# Glenn Weible and Patricia Weible v. United States

> Court of Appeals for the Ninth Circuit · April 15, 1957 · 244 F.2d 158

URL: https://www.frixlaw.com/law-library/cases/9445601

## Case

- **Full name:** Glenn WEIBLE and Patricia Weible, Appellants, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 15, 1957
- **Citations:** 244 F.2d 158; 51 A.F.T.R. (P-H) 255; 1957 U.S. App. LEXIS 5109
- **Precedential status:** Published
- **Opinion:** Dissent by Lemmon
- **Judges:** Lemmon, Pope, Ross
- **Cited by:** 83 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445601

## How later opinions describe it (automated extraction)

- finding that taxpayer was bona fide resident even though trial court found that taxpayer never intended to become a resident (reversing Weible v. United States, 1956 U.S. Dist. LEXIS 4419 (S.D. Cal. 1956))
- holding that the question of whether a taxpayer was a bona fide resident was "a mixed question of law and fact"

## Opinion text

LEMMON, Circuit Judge.
I dissent.
The effect of the majority opinion is to permit an American citizen temporarily present in Australia who escaped liability for income tax in that country through the claim there made that he resided in the United States to avoid payment of income tax here through the assertion that he was resident of Australia during the same period of time. Such a result should be avoided if possible.
The majority appears to concede that intent is one of the elements of residence. The intention is to remain at a place permanently or for an indefinite time.
Like other questions of fact, residence may be established by circumstantial evidence. The circumstances set forth in the majority opinion supplemented by those in this opinion adequately sustains the trial court’s finding: at least that findings and the judgment thereon are not clearly erroneous.
The majority opinion states that Weible agreed with his employer “to remain permanently outside the United States in the performance of these duties except for short periods of training and consultation”. This is inaccurate.
It is more accurate to state, in the words of Michael Harris, vice president and head of the export division of Max Factor & Co., in answer to a question as to the nature of Weible’s employment, “He was to come in for a period of preliminary training, to sort of have a refresher course and immediately go overseas, with the first installation to be in Australia, and from then on, whenever required.” There was no written contract. “We operated on a very informal basis.” As to the length of sojourn in *171 any foreign country, Harris testified, “For each assignment it was completely indefinite, because we had no idea how long it would take to establish a plant. He would stay with an operation until he thought it was on its feet and ready to move to another location.” Weible testified that there was no specific understanding with respect to the length of time of his foreign assignments.
When Weible left for Australia his then wife remained in California. It had been decided that she would maintain the apartment they occupied in North Hollywood. The household furniture was left with her. While absent from California he purchased her joint interest in an unimproved lot located in Los Angeles and during the tax periods in question made substantial payments on a trust deed which encumbered the property. In Australia he rented a furnished apartment, supplementing the furnishings by certain household goods which he purchased there. There he employed a housekeeper. During his absence he maintained a bank account in Los An-geles in which his employer deposited his monthly salary checks. In Australia he secured exemption from the Australian income tax through his claim in writing that he was a non-resident of Australia and that he was a resident of the United States and that he contemplated leaving Australia in November of 1947.
The operations in Australia required a longer time than was anticipated and so he remained in that country until October, 1948. He married his present wife in the United States, though he had met her during his stay in Australia. He kept up his membership in a private club in Los Angeles during the years he remained outside the United States.
Weible did not buy or establish a permanent home in any of the countries to which his work took him.
It is apparent that Weible’s tour of duty in a foreign country was temporary, though the length of his stay was uncertain.
The majority attempts to belittle the importance and significance of Exhibit “A”, Weible’s application through which he claimed and obtained exemption under Australian taxing statutes and in which application he stated that his place of residence was the United States and that he intended to return to the United States within six months to reside permanently. This statement has much bearing upon the bona tides of the statement of Weible’s claim of residence in Australia and in the other countries in which he sojourned. His statement truthfully characterized his stay in Australia. It was not his intention to remain for a definite period of time. It was his intention to move from one foreign country to another in connection with his duties. He could not know the precise date of his departure from a foreign country, but he did know that upon completion of his mission there he would be assigned to another foreign country after a brief intermission in the United States. The trial judge correctly found that his status was that of a transient or sojourner.
The exemption runs in favor of “an individual citizen of the United States who establishes to the satisfaction of the Commissioner that he is a bona fide resident of a foreign country or countries during the entire taxable year, amounts received from sources without the United States,” etc. The taxpayer failed to so satisfy the Commissioner and the court below decided that he had not sustained the burden of proof which he bore. The evidence clearly supports the conclusion that Weible had merely “a floating intention, indefinite as to time”.
The majority opinion states that the question of residence is a mixed question of law and fact; that this court is not bound by the “clearly erroneous” rule; and that we may substitute our own conclusions upon the facts and law. 1 ' *172 However, in any event, the conclusions which the trial judge drew should be accorded much weight and should not be brushed aside in the cavalier manner followed by the majority. In my view the ruling of the trial judge was proper in the light of the facts and circumstances which were developed at the trial and the judgment should be affirmed.
. That this is against the weight of authority, see 5 C.J.S., Appeal and Error, § 1642d. I agree, nevertheless, that where, as here, the evidence is not in conflict the conclusion of law drawn therefrom is reviewable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445601. Public record. Not legal advice.