Board of Contract Appeals General Services Administration Washington, D.C. 20405 _____________________ July 26, 2000 _____________________ GSBCA 15294-RELO In the Matter of IRA A. C. PEETS Ira A. C. Peets, Fredericksburg, VA, Claimant. Donald M. Suica and Beth B. Sturgess, Office of Chief Counsel, Internal Revenue Service, Department of the Treasury, Washington, DC, appearing for Department of the Treasury. DeGRAFF, Board Judge. Claimant challenges the agency's decision that his household goods weighed in excess of 18,000 pounds, and also challenges the daily rate that the agency used to reimburse him for hotel expenses he incurred when he returned to the United States from an assignment in a foreign country. Because claimant has not established that the agency's determination of the net weight of his household goods was in error and has not established that the agency used the wrong daily rate in order to reimburse him for his hotel expenses, we deny the claim. Background In 1996, the Internal Revenue Service (IRS) transferred Ira Peets to Greece in order to fulfill the terms of a technical assistance agreement entered into between the IRS and the Greek Ministry of Finance (GMOF). In August 1996, Bailey s Moving, an agent for Allied Van Lines, packed Mr. Peets household goods and moved them to a holding facility. One of the moving company s employees advised Mr. Peets that if his household goods weighed in excess of 18,000 pounds, someone would let him know. Mr. Peets never heard anything more from the moving company about the weight of his goods. Bailey's Moving prepared an inventory of the items that it picked up from Mr. Peets. These included a sofa, tables, chairs, lamps, two televisions, a piano, a dresser, beds, rugs, books, kitchenware, pictures, light fixtures, and many other household items. The inventory also included boxes of marble tile. In mid-December 1996, Mr. Peets household goods were moved from the holding facility to Colonial Storage. In February 1997, Allied Van Lines submitted a voucher to the IRS for moving and storing 11,400 pounds of goods. Also in February 1997, Colonial Storage billed the IRS for storing 21,873 pounds of household goods. The IRS approved both bills for payment. After Mr. Peets submitted his claim, the IRS contacted Colonial Storage in an attempt to resolve the discrepancy between the weight shown on the Allied Van Lines voucher and the weight shown on the Colonial Storage voucher. According to Colonial Storage's records, there were four boxes of marble floor tile included in Mr. Peets' household goods and they weighed 1,534 pounds, 2,776 pounds, 2,971 pounds, and 2,117 pounds, for a total of 9,398 pounds. Colonial Storage's records show that the marble floor tile plus Mr. Peets' other household goods weighed 21,873 pounds. Bailey's Moving is no longer in business, so the IRS was not able to ask anyone from that company why the Allied Van Lines voucher shows that Bailey's Moving moved and stored 11,400 pounds. If the Allied Van Lines voucher is correct, this would mean that all of Mr. Peets' household goods, excluding the marble tile, weighed only 2,002 pounds. Colonial Storage suggested that Bailey's Moving might have used two trucks to pick up Mr. Peets' goods and perhaps the voucher from Allied Van Lines is for only one truck. In fact, Bailey's Moving moved Mr. Peets' household goods on two different days. Mr. Peets was in Greece until October 31, 1999. He explains that he could not move into his house in Virginia as soon as he returned from Greece because he had leased it while he was away and it needed to be painted and repaired, and so he obtained a room in a hotel to use as temporary lodging. The hotel receipt shows that his first thirteen days in the hotel (October 31 through November 12), Mr. Peets paid a daily rate of $129 for the room, plus $18.71 per day for taxes. He remained in the room for thirty-five more days (through December 17), and for those days he paid a daily rate of $109, plus $15.81 per day for taxes. Mr. Peets household goods remained in storage until December 15, 1999. When Colonial Storage delivered Mr. Peets household goods to his house in Virginia, the voucher that it submitted to the IRS showed the weight of the goods as 21,873 pounds. The IRS sent Mr. Peets two bills, the first for $632.46 and the second for $3666.78, for excess weight of 3,873 pounds. The first bill was for transporting Mr. Peets household goods to his home, and the second bill was for storage charges. The IRS told Mr. Peets that it would not reimburse him for all of the expenses that he incurred for lodging and lodging taxes. The IRS decided that Mr. Peets should be reimbursed for $3540 of his claimed temporary lodging expenses. The agency based this amount upon a rate of $80 per day for lodging, meals, and incidental expenses incurred during the first thirty days in temporary quarters and a rate of $60 per day for nineteen additional days in temporary quarters.