Board of Contract Appeals

                    General Services Administration

                         Washington, D.C. 20405

 

 

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                             July 14, 2000

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                            GSBCA 15297-RELO

 

 

                   In the Matter of ANTHONY A. ACERRA

 

 

        Anthony A. Acerra, Piedmont, SC, Claimant.

 

        Judy Hughes, Travel  Policy, Defense Finance  and Accounting

   Service, Columbus, OH, appearing for Department of Defense.

 

   NEILL, Board Judge.

 

        Claimant  in this case,  Mr. Anthony  Acerra, is  a civilian

   employee  of  the  Department  of Defense.    As  a  result  of a

   permanent change  of station, he  and his family moved  from Port

   Jefferson Station, New York, to  Greenville, South Carolina.  Mr.

   Acerra  has  asked  us to  review  his  agency s disallowance  of

   certain  closing  costs  associated  with  the  purchase  of  his

   residence  in Greenville.   The  claimant  has presented  us with

   nothing  which  convinces  us  that  the  agency s determinations

   regarding his  claim were incorrect.   We, therefore,  affirm the

   agency s ruling and deny the claim.  

 

        The  report  filed  by the  Defense  Finance  and Accounting

   Service (DFAS) explains that, in reviewing Mr. Acerra s claim for

   expenses  in  connection with  the purchase  of his  residence in

   Greenville, his agency  denied a total of $7560.   The disallowed

   items were as follows:  

 

        Legal and related costs:   $10 denied owing to the lack

        of any receipt;

        FHA  or  VA  application  fee:  $  275,  not  shown  on

        settlement statement;

        Certifications:  $3422,   not  itemized  or   shown  on

        settlement statement;

        State  tax   stamps:  $331.50,   shown  on   settlement

        statement as seller s expense;

        Credit report: $20, $5 shown on settlement statement as

        seller s expense and     no receipt  for the  remaining

        $15;

        Incidental expenses:  $3218, not itemized  or shown  on

        settlement statement;

 

        Escrow  agent s fee:  $125,  not  shown  on  settlement

        statement;

        Title insurance:  $159, disallowed  owing to  its being

        for owner s coverage.

 

        In asking  the agency  to reevaluate  his claim,  Mr. Acerra

   pointed out that  his share of the closing costs for the purchase

   of  his  residence  was  technically  paid  by  the  seller   but

   ultimately by himself since it  was agreed that the selling price

   and the  necessary financing  would be  increased to  cover these

   expenses.  Thus,  he contended, the money for  closing costs was,

   in effect, borrowed and the ultimate liability for paying it back

   rests  with him. Mr. Acerra s agency remained unpersuaded by this

   argument.  The  case has, therefore, been referred  to this Board

   for resolution.   

 

        We find that  the argument raised by Mr.  Acerra in response

   to the disallowances  in question is of little or no relevance to

   the  actual  objections  raised  by his  agency.    The  agency s

   principal concern with  the disallowed  expenses is  the lack  of

   receipts and itemization.  The argument that these  expenses were

   somehow  paid through  an increase  in the  selling price  of the

   house does nothing to address this concern.

 

        It is of course true  that, under certain circumstances,  an

   employee may be reimbursed for  certain closing costs when it can

   be demonstrated that they were intentionally included in the cost

   of the  house.  See Marion L. Ladd,  GSBCA 15138-RELO, 00-1 BCA  

   30,890.  This, however, requires  a showing that: (1) the closing

   costs were clearly discernible and separable from the  price paid

   for the house, (2) both the seller and the purchaser regarded the

   costs as having been paid by the purchaser, and (3) documentation

   establishes the amount  of the closing costs  and the purchaser s

   liability for them.  Jacquelyn B. Parish,  GSBCA 15085-RELO, 00-1

   BCA   30,605.  

 

        DFAS  in its report  (a copy  of which  was provided  to the

   claimant) makes it quite clear that it is aware that,  under well

   defined circumstances, employees can sometimes be reimbursed  for

   closing costs included  in the cost of the  houses they purchase.

   DFAS, however, has also noted  in its report a continuing concern

   over the lack of receipts  and itemization regarding Mr. Acerra s

   disallowed expenses.   In his  reply to this report  the claimant

   still has  done nothing  to allay this  concern.   Rather he  has

   provided us with documentation demonstrating that, at settlement,

   the final  purchase price of  his home in Greenville  was $11,300

   more than the original  contract price.  This is not  enough.  If

   the expenses  themselves  cannot  be  adequately  identified  and

   documented, it is obvious that Mr. Acerra will be unable  to make

   the  showings required of  one seeking reimbursement  of expenses

   allegedly included in the purchase price of a home.  

 

        As the  claimant of payment from the  Government, Mr. Acerra

   has the burden of showing us  why he should prevail.  Board  Rule

   401(c) (48  CFR 6104.1(c) (1999));  Thomas W. Burt,  GSBCA 14537-

   RELO, 98-2 BCA   29,751; Michael  S. Knezevich, GSBCA 14398-TRAV,

   98-1 BCA    29,607;  Paul  B. Garvey, GSBCA 13658-RELO,  97-1 BCA

     28,690  (1996).  Given  Mr. Acerra s failure  to do  so in this

   case, we affirm the agency s determination and deny the claim.  

    

 

 

   ___________________________

 

                                           EDWIN B. NEILL

                                           Board Judge