BNUMBER: B-260765
DATE: December 14, 1995
TITLE: Reginald Cutter-Temporary Quarters Subsistence
Expenses
**********************************************************************
Matter of:Reginald Cutter-Temporary Quarters Subsistence Expenses
File: B-260765
Date: December 14, 1995
DIGEST
1. A transferred employee who rented the house he eventually
purchased is not entitled to temporary quarters subsistence expenses
(TQSE) for the rental period. The record shows that the residence was
offered to the employee for "rent or purchase"; that the employee
rented it pending arrangements to sell his old house and seek
financing; and that, while the employee continued to look at other
houses during the rental period, he did so as a precaution in the
event he was unable to purchase the house. These facts support the
agency's determination that the employee moved into the house with the
intention of occupying it permanently.
2. A transferred employee was given an advance of travel funds which
included funds for TQSE. The employee became indebted for TQSE
because he failed to meet the legal requirements for payment of those
expenses, and not because of an erroneous authorization. Therefore,
the advance for TQSE does not constitute an erroneous payment subject
to waiver under 5 U.S.C. 5584 (1994).
3. A transferred employee was erroneously authorized relocation
expenses for his aunt and 22-year-old daughter, and was given an
advance for those expenses. It appears that the employee spent the
advance in reliance on the erroneous orders and, consequently, his
indebtedness is subject to waiver. The case is remanded to the agency
for computation of the debt that may be waived.
DECISION
Mr. Reginald Cutter, a civilian employee of the Department of the
Army, appeals our Claims Group settlement, Z-2869511, Feb. 8, 1995.
The settlement denied a portion of Mr. Cutter's temporary quarters
subsistence expenses (TQSE), and disallowed relocation expenses for
Mr. Cutter's aunt and 22-year-old daughter. We affirm our Claims
Group's determination, and hold that Mr. Cutter's indebtedness for
TQSE is not subject to waiver. However, since the employee spent
funds advanced for his aunt's and daughter's relocation expenses in
reliance on erroneous orders, his indebtedness for those expenses may
be waived.
BACKGROUND
Mr. Cutter was authorized relocation expenses, including 60 days'
temporary quarters subsistence expenses (TQSE), for his transfer from
the Sacramento (California) Army Depot to a position with the
Department of the Navy in Norfolk, Virginia. The travel orders
authorizing relocation expenses for Mr. Cutter's family erroneously
included his aunt and 22-year-old daughter.
Upon arriving in Norfolk on July 27, 1993, Mr. Cutter and his family
moved into a hotel. On August 18, 1993, the Cutters moved into a
house at 200 Marsh Quay in Chesapeake, Virginia, and entered into a
lease for a month-to-month rental ending on December 15. Mr. Cutter
states that:
"The property known as 200 Marsh Quay was available for rent or
purchase. The property was accepted for rent or purchase,
contingent on the sale of property in Sacramento and securing
financing, Aug. 93. We accepted the offer of renting, but did
not accept household goods because there was no guarantee of our
California property being sold immediately, and being able to
secure financing for purchase in Virginia . . . " [Emphasis
added.]
Mr. Cutter states that he rented furniture for the house and continued
to keep his household goods in storage. He further states that the
house was never taken off the market, and that twice during the rental
period he was given 30-day notices to vacate the house because other
parties had expressed interest in buying it. Also, Mr. Cutter states
that he and his family continued to look at other houses during the
rental period. A letter from Mr. Cutter's realtor states that he
continued to show the Cutter's other houses from August to December
1993, "in case our contingency contract fell through on 200 Marsh
Quay."
On October 20, 1993, the agency extended Mr. Cutter's TQSE eligibility
for another 60 days. On November 1, 1993, Mr. Cutter signed a
contract for the purchase of the Marsh Quay house, which was
contingent on the sale of his old residence and his ability to secure
financing. He settled on the contract on December 13, 1993.
The agency denied Mr. Cutter TQSE for the period he was renting the
house, finding that he had not demonstrated an intention to occupy it
on other than a permanent basis. In addition, the agency denied all
expenses for Mr. Cutter's aunt and 22-year-old daughter because they
did not qualify as eligible dependents for relocation expense
purposes. As a result, the agency determined that Mr. Cutter was
indebted for $17,195, the amount by which his travel advance exceeded
his allowable expenses.
The Defense Finance and Accounting Service, and subsequently our
Claims Group, agreed with the agency and disallowed Mr. Cutter's
claims. Mr. Cutter now appeals the denial of TQSE and requests that
we consider waiving those expenses, as well as the relocation expenses
that were erroneously authorized for his aunt and daughter.
OPINION
Temporary Quarters Subsistence Expenses
A transferred employee may be allowed subsistence expenses when the
occupancy of temporary quarters is determined to be necessary. 5
U.S.C. 5724a(a)(3) (1994); Joint Travel Regulations (JTR), vol. 2,
chapter 13. The JTR further provides that:
"[O]ccupancy of temporary quarters that eventually become the
employee's permanent residence shall not prevent payment of
temporary quarters allowance if the employee shows satisfactorily
that the quarters occupied were intended initially to be only
temporary. In making this determination, the DOD [Department of
Defense] component concerned should consider factors such as:
the duration of the lease, movement of household goods into the
quarters, type of quarters, expressions of intent, attempts to
secure a permanent dwelling, and the length of time the employee
occupies the quarters." 2 JTR para. C13000.
