B-168356, DEC. 11, 1969

B-168356, DEC. 11, 1969

OFFICERS AND EMPLOYEES--TRANSFERS--RELOCATION EXPENSES--HOUSE SALE-- BROKER'S FEE AMOUNT REPRESENTING REIMBURSEMENT OF BROKER'S FEE PAID IN CONNECTION WITH SALE OF EMPLOYEE'S HOUSE INCIDENT TO TRANSFER EFFECTIVE AUG. 3, 1966 -- WHERE EMPLOYEE ENTERED SALES AGREEMENT JULY 28, 1967, SALE WAS CONSUMMATED OCT. 12, 1967, AND DATE OF AGREEMENT (JULY 28, 1967) WAS CONSIDERED DATE OF SETTLEMENT -- SHOULD BE COLLECTED FROM EMPLOYEE, BECAUSE BUREAU OF BUDGET CIR. NO. A-56, SUBSEC. 4.1D, REQUIRES THAT SETTLEMENT BE MADE WITHIN 1 YEAR OF TRANSFER, AND ORIGINAL DECISIONS DEFINE TERM "SETTLEMENT DATE" AS TIME OF TRANSFER OF EQUITABLE OR LEGAL TITLE OF REAL PROPERTY, AND SINCE USUAL AGREEMENT FOR SALE OF REAL ESTATE IS NOT SETTLEMENT UNDER REGULATION PAYMENT WAS ERRONEOUS AND MOREOVER SINCE REGULATION IS STATUTORY IN NATURE, TIME LIMITATION MAY NOT BE WAIVED OR EXTENDED.

TO MR. LOUIS B. ANDERSON:

THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 6, 1969, REFERENCE 6540, REQUESTING OUR DECISION AS TO WHETHER A PAYMENT OF $930 TO MR. GEOFFREY B. COLEMAN, AN EMPLOYEE OF YOUR AGENCY, MAY BE ALLOWED TO STAND AS MADE. THE PAYMENT REPRESENTS REIMBURSEMENT OF A BROKER'S FEE PAID IN CONNECTION WITH THE SALE OF MR. COLEMAN'S HOUSE INCIDENT TO HIS TRANSFER FROM REDDING, CALIFORNIA, TO WASHINGTON, D.C., UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

MR. COLEMAN WAS TRANSFERRED EFFECTIVE AUGUST 3, 1966. ON JULY 28, 1967, HE ENTERED INTO AN AGREEMENT FOR THE SALE OF HIS HOUSE IN REDDING AND THE SALE WAS CONSUMMATED ON OCTOBER 12, 1967, AS EVIDENCED BY AN ESCROW STATEMENT ISSUED ON THAT DATE. THE DATE OF THE SALES AGREEMENT WAS CONSIDERED TO BE THE DATE OF SETTLEMENT AND ON OCTOBER 25, 1967, MR. COLEMAN WAS REIMBURSED THE COST OF THE BROKER'S FEE. SUBSEQUENTLY, MR. COLEMAN'S CLAIM FOR ADDITIONAL SELLING EXPENSES BASED ON THE ESCROW STATEMENT AND EXPENSES INCIDENT TO THE PURCHASE OF A HOUSE AT HIS NEW STATION WAS SUBMITTED TO OUR OFFICE AS A DOUBTFUL CLAIM. OUR CLAIMS DIVISION DISALLOWED THE CLAIM SINCE NEITHER SETTLEMENT WAS MADE WITHIN 1 YEAR OF THE TRANSFER AS REQUIRED BY SUBSECTION 4.1D OF BUREAU OF THE BUDGET CIRCULAR NO. A-56, REVISED, EFFECTIVE JULY 21, 1966. YOU SUBMITTED THE MATTER FOR OUR DECISION BECAUSE YOUR RECORDS INDICATE THE FIRST DEFINITIVE RULING ON WHAT CONSTITUTES ,SETTLEMENT DATE" FOR A REAL ESTATE TRANSACTION IS CONTAINED IN OUR DECISION 47 COMP. GEN. 582 (B-163827, APRIL 23, 1968). YOU REFER TO THE STATEMENT MADE IN OUR DECISION 46 COMP. GEN. 677 (B-160799, FEBRUARY 28, 1967) TO THE EFFECT THAT THE TERM "SETTLEMENT" HAD NO DEFINITE OR FIXED MEANING; ALSO, THAT IN VIEW OF SUCH STATEMENT THE CERTIFYING OFFICER WHO HANDLED MR. COLEMAN'S ORIGINAL CLAIM MADE A JUDGMENT THAT THE REQUIREMENTS OF SUBSECTION 4.1D WERE REASONABLY MET BY A SALES AGREEMENT ENTERED INTO WITHIN THE 1-YEAR PERIOD. INCIDENTALLY THE DECISION OF FEBRUARY 28, 1967, INVOLVED A "CONTRACT FOR DEED" WHEREBY THE PURCHASER TOOK POSSESSION AND EQUITABLE TITLE TO THE PROPERTY IN QUESTION.

THE REGULATION CITED ABOVE WAS ISSUED PURSUANT TO PUBLIC LAW 89-516, 80 STAT. 323, APPROVED JULY 21, 1966, AND THEREFORE IS STATUTORY IN NATURE. THE ORIGINAL CONSTRUCTION OF A REGULATION HAVING THE FORCE AND EFFECT OF LAW IS EFFECTIVE FROM THE EFFECTIVE DATE OF THE REGULATION. SEE 27 COMP. GEN. 686, 688 (1948). INASMUCH AS OUR DECISIONS 46 COMP. GEN. 677 AND 47 COMP. GEN. 582 WERE ORIGINAL DECISIONS DEFINING THE TERM "SETTLEMENT DATE" AS THE TIME OF TRANSFER OF THE EQUITABLE OR LEGAL TITLE OF REAL PROPERTY, THEY ARE EFFECTIVE AS OF THE EFFECTIVE DATE OF THE REGULATION IN QUESTION, JULY 21, 1966. SINCE THE USUAL AGREEMENT FOR THE SALE OF REAL ESTATE IS NOT A SETTLEMENT UNDER THE REGULATION, THE PAYMENT TO MR. COLEMAN WAS ERRONEOUS. MOREOVER, SINCE THE REGULATION IS STATUTORY IN NATURE, OUR OFFICE CANNOT WAIVE THE TIME LIMITATION, NOR EXTEND IT.

IN VIEW OF THE ABOVE THE AMOUNT OF THE ERRONEOUS PAYMENT SHOULD BE COLLECTED FROM MR. COLEMAN.