_________________ February 20, 1997 _________________ GSBCA 13866-RELO In the Matter of ROBERT L. SPRUTE Robert L. Sprute, Ogden, UT, Claimant. Charles N. Stockwell, Defense Finance and Accounting Service, Denver, CO, appearing for the Department of Defense. VERGILIO, Board Judge. The claimant, Mr. Robert L. Sprute, a Department of Defense civilian employee during the time in question, seeks to recover for expenses incurred in 1993, incident to a permanent change of station. The agency reimbursed him a portion of the realty commission for his sale of residence--6% of the sale price, not the 7% Mr. Sprute incurred. The information submitted does not demonstrate that 7% is an amount generally charged in the locality of his old duty station. Accordingly, further compensation is not required under the regulations. Mr. Sprute also claims temporary quarters subsistence expenses (TQSE) for his wife and son, who remained at the old duty station in a rented duplex, occupied after the sale of residence for approximately seven months before proceeding to the new duty station. The claimant seeks TQSE for a sixty-day period falling within the seven-month period. The Board concludes that Mr. Sprute is entitled to portions of the claimed TQSE, the entirety of which the agency denied. General background In mid-January 1993, the agency notified Mr. Sprute of an impending permanent change of station transfer from North Dakota to Utah. On February 25, Mr. Sprute signed the transportation agreement with a reporting date of September 30. On April 26, the agency issued his travel authorization, which expressly authorized reimbursement of real estate expenses and TQSE for sixty days and transportation of dependents (wife and son). On May 1, Mr. Sprute sold his home. Broker's fees or real estate commission In selling the residence at the old duty station, the claimant incurred a real estate commission of 7% of the selling price. The agency approved reimbursement of 6% of the selling price, with the explanation that the rate is based on the fact that approximately 70% of the homes for sale in the given area, in the price range of that sold, had a 6% or less real estate commission. The claimant has submitted letters from two real estate companies in the area. One states that the writer is unaware of any standard or set fee; it states no range of rates used by that individual or real estate company. The other, from the realtor used, specifies that commissions are negotiable, and, further, that her commission on properties can fluctuate from 7% to 12%. The letter does not indicate otherwise what rates may be generally charged in the area. Mr. Sprute, as a civilian employee of the Department of Defense, was subject to the Department's Joint Travel Regulations (JTR). The JTR provision which governs reimbursement of the requested fees states: "A broker's fee or real estate commission paid by the employee for services in selling his/her residence is reimbursable, but not in excess of rates generally charged for such services by the broker or by brokers in the locality of the old duty station." JTR C14002.A.1. The agency has acted reasonably in limiting the reimbursed fee to 6% of the selling price of the property. Although the claimant paid a fee of 7%, he has not demonstrated that the 7% figure is a rate generally charged in the locality. TQSE for dependents Upon selling his home on May 1, Mr. Sprute rented and moved into a duplex with his wife and son (who has a birth date of August 1, 1972). Mr. Sprute had his household goods delivered to the duplex. The three resided in the duplex until September 7, when Mr. Sprute departed for Utah; his wife and son remained at the duplex. On September 11, Mr. Sprute established temporary quarters for himself at his new duty station. To the agency, he submitted a claim for his temporary quarters; he received payment on November 8. Although the period covered falls within the sixty-day period found in his travel authorization, the materials submitted to this Board do not include his own TQSE claim, do not indicate the ending date for his own TQSE claim, and do not specify when he obtained permanent quarters. Mr. Sprute submitted a claim for TQSE for his wife and son at the duplex in North Dakota for the period beginning on September 11 and ending on November 10. The submission contains three receipts from a real estate company for what is described as rent; the dates and amounts are: September 3: $382.84; October 1: $450; and October 25: $450. The submission also contains four sheets with entries by date for meal costs and for laundry and dry cleaning. The sheets indicate dependent (as opposed to employee), but do not identify whether a sheet is for the wife or son. Each of two sheets has entries for September 11 through October 10, inclusive (the first thirty days); the amounts total $702.61 and $569.38. The first of these sheets lists a daily cost of $19.40 for lodging for September 11 through 30, and of $15.00 for lodging for October 1 through 10. Each of two sheets has entries for October 11 through November 10, inclusive (the following thirty-one days); the amounts on these sheets total $717.13 and $560.10. The materials provided to the Board do not specify a total dollar figure for the claimed TQSE for the wife, apart from the son. The agency denied, in its entirety, the claim for TQSE for the dependents. In resolving the claim, the agency focused on particular circumstances--the wife and son had been living in the duplex with their household goods, beginning no later than June through December, when they moved to Utah. The agency concluded that the duplex did not qualify as temporary quarters--the dependents lived there for three months before the claimed period and household goods furnished the duplex for at least six months-- before, during, and after the claimed recovery period. The JTR govern reimbursement for the requested TQSE claim. The JTR specify that, 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. JTR C13000. Through provisions dealing with the period of eligibility for TQSE, one may further discern what constitutes temporary quarters: To be eligible for the TQSE allowance, occupancy of temporary quarters must begin not later than 30 days from the date the employee reported for duty at the new PDS; or, if not begun for claim purposes during this period, not later than 30 days from the date on which dependents vacate the residence at the old PDS. . . . The period of time allowed for TQSE will begin for the employee and all dependents when either the employee or any dependent begins the period of use of such quarters for which a claim for reimbursement is made. The time period will run concurrently for the employee and all dependents. The employee may occupy temporary quarters at one location while dependents occupy quarters at another location. . . . The period of eligibility will terminate when the employee or any dependent occupies permanent residence quarters or when the authorized period of time expires, whichever occurs first. The use of temporary quarters for subsistence expense purposes under these provisions may begin as soon as the employee's transfer has been authorized and the written transportation agreement has been signed. JTR C13005. These regulations permit a claimant to select the period of TQSE for reimbursement purposes. The selection of the start date of TQSE affects the employee and dependents because the periods for each run concurrently. Upon selling the permanent residence at the old duty station and moving into the duplex, the duplex qualified as temporary quarters. The agency has not suggested, and the information submitted does not indicate, that the duplex was rented with any expectation that it would constitute permanent quarters or that it would be occupied on other than an interim basis until a move to the new duty station. The movement of household goods into the duplex and the length of the limited stay are not determinative in a reasonable determination under the regulations. Mr. Sprute exercised discretion in selecting the start date for the TQSE period for himself and dependents. As of September 11, it cannot be said that his dependents were in other than temporary quarters. Therefore, Mr. Sprute is entitled to reimbursement of reasonable, allowable expenses incurred by his dependents. The claim as presented may not be paid in full. Until Mr. Sprute provides the agency with documentation and support sufficient to address the requirements of the regulations referenced below, he is entitled to no relief. Amounts in the claim incurred by the son must be disallowed. The JTR defines, in Appendix A, the term "dependent" to include a child under twenty-one years of age at the time the employee reports for duty at the new permanent duty station. At the time Mr. Sprute reported for duty at the new permanent duty station, his son was not a "dependent" under the JTR definition, being no longer under twenty-one years of age. (Mr. Sprute has not suggested that the son was physically or mentally incapable of self-support, conditions which enable a child to qualify as a dependent regardless of age.) Accordingly, recovery for his expenses is not permitted. Mr. Sprute is entitled to recover TQSE for expenses incurred by his wife. The recovery is limited to a maximum of sixty days (not the sixty-one days of expenses reflected in the submissions). However, if Mr. Sprute obtained permanent quarters at any time during that period, TQSE reimbursement ceases as of that date for himself and his wife. The fact that Mr. Sprute sought his own TQSE only through October, at the latest, suggests that the period of permissible TQSE allowance came to an end before the sixty-day period. JTR C13005 ("The period of eligibility will terminate when the employee or any dependent occupies permanent resident quarters . . . ."). The apparent attempt of Mr. Sprute to allocate the full rent for September to the twenty-days of that month within the first thirty-day period is unavailing. Such an allocation misstates daily costs. The Sprutes resided in the duplex for the first ten days of September, before the claimed TQSE period. The regulations do not permit them to have lived there, for those ten days, at the expense of the Government without the TQSE period beginning. The agency must make a determination as to the reasonableness of amounts reimbursed and may seek further documentation in accordance with regulations. Moreover, any reimbursement is limited by the maximum permitted for the appropriate portion of the first thirty-day period and of the next thirty-day period, if any. JTR C13007. Mr. Sprute is entitled to recover TQSE for his wife to the extent that he can demonstrate reimbursement in accordance with the regulations. ____________________________ JOSEPH A. VERGILIO Board Judge