[foot #] 1 Mr. Peets asks that we review the IRS's decision to charge him for the excess weight of his household goods and its decision to limit his reimbursement for his hotel. Discussion The IRS assigned Mr. Peets to Greece pursuant to the Foreign Assistance Act, 22 U.S.C. 2385(d)(1994), which provides that individuals assigned in accordance with that authority will receive the allowances and benefits provided by the Foreign Service Act. According to the regulations applicable to Foreign Service Act personnel, the IRS correctly decided to charge Mr. Peets for the excess weight of his household goods, and also reimbursed him the correct amount for his hotel expenses. Household goods Mr. Peets eligibility to store his household goods while he was in Greece is controlled by Volume 6 of the Foreign Affairs Manual (FAM). 6 FAM 163a states that the shipment and storage allowance is established at the statutory limit of 18,000 pounds, net weight, and this statutory limit is found in 5 U.S.C. 5726(b) (1994 & Supp. IV 1998). Mr. Peets states that he does not know the weight of the goods that he had in storage, but he challenges the bills for excess weight for two reasons. First, he disputes the determination that his household goods weighed more than 18,000 pounds. Mr. Peets points out that an employee of Bailey s Moving told him that someone would contact him if the weight of his goods exceeded 18,000 pounds, and that no one ever contacted him. Also, the Allied Van Lines voucher shows that Mr. Peets household goods weighed 11,400 pounds. Second, Mr. Peets contends that he should not have to pay the excess weight charges because the IRS should have verified the Allied Van Lines voucher before Bailey's Moving went out of business, and should have notified him if his household goods weighed more than 18,000 pounds. Although Mr. Peets disputes that his household goods weighed more than 18,000 pounds, he has not shown clear and substantial evidence of error or fraud, and such evidence is necessary in order to set aside an agency's determination of net weight. Robert G. Gindhart, GSBCA 14288-RELO, 98-1 BCA 29,405 (1997). The fact that no one from Bailey's Moving ever contacted Mr. Peets about the weight of his household goods does not establish that the agency's determination of net weight was erroneous. ----------- FOOTNOTE BEGINS --------- [foot #] 1 Mr. Peets claimed that he spent forty-nine days in the hotel and the IRS reimbursed him for forty-nine days in the hotel, even though the hotel receipt in our record shows that he paid for only forty-eight days there. ----------- FOOTNOTE ENDS ----------- Perhaps the employee simply forgot to contact Mr. Peets, or perhaps he was not aware of the total weight of Mr. Peets' goods, or maybe he tried to contact Mr. Peets and failed. In any event, the lack of contact does not constitute clear and substantial evidence of error or fraud. There is a conflict between the Allied Van Lines voucher, which shows that Mr. Peets' household goods weighed 11,400 pounds, and the Colonial Storage voucher, which shows that the goods weighed 21,873 pounds. Colonial Storage's records show, however, that the boxes of marble floor tile stored by Mr. Peets weighed 9,398 pounds. Mr. Peets mistrusts Colonial Storage's records concerning the weight of the marble tile because he had not seen those records before he submitted his claim and because they are not stamped as Mr. Peets thinks they should be. Mr. Peets suggests that the records were fabricated after he submitted his claim. The records have Colonial Storage's name and address imprinted on them. The records show the shipper is "Peets, I." and are dated and signed by a "weighmaster." The fact that Mr. Peets had not seen these records before he submitted his claim does not establish that the records are unreliable, and there is no evidence to suggest that the records were manufactured in response to this claim. The records do not appear to us to be irregular, so as to establish clear and substantial evidence of error or fraud. Mr. Peets also says that Colonial Storage's records must be inaccurate because the boxes of floor tile could not have weighed as much as the records indicate. Again, the records appear to be regular on their face, and Mr. Peets has no records to show what the boxes of tile weighed, as stored. Finally, if the Allied Van Lines voucher is accurate, then the remainder of Mr. Peets' household goods weighed only 2,002 pounds, and this is not likely considering the items listed on the Bailey's Moving inventory. Although Mr. Peets suspects that Colonial Storage's records are inaccurate, his suspicions do not constitute the evidence needed in order to set aside the IRS's determination of net weight. Mr. Peets says that the IRS should have verified the accuracy of the weight shown on the Allied Van Lines voucher before Bailey's Moving went