BNUMBER: B-257719
DATE: May 8, 1996
TITLE: Kathleen Cox-Temporary Quarters Expenses
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Matter of:Kathleen Cox-Temporary Quarters Expenses
File: B-257719
Date:May 8, 1996
DIGEST
Employee moved into a furnished rental apartment while on temporary
duty and maintained a permanent residence at her old duty station
where her family continued to reside. She was subsequently given a
permanent change of station to her temporary duty location and was
authorized 60 days temporary quarters subsistence expenses. After her
transfer became effective, she vacated her permanent residence at her
old station, moved her family and her household goods to her new duty
station, and stayed in the same furnished apartment at the new station
for approximately 45 days before her new permanent residence was ready
for occupancy. Since the agency has determined that her occupancy of
the furnished apartment was in fact temporary under 41 C.F.R. sec.
302-5.2(c) (1995), her claim for temporary quarters expenses may be
paid. William E. Gray, 66 Comp. Gen. 532 (1987), distinguished.
DECISION
The Internal Revenue Service (IRS) requests a decision as to whether
it may reimburse an employee for temporary quarters subsistence
expenses in connection with a permanent change of station where the
employee continued to reside after transfer in the apartment which she
had rented while on temporary duty.[1] For the following reasons, her
claim may be paid.
BACKGROUND
The record shows that the employee, Ms. Kathleen Cox, stationed at
Laguna Niguel, California, was asked in early 1993 if she would be
interested in a position managing the IRS office in Palm Springs,
California. She indicated she would accept this position if moving
expenses were allowed. Pending a decision on that question, she was
assigned to temporary duty in Palm Springs on March 8, 1993. She
initially stayed at a hotel at a cost of $80 per night. Because of
budget constraints and because the duration of the detail was
indefinite, she entered into a month-to-month lease for a furnished
apartment at an average cost of $45 per night. She moved into this
apartment on April 1, 1993, and continued to maintain her permanent
residence at her old duty station and her family (daughter and
granddaughter) continued to reside there.
On July 21, 1993, the District Director approved the transfer of Ms.
Cox to Palm Springs with a reporting date of August 8, 1993. Her
travel orders authorized her 60 days of temporary quarters occupancy.
Ms. Cox asked IRS officials whether, after her transfer, she could
continue to stay in the same furnished apartment she occupied as
temporary quarters. Based on a review of the agency's travel manual,
the IRS advised her that nothing prohibited her staying there. She
then gave notice on her permanent residence at her old duty station
and promptly located a new permanent residence in the Palm Springs
area which was available for occupancy on September 23, 1993. In
August 1993, she vacated her old permanent residence, her family
joined her in Palm Springs, and her household goods were shipped to
Palm Springs.
Based on the agency's advice, she continued to reside in the furnished
apartment in Palm Springs and claimed temporary quarters expenses for
the period of August 8 to September 23, 1993. The IRS Western Region
Fiscal Management Office suspended Ms. Cox's temporary quarters
lodging claim[2] based on William E. Gray, 66 Comp. Gen. 532 (1987),
since she had not vacated the apartment she occupied in Palm Springs
at the time of notice of transfer.
The IRS points out that Ms. Cox did not move her family and her
household goods to Palm Springs until after she was transferred there
and that her intent was to occupy the furnished apartment only
temporarily until she could move into permanent quarters. Thus, it
concludes the apartment used by Ms. Cox while on temporary duty was
indeed temporary lodging. The IRS therefore requests that we advise
whether the suspended claim may be paid despite Gray.
OPINION
Title 5, United States Code, section 5724a(a)(3) authorizes an agency
to reimburse employees transferred in the interest of the government
for subsistence expenses for a period of 60 days[3] while occupying
temporary quarters. The implementing Federal Travel Regulation (FTR)
(41 C.F.R. Part 302-5) provides in section 302-5.1[4] that the
administrative determination as to whether the occupancy of temporary
quarters is necessary and the length of occupancy shall be made on an
individual-case basis. The FTR further provides in section
302-5.2(c):[5]
"(c) What constitutes temporary quarters. Generally, the term
'temporary quarters' refers to lodging obtained from private or
commercial sources for the purpose of temporary occupancy after
vacating the residence occupied when the transfer was
authorized."
What constitutes temporary quarters under this regulation is not
susceptible of any precise definition and, therefore, that
determination must be based on the facts in each case. See Charles P.
Ball, B-223407, June 18, 1987, and the decisions cited therein.
