CONCERNING YOUR CLAIM FOR OVERTIME HOURS ALLEGEDLY WORKED DURING THE PERIOD MARCH 1970 THROUGH APRIL 1971, OUR CLAIMS DIVISION POINTED OUT IN THE LETTER OF DECEMBER 10, 1971, THAT THERE WAS NO EVIDENCE IN THE RECORD INDICATING THAT SUCH HOURS OF OVERTIME WERE EITHER AUTHORIZED OR APPROVED BY A RESPONSIBLE OFFICER OR EMPLOYEE AS REQUIRED BY FEDERAL PERSONNEL MANUAL, CHAPTER 550, SUBCHAPTER 1, PAR. 1-3. FURTHERMORE, WE NOTE FROM YOUR LETTER OF DECEMBER 29, 1971, THAT THE BASIS FOR YOUR OVERTIME CLAIM APPARENTLY IS GROUNDED UPON THE EXTRA TIME YOU WERE REQUIRED TO DRIVE FROM YOUR HOME TO VARIOUS OFFICES OF THE VETERANS ADMINISTRATION. IN THAT CONNECTION WE NOTE THE FOLLOWING STATEMENTS CONTAINED IN A LETTER FROM THE VETERANS ADMINISTRATION DATED JUNE 23, 1971:

"1. THE 'OVERTIME' MENTIONED IN MR. BEEBE'S LETTER OF JUNE 7, 1971, WAS NEITHER ORDERED NOR AUTHORIZED. IT IS WORTH NOTING THAT THE ITINERANT SCHEDULES THAT HAVE BEEN IN EFFECT IN THE MIAMI AREA WERE SET UP SO THAT CONTACT REPRESENTATIVES WOULD BE ABLE TO CONDUCT THEIR TRAVEL DURING REGULAR OFFICE HOURS.

"2. IF MR. BEEBE PERFORMED ANY 'OVERTIME' - HE DID SO IN FACE OF REPEATED STATEMENTS THAT THIS WAS NOT REQUIRED."

ALSO, SEE 5 U.S.C. 5542(B)(2) AS TO WHEN TRAVEL MAY BE REGARDED AS WORK FOR OVERTIME PURPOSES. ACCORDINGLY, WE MUST SUSTAIN THE ACTION OF OUR CLAIMS DIVISION IN DENYING THE OVERTIME COMPENSATION CLAIMED.

WITH REGARD TO YOUR CLAIM FOR ADDITIONAL TEMPORARY SUBSISTENCE ALLOWANCE BASED UPON SEASONAL INCREASED COSTS IN THE MIAMI, FLORIDA, AREA, THE RECORD INDICATES THAT YOU PREVIOUSLY HAVE BEEN INFORMED THAT YOUR VOUCHER COVERING TEMPORARY SUBSISTENCE EXPENSES FOR 30 DAYS HAS BEEN COMPUTED AND ALLOWED IN ACCORDANCE WITH THE PROVISION OF 5 U.S.C. 5724A, AND THE REGULATIONS ISSUED PURSUANT THERETO. WE POINT OUT THAT NO PROVISION IS MADE THEREIN BECAUSE OF ESCALATING COSTS OF SUBSISTENCE EXPENSES SUCH AS IN YOUR CASE. THEREFORE, THERE IS NO BASIS ON WHICH WE MAY ALLOW YOU ANY ADDITIONAL AMOUNT FOR THAT PURPOSE.