# Petition — Matheson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 429 U.S. 823

## Text

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MAY 12 1976 ’

MICHAEL KODAK, JR., CLERK

IN THE

Supreme Court of the United States
OCTOBER TERM, 1975

No. 75-1651

WILLIAM L. MATHESON, Executor of the Will of
Dorothy Gould Burns, Deceased,

Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

Joun S. Martin, JR.

Martin, OBERMAIER & MorvILLo
1290 Avenue of Americas

New York, New York 10019
Attorneys for Petitwner

TABLE OF CONTENTS

PAGE
SS 0 iia 5 an aie ed Oued Cue din asian ate 1
I Ain dn Ge han Skin dndiksbidaneddeneobessas 2
SP SP eT eT eee et Pye per 2
EE GE i ccicin Hidwdedxeucvbdueoasndeses 2
PE 6 cncuecnnes hd in kédeke cavibssanas 4
Reasons For Granting The Writ .................. 8

Pornt I—The holding of the Court below that a citi-
zen who applies for naturalization in a foreign
country is not automatically expatriated should
be reviewed by this Court ..................-. 8

Pornt II1—The alternative holding of the Court below
that principles of estoppel and laches prevent
Mrs. Burns’ Executor from correcting Mrs.
Burns’ mistake of law as to her true citizenship
is in conflict with all prior precedents ......... 12

A. The Court of Appeals’ Finding that Mrs.
Burns’ Executor Was Equitably Estopped
from Asserting She Had Lost Her United
States Citizenship Is Contrary to Settled Au-
SEU Pickéaeccdevardescucbsnawadesseves 13

B. The Application of the Doctrine of Laches to
the Timely Filing of Claims for Tax Refunds
by Mrs. Burns’ Estate Is an Unprecedented

Action Meriting Review by this Court ...... 16
I i iy sien pabiecdbs + beeen sodekesiads 18
Appendix A—Opinion of Court of Appeals ........ la

Appendix B—Opinion of District Court .......... 25a

ii TABLE OF CASES

TABLE OF CASES

Afroyim v. Rusk, 387 U.S. 253 (1967) ...2, 7,8, 9, 10, 11, 12
Bennet v. Helvering, 137 F.2d 537 (2d Cir. 1943) ... 14
Commissioner v. Mellon, 184 F.2d 157 (3d Cir. 1950) 15
Commissioner v. Union Pac. R. Co., 86 F.2d 687 ....14,15

Delmore v. Brownell, 236 F.2d 598 (3d Cir. 1956) ... 14
Ecology Center of Lowisiana, Inc. v. Coleman, 515
rr rr, CD on av caenednaaneacess 16
Edsell v. Mark, 179 Fed. 292 (9th Cir. 1910) (per
Es week Lh as Cd babe eud bated kbetcdee 15
First National Bank of Montgomery v. United States,
280 F.2d 818 (Ct. Cl. 1960) ............. 00 16
Helvering v. Brooklyn City R. Co., 72 F.2d 274 (2d
BUSES uaa. cn dues Su tuts ee ences 14

Helvering v. Schine Chain Theatres, 121 F.2d 948 (2d

eee vee eeC Uhh edicecick ss dee 14, 15
Helvering v. Williams, 97 F.2d 810 (8th Cir. 1938) .... 14
Holmberg v. Armbrecht, 327 U.S. 392 (1946) ......... 16

Hull v. Commissioner, 87 F.2d 260 (4th Cir. 1937) .. 15

Kingston Products Corp. v. United States, 368 F.2d
mee, GOR, Gh, BBD nc ccc cccccs cd kbne PRU UKs é. 16

Lee Hon Lung v. Dulles, 261 F.2d 719 (9th Cir. 1958) 14

Lewis v. Realty Equities Corp. of New York, 396
F.Supp. 1026 (S.D.N.Y. 1975)

Lim v. Mitchell, 431 F.2d 197 (9th Cir. 1970)
Miller v. Sinjen, 289 Fed. 388 (8th Cir. 1923) ...... 14, 15

Petgnand v. Immigration and Naturalization Service,
ee ae Oe CN Ee BUED co ccccccccccccscccs 13, 15