Agencies should consider such factors as the type of quarters, the
duration of the lease, movement of household effects into the
quarters, efforts to secure a permanent residence, expressions of
intent, and any other pertinent facts and circumstances surrounding
the occupancy. If, on the basis of these considerations, it is
determined that, at the time the employee moved into the residence, he
or she clearly manifested the intent to occupy the quarters only on a
temporary basis, payment of temporary quarters subsistence expenses is
allowable, even though the quarters could be occupied permanently, or
did, in fact, become permanent. Charles P. Ball, supra.
Applying these criteria to the instant case, we note that the record
shows that Ms. Cox rented a furnished apartment on a month-to-month
lease and that she maintained her permanent residence at her old duty
station until her transfer on August 8, 1993. Her family continued to
live in the permanent residence and Ms. Cox considered it to be her
residence until after her transfer was authorized, even though she was
living in Palm Springs at that time. Moreover, Ms. Cox was advised by
IRS officials that she could stay in her rented apartment as temporary
quarters after the transfer.
Based on these facts, the IRS determined that Ms. Cox had
satisfactorily showed that her apartment in the Palm Springs area was
only temporary and that her permanent residence at her old duty
station was, in fact, her residence until after her transfer.
As indicated above, however, Ms. Cox's claim for lodging expenses was
disallowed by the IRS regional fiscal management office based on
William E. Gray, 66 Comp. Gen. 532 (1987). We believe Gray is
distinguishable.
In Gray, an employee stationed in Chicago was placed on a 4-month
detail to Baltimore. His family moved with him to a rented townhouse
in Baltimore and the detail was extended to over 13 months before he
was officially transferred to Baltimore. He and his family continued
to reside in the same townhouse during the entire detail and after his
transfer, and he claimed temporary quarters expenses for occupying
those quarters for an additional 90 days. The agency disallowed his
claim, because he had not vacated "the residence occupied when the
transfer was authorized," as required by the FTR.
Under those circumstances, we upheld the agency's determination of Mr.
Gray's ineligibility. As we stated in Gray, an employee who is
transferred to the location at which he has been performing extended
temporary duty may not receive temporary quarters expenses if, after
the date of his transfer, he continues to stay at the same residence
he was occupying during the temporary assignment. While Mr. Gray may
have viewed the rented townhouse as purely temporary housing, the
"residence" which the employee must vacate under the regulation quoted
above includes any housing, temporary or permanent, as long as it
constitutes the employee's actual place of abode at the time he is
transferred rather than mere transient lodgings. William E. Gray, 66
Comp. Gen. at 535, supra.
William E. Gray was not intended to set forth a rigid rule that
lodging occupied during temporary duty must be vacated upon transfer
or to vary the requirement in the FTR that the determination of what
constitutes temporary quarters must be based on the facts in each
case. There is no absolute requirement that a temporary duty
residence must be vacated in all cases. Rather, in each case, the
agency must examine the facts to determine whether a temporary duty
residence has, in fact, become an actual place of abode rather than
mere temporary lodgings. We will uphold the agency's determination
unless it is arbitrary or capricious. Thus, in Gray we upheld the
agency's determination that the townhouse which Mr. Gray and his
family had occupied for more than 13 months before his transfer had
become his "actual place of abode" at the time he was transferred.
In the current case, the IRS concluded that the furnished apartment
used by Ms. Cox while on temporary duty was indeed temporary lodging
and that her actual place of abode was her residence at her old duty
station for purposes of FTR sec. 302-5.2(c). Based on the circumstances
of Ms. Cox's claim outlined above, we believe the IRS reasonably
concluded that her residence for purposes of FTR sec. 302-5.2(c) remained
at her old duty station until after her transfer. Since the agency
has reasonably determined that her temporary duty apartment was only
temporary lodging and had not become her place of abode, her continued
stay at that apartment following her transfer is not a bar to her
claim for temporary quarters expenses.
Accordingly, Ms. Cox's claim may be paid, if otherwise proper.
Robert P. Murphy
General Counsel
1. This request was submitted by Mr. Steve Goldberg, Chief, Office of
Travel Management and Relocation, IRS, Department of the Treasury,
Washington, DC.
2. Her non-lodging temporary quarters expenses were paid.
3. The period may be extended by the agency for an additional 60 days
for compelling reasons. No additional period was required here.
4. 41 C.F.R. sec. 302-5.1 (1995).
5. 41 C.F.R. sec. 302-5.2(c) (1995).