By its terms, the JTR commits to the agency's judgment determinations
of whether an employee has provided satisfactory evidence of an intent
to occupy quarters on only a temporary basis. The agency's
determination that the evidence is insufficient to show such an intent
will not be overturned by our Office unless it lacks any reasonable
basis in the record and thus constitutes an abuse of discretion.
Richard A. Alschuler, 71 Comp. Gen. 389 (1992); Roland R. Leaton,
B-261168, July 18, 1995.
In this case, the agency appears to have made an appropriate
determination based on the factors cited in the regulations. While
Mr. Cutter rented the house on a short-term, month-to-month basis, the
record suggests that at the time he began renting the house in August
1993 he was also contemplating its purchase. As noted previously, Mr.
Cutter states that he "accepted [the house] for rent or purchase,
contingent upon the sale of property in Sacramento and securing
financing, Aug. 93." Further, the statement from Mr. Cutter's realtor
indicates that he continued to show houses to the Cutters from August
to December 1993 as a precaution, in the event they were unable to
purchase the Marsh Quay house.
The fact that Mr. Cutter received 30-day notices to vacate the house
does not, in our view, change the nature of his occupancy,
particularly since there is no evidence that he moved out in response
to the notices. Furthermore, while Mr. Cutter continued to keep his
household goods in storage, the absence of household goods does not in
itself show an intention to reside in quarters temporarily. See,
e.g., Stephen A. Webb, B-211004, May 23, 1983 ("[I]t is occupancy of
the quarters, not their unrestricted or comfortable use, which is
controlling."). Accordingly, we find no basis to disturb the agency's
determination that Mr. Cutter was occupying permanent quarters from
August 18 to December 13, 1993, and, therefore, he may not be allowed
TQSE for that period.
As noted above, Mr. Cutter requests waiver of his indebtedness for the
portion of his travel advance covering TQSE during the rental period.
Under 5 U.S.C. 5584 (1994), the Comptroller General may waive an
employee's indebtedness for travel or relocation expenses only if the
debt arises from an "erroneous payment." In this case, Mr. Cutter
became indebted for TQSE because he failed to meet the legal and
regulatory requirements for the payment of such expenses, and not
because of any administrative error in the authorization of TQSE.
Consequently, Mr. Cutter's indebtedness for TQSE did not arise from an
erroneous payment and may not be considered for waiver. Sandra J.
Samuels, B-226015, Apr. 25, 1988.
Relocation Expenses for Relatives
As noted previously, Mr. Cutter was erroneously authorized relocation
expenses for his aunt and 22-year-old daughter. The applicable
regulations allow such expenses only for an employee's immediate
family members, which do not include aunts under any circumstances and
include children over 21 years of age only if they "are physically or
mentally incapable of self-support." 2 JTR app. D.
The fact that Mr. Cutter was erroneously authorized relocation
expenses would not provide a basis for payment of a subsequent claim,
since the government is not bound by the erroneous acts of its agents.
Karla Heerman, B-260861, Aug. 8, 1995. However, since the agency is
attempting to recoup the amounts it advanced to Mr. Cutter for these
expenses, we may consider whether collection of the debt may be
waived.
Under 5 U.S.C. 5584, an employee's indebtedness for an erroneous
payment of relocation expenses may be waived if collection "would be
against equity and good conscience and not in the best interests of
the United States" and there is no indication of "fraud,
misrepresentation, fault, or lack of good faith" on the employee's
part. As a general rule, we presume that an employee who incurs
expenses erroneously authorized by travel orders has done so in
reliance on those orders and, providing the claim meets the other
criteria noted above, we will waive the resulting debt. Mary F.
Lopez, B-236856, Dec. 15, 1989; Darlene Wyrick, 68 Comp. Gen. 462
(1989). In both of the cited cases, we waived debts resulting from
travel orders erroneously authorizing relocation expenses for
nondependent adult children.
In this case, we find that Mr. Cutter meets the requirements for
waiver. There is nothing in the record to indicate that Mr. Cutter
misled the agency as to the identities of either relative; in fact,
the orders themselves clearly state the daughter's birth date and the
aunt's relationship to the employee. Therefore, we may presume that
Mr. Cutter incurred relocation expenses for his aunt and daughter in
good faith reliance on his travel orders, and his resulting
indebtedness may be waived.
While we conclude that waiver is appropriate in this case, the record
does not permit a determination of the dollar amount that is subject
to waiver. Accordingly, we are remanding the case to the agency for
calculation of the amount of relocation expenses that Mr. Cutter would
have been entitled to receive for his aunt and daughter had they
qualified as members of his immediate family. If the amount is $1,500
or less, the agency may waive its collection pursuant to 5 U.S.C.
5584; if it is higher, the matter should be returned to us for waiver.
Accordingly, we affirm our Claims Group's determination that Mr.
Cutter is not entitled to TQSE for the period August 18 to December
13, 1993, and hold that his indebtedness for those expenses may not be
waived. Mr. Cutter's indebtedness for relocation expenses incurred on
behalf of his aunt and daughter is remanded to the agency for
calculation of the amount subject to waiver.
/s/Seymour Efros
for Robert P. Murphy
General Counsel