TABLE OF CASES iii
PAGE
Perez v. Brownell, 356 U.S. 44 (1958) ............ 9, 10, 11

Reconstruction Finance Corp. v. Harrisons & Cros-
field, 204 F.2d 366 (2d Cir.) cert. denied, 346

EE EE CK ah is déceU ids dtbiws dvecnses 16
Revedin v. Acheson, 194 F.2d 482 (2d Cir. 1952) .... 9
Rogers v. Bellet, ge & Ff. | 8, 10
Ross v. Commissioner, 169 F.2d 483 (1st Cir. 1948) .. 14
Russell v. Todd, ie benth yee 608 16

Salvage v. Commissioner, 76 F.2d 112 (2d Cir. 1935)
aff’d sub nom. Helvering v. Salvage, 297 U.S. 196

SED: Goud veCabatats Wiel ehecew ee eseeneeeeses 13, 14
Savorgnan v. United States, 338 U.S. 491 (1950) .... 2,9,
12,17

Shell v. Strong, 151 F.2d 909 (10th Cir. 1945) ...... 16

Simons v. United States, 452 F.2d 1110 (2d Cir. 1971) 17

Stella v. Graham-Paige Motors Corp., 259 F.2d 476
(2d Cir. 1958), cert. denied, 359 U.S. 914 (1959) . .14, 15

Stoddard v. Commissioner, 141 F.2d 76 (2d Cir. 1944) 17
United States v. Albertson Co., 219 F.2d 920 (9th Cir.

EE Wan ade desesedcredecescescesensntcosocese 14
United States v. Rexach, 482 F.2d 10 (1st Cir.), cert.
denied, 414 U.S. 1089 ......... cece cece eeeeeee 17
United States v. Watkins, 165 F.2d 1017 (2d Cir.
DEE 6 cbacpuscedshewGnes ecb oneeveceesscevcces 13
Urtetiqui v. D’Arcy, 34 U.S. 692 (1835) ...........- 15
Wong Kwok Sui v. Boyd, 285 F.2d 572 (9th Cir.
SED canalisteedenchedicctvecuccecensescecess 13, 14

Young v. UnitaR States, 203 F.2d 686 (8th Cir. 1953) 16

iv TABLE OF CASES

STATUTES AND RULES

PAGE
Nationality Act of 1940, Section 401 (8 USCA § 801)

2, 3, 4, 8,9
Rule 60(b), Federal Rules Civil Procedure ......... 17

MISCELLANEOUS

Duvall, Expatriation under United States Law, Perez
to Afroyim: The Search for a Philosophy of
American Citizenship, 56 Va.L.Rev. 408 ........ 10

MacDougal, Lasswell and Chen, The Protection of the
Individual in External Areas, 83 Yale. L.J. 900 10

In THE

Supreme Court of the United States
OCTOBER TERM, 1975

No.

sé.
as

Wu L. Marueson, Executor of the Will
of Dorothy Gould Burns, Deceased,
Petitioner,
v.

Untrep States or AMERICA,

Respondent.

”*
7

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT

William L. Matheson, Executor of the Will of Dorothy
Gould Burns, Deceased, petitions for a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Second Circuit entered in this case on
March 3, 1976.

Opinions Below

The opinion of the Court of Appeals (App. A p. la) is
not yet reported. The opinion of the District Court (App.
B p. 25a) is reported at 400 F. Supp. 1241.

Jurisdiction

The opinion and judgment of the Court of Appeals were
entered on March 3, 1976. The jurisdiction of the Court is
invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. Whether the court below was correct in holding that
this Court’s decision in Afroyim v. Rusk, 387 U.S. 253
(1967), overruled the earlier holding of Savorgnan v.
United States, 338 U.S. 491 (1950), that a United States
citizen who applies for naturalization in a foreign country
automatically loses American citizenship?

2. Whether the estate of a citizen, who automatically
lost United States citizenship by applying for foreign
nationality but continued to believe she was a citizen and
to pay United States taxes, is barred by the doctrines of
estoppel or laches from asserting that the decedent had
lost United States citizenship when she obtained foreign
nationality?

