BNUMBER:  B-257719
DATE:  May 8, 1996
TITLE:  Kathleen Cox-Temporary Quarters Expenses

**********************************************************************

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).