out of business, and should have notified him if his household goods weighed more than 18,000 pounds. The IRS could not have foreseen that Bailey's Moving would no longer be in business when Mr. Peets submitted his claim, and it was not obligated to try to verify the accuracy of the Allied Van Lines voucher any sooner than it did. We have noted previously that although agencies should, in the interest of fairness, advise employees when their household goods weigh more than the statutory maximum, the law provides that agencies will pay for shipping and storing no more than 18,000 pounds of a transferred employee's household goods. Robert K. Boggs, GSBCA 14948-RELO, 99-2 BCA 30,491. Neither we nor the IRS has the authority to waive this statutory provision, and so Mr. Peets is liable for the cost of shipping and storing household goods in excess of 18,000 pounds. Mr. Peets has not provided us with the clear and substantial evidence needed in order to set aside the IRS's determination that his household goods weighed 21,873 pounds. Because the statute provides that agencies will pay for shipping and storing no more than 18,000 pounds of goods, Mr. Peets is liable for the cost of shipping and storing 3,873 pounds of household goods. Hotel expenses Mr. Peets eligibility for temporary lodging expenses is controlled by Volume 3 of the FAM, as implemented by Chapter 250 of the Department of State Standardized Regulations (DSSR). According to Chapter 250, Mr. Peets was eligible for a home service transfer allowance, which includes a payment for subsistence expenses to help offset the costs of meals and lodging. DSSR 251.1, 251.2c. The statutory authority for this allowance is found at 5 U.S.C. 5924 (1994). The DSSR explains that the allowance for Mr. Peets first thirty days in the hotel is a daily rate not in excess of the standard per diem rate for the continental United States. For the second thirty days, the allowance is 75% of the standard per diem rate. When Mr. Peets stayed in the hotel, the standard per diem rate for the continental United States was $50 per day for lodging, not including taxes, and $30 per day for meals and incidental expenses. 41 CFR, ch. 301, App. A (1999). The IRS reimbursed Mr. Peets in accordance with these rates.[foot #] 2 Mr. Peets says that the terms of the technical assistance agreement should control his entitlement to reimbursement, and he reads the agreement to say that all of his relocation expenses would be reimbursed by the GMOF, without regard to the limitations set out in the DSSR. Mr. Peets relies upon page 14 of attachment 3 of the agreement, but that page does not say anything concerning the reimbursement of any specific expenses. Page 14 is simply an estimated budget for the entire technical assistance program and consists of a list of several broad categories of expenses (salaries/other benefits, travel and related expenses, etc.) and a lump sum amount budgeted for each category.[foot #] 3 The technical assistance agreement does not say that the GMOF would reimburse all of Mr. Peets' expenses. Instead, the agreement states that the GMOF would ----------- FOOTNOTE BEGINS --------- [foot #] 2 The DSSR provides that lodging taxes may be reimbursed separately, DSSR 252.3, but the IRS has not implemented this provision. [foot #] 3 Mr. Peets provided us with a sheet of paper that he says is a complete funding breakdown of the estimated budget set out on page 14 of the agreement. Although the breakdown sheet shows that a home service transfer allowance was included within the travel and related expenses category shown on page 14, it does not show what amount would be paid per day for lodging expenses. ----------- FOOTNOTE ENDS ----------- reimburse the IRS for the costs that the IRS incurred in providing services pursuant to the agreement. The agreement does not provide the IRS with the authority to incur costs without regard to applicable statutes and regulations, and those statutes and regulations authorize the IRS to incur the cost of a home service transfer allowance as provided in Chapter 250 of the DSSR. Mr. Peets also says that the FAM does not apply unless the technical assistance agreement either fails to resolve an issue or defers to the FAM. He also says that the FAM does not apply when the IRS is being reimbursed for its employees expenses. The technical assistance agreement does not suggest that it was intended to override either the DSSR or the FAM. As explained in the preceding paragraph, the agreement states that the GMOF would reimburse the IRS for the costs that the IRS incurred, and does not provide the IRS with the authority to incur costs without regard to applicable statutes and regulations. The IRS reimbursed Mr. Peets for his temporary lodging expenses in accordance with the provisions of the applicable regulations. Decision The claim is denied. __________________________________ MARTHA H. DeGRAFF Board Judge