Statute Involved

Section 401 of the Nationality Act of 1940 (54 Stat.
1168-69) provides:

Sec. 401. A person who is a national of the United
States, whether by birth or naturalization, shall lose
his nationality by:

(a) Obtaining naturalization in a foreign state,
either upon his own application or through the natu-
ralization of a parent having legal custody of such
person: Provided, however, That nationality shall
not be lost as the result of the naturalization of a
parent unless and until the child shall have attained

the age of twenty-three years without acquiring per-
manent residence in the United States: Provided
further, That a person who has acquired foreign na-
tionality through the naturalization of his parent or
parents, and who at the same time is a citizen of the
United States, shall, if abroad and he has not here-
tofore expatriated himself as an American citizen by
his own voluntary act, be permitted within two years
from the effective date of this Act to return to the
United States and take up permanent residence
therein, and it shall be thereafter deemed that he
has elected to be an American citizen. Failure on the
part of such person to so return and take up per-
manent residence in the United States during such
period shall be deemed to be a determination on the
part of such person to discontinue his status as an
American citizen, and such person shall be forever
estopped by such failure from thereafter claiming
such American citizenship; or

(b) Taking an oath or making an affirmation or
other formal declaration of allegiance to a foreign
state; or

(c) Entering, or serving in, the armed forces of a
foreign state unless expressly authorized by the laws
of the United States, if he has or acquires the nation-
ality of such foreign state; or

(d) Accepting, or performing the duties of, any
office, post, or employment under the government of
a foreign state or political subdivision thereof for
which only nationals of such state are eligible; or

(e) Voting in a political election in a foreign state
or participating in an election or plebiscite to deter-
mine the sovereignty over foreign territory; or

(f) Making a formal renunciation of nationality be-
fore a diplomatic or consular officer of the United

4

States in a foreign state, in such form as may be pre-
scribed by the Secretary of State; or

(g) Deserting the military or naval service of the
United States in time of war, provided he is convicted
thereof by a court martial; or

(h) Committing any act of treason against, or at-
tempting by force to overthrow or bearing arms
against the United States, provided he is convicted

thereof by a court martial or by a court of competent
jurisdiction.

Statement

Dorothy Gould Burns was born in the United States of
American parents in 1904. In 1919, she moved to join her

parents in Europe, and she never again established a
residence in this country.

On May 24, 1944, in Mexico, she married Archibald
Burns, who had been born in Mexico of Scottish parents
and was, therefore, a Mexican national.

After her marriage to Burns, she contacted a Mexican
attorney, Francisco Liquori, and told him “she wanted to
obtain her Mexican nationality . . . she intended to reside
in Mexico”. On December 21, 1944, Mrs. Burns signed an
application for Mexican citizenship prepared by Mr.
Liquori which stated in part:

‘“‘T herewith formally declare my allegiance, obedi-
ence and submission to the laws and authorities of the
Republic of Mexico; I expressly renounce all protec-
tion foreign to said laws and authorities and any right
which treaties or international law grant to foreigners,
expressly furthermore agreeing not to invoke with
respect to the Government of the Republic any right
inherent in my nationality of origin.’’

—

h)

On January 2, 1945, a certificate of Mexican nationality
was issued to Mrs. Burns by the Mexican Ministry of
Foreign Relations. Thereafter, Mrs. Burns’ name was re-
moved from the list of aliens maintained by the Ministry
of Interior, and she was issued a Mexican passport. In
1946 Mrs. Burns, who had one daughter from her marriage
to Mr. Burns, made application for ner oldest daughter,
Rolande de Graffenried, to immigrate to Mexico as the
daughter of a Mexican national. Mrs. Burns continued to
reside in Mexico until 1953, when she travelled to the south
of France, where she resided until her death on July 5,
1969.

After World War II had ended, Mrs. Burns travelled to
the United States and Europe. After finding the treat-
ment accorded to her while travelling on a Mexican pass-
port to be unsatisfactory and believing she would receive
better treatment if she travelled on an American passport,
she made application to the American Consulate in Mexico
City for a United States passport on May 2, 1947. The
passport application form contained in fine print the state-
ment that among other things, she never obtained naturali-
zation in a foreign state or had taken an oath or made an
affirmation or other formal declaration of allegiance to a
foreign state.“ A United States passport was issued to
her on May 21, 1947. This 1947 passport was extended in
1949 and again in 1951.

As a result of an application which she made on May 6,
1952, for a further extension of her United States passport,
the Department of State undertook, sua sponte, an inves-
tigation of Mrs. Burns’ Mexican citizenship. The Pass-
port Office was aware that Mrs. Burns had been issued a
certificate of Mexican nationality, and that it was the stated
policy of the Mexican Ministry of Foreign Relations, since

* A similar printed statement was contained on all of the sub-
sequent passport applications filed by Mrs. Burns.

6

at least 1942, not to issue a certificate of Mexican nationa!-
ity unless an applicant, such as Mrs. Burns, took an oath
of allegiance and made a renunciation of foreign national-
ity. Ultimately the Passport Office determined Mrs. Burns
was entitled to a passport, and it was continuously re-
issued or extended from time to time until her death in

1969.*

From 1956 on, Mrs, Burns filed United States income
and gift tax returns as if she were a citizen of the United
States. In this connection she paid approximately $63,000
more in income taxes and $127,000 more in gift taxes than
she would have been required to pay as a nonresident
alien.

Mrs. Burns died on July 5, 1969. The following Febru-
ary her Executor learned for the first time that Mrs. Burns
had signed the application for a certificate of Mexican
nationality in which she had pledged allegiance to the Re-
public of Mexico and renounced all citizenship foreign
thereto. On or about April 14, 1970, the Executor filed
claims for refund for United States income taxes and gift
taxes for the years 1966 through 1968, the only years for
which the statute of limitations had not then run. In addi-
tion, he filed on or about that date a final income tax return
for 1969 on the basis that Mrs. Burns was a nonresident
alien and he claimed a refund of overpayment of estimated
tax. The refunds for 1966 and 1969 income taxes were
promptly made without audit. Thereafter, an office audit
was conducted in connection with the claims for refund of
gift taxes for the years 1966 through 1968, and these claims
were disallowed.

* The determination of the Passport Office that Mrs. Burns
was entitled to a passport was made pursuant to 22 U.S.C. § 212
which provides:

‘*No passport shall be granted or issued to or verified for
any other persons than those owing allegiance, whether citizens
or not, to the United States.’’

7

On or before October 5, 1970, the defendant filed a non-
resident alien estate tax return with respect to Mrs. Burns’
estate. Between that date and October 5, 1973, an audit
was conducted and several issues were raised, including the
citizenship of Mrs. Burns at the time of her death. As a
result, a notice of deficiency was issued to the estate and,
on December 10, 1975, :he rixecutor filed his petition in the
Tax Court contesting the assessment of the deficiency and
moved to stay all proceedings with respect thereto.

In May of 1973 the Government brought this action to
recover the 1966 refund which it alleges was erroneously
made. On June 5, 1974, the Executor commenced a civil
action in the district court to recover the overpayments of
gift taxes for 1966, 1967 and 1968.

The district court granted summary judgment to the
Government in both actions, holding that under Afroyim
v. Rusk, 387 U.S. 253 (1967), Mrs. Burns’ application for
Mexican nationality did not automatically expatriate her,
and she did not lose her citizenship at the time because she
did not have a subjective intent to renounce United States
citizenship. The district court alternatively held that, if
Mrs. Burns did have a subjective intent to renounce her
United States citizenship, her estate was barred by the
doctrines of estoppel and laches from asserting she had
lost her citizenship at that time because thereafter she
represented to the Passport Office that she was a United
States citizen. The Court of Appeals affirmed.

8

REASONS FOR GRANTING THE WRIT

POINT I

The holding of the Court below that a citizen who
applies for naturalization in a foreign country is not
automatically expatriated should be reviewed by this
Court.

The basic question presented below was whether Dor-
othy Gould Burns lost her American citizenship in late
1944 and early 1945 when she sought and obtained Mexican
citizenship. It was the position of petitioner that Mrs.
Burns automatically lost her American citizenship in ac-
cordance with the express terms of two separate provisions
of the Nationality Act of 1940, which provides in relevant
part:

“A person who is a national of the United States
whether by birth or naturalization, shall lose his na-
tionality by:

(a) Obtaining naturalization in a foreign state,
either upon his own application or through the natu-
ralization of a parent hiving legal custody of such
person; * * * or

(b) Taking an oath or making an affirmation or
other formal declaraion of allegiance to a foreign
state; * * *.” 54 Stat. 1168-1169

The Court of Appeals concluded that under this Court’s
opinion in Afroyim v. Rusk, 387 U.S. 253 (1967), these
provisions of the Nationality Act could not constitutionally
be applied to Mrs. Burns because when she applied for
Mexican nationality, she did not have a subjective intent
to renounce her United States citizenship. Since Afroyim
has already been limited by this Court in Rogers v. Bellei,
401 U.S. 815 (1971), the Court should grant certiorari
here in order to resolve the question of the continuing

9

validity of Afroyim. Even if the Court is not prepared
to overrule Afroyim and return to the teaching of Perez
v. Brownell, 356 U.S. 44 (1958), it would be appropriate
for the Court to grant certiorari here to make clear that
Afroyim, which involved a provision of the Nationality
Act that made loss of citizenship the automatic conse-
quence of voting in a foreign election, should not be ex-
tended to the different provisions of the Act at issue here.

In Savorgnan v. United States, 338 U.S. 491, 499-500
(1950), this Court expressly rejected the argument that
for expatriation to occur the citizen who applies for for-
eign nationality must have a subjective intent to renounce
American citizenship:

“[T jhe acts upon which the statutes expressly con-
dition the consent of our Government to the expatria-
tion of its citizens are stated objectively. There is no
suggestion in the statutory language that the effect of
the specified overt acts, when voluntarily done, is
conditioned upon the undisclosed intent of the person
doing them.

* * *

“There is nothing . . .that implies a congressional
intent that, after an American citizen has performed
an overt act which spells expatriation under the word-
ing of the statute, he, nevertheless, can preserve for
himself a duality of citizenship by showing his intent
or understanding to have been contrary to the legal
consequences of such an act.” (Footnotes omitted.)
Accord, Revedin v. Acheson, 194 F. 2d 482 (2d Cir.
1952).

When this Court subsequently decided Afroyim, it did
not indicate an intention to overrule Savorgnan. Although
Afroyim did expressly overrule the earlier decision of
this Court in Perez v. Brownell, both of those cases in-
volved the constitutionality of Section 401(e) of the Na-

10

tionality Act of 1940 which provided that a citizen of
this country could lose his citizenship by voting in a
foreign election. In Perez the Court held that Congress,
pursuant to its powers to regulate the relations of the
United States with foreign countries, could make loss of
citizenship an automatic consequence of such action. The
majority in Afroyim held, however, that citizenship was
a right guaranteed by the Fourteenth Amendment and
Congress did not have the power under the Constitution
to strip a person of his citizenship. The Court in Afroyim
summarized its holding as follows:

“Our holding does no more than to give to this citi-
zen that which is his own, a constitutional right to
remain a citizen in a free country unless he volun-
tarily relinquishes that citizenship.” 387 U.S. at 268.

Even if Afroyim was not overruled sub silentio in
Rogers v. Bellet, supra, there is little reason to extend the
ruling in Afroyim to invalidate the different provisions of
the Nationality Act of 1940 which are involved here. The
basis for loss of citizenship at issue in Afroyim and Perez,
voting in a foreign election, was a ground for loss of na-
tionality unique to the laws of the United States, the invo-
cation of which would often have the undesirable effect of
rendering the former citizen stateless. See 387 U.S. at
268; MacDougal, Lasswell and Chen, The Protection of the
Individual in External Areas, 83 Yale L.J. 900, 937 (1974).
The provisions of the 1940 Act at issue here, which makes
loss of citizenship the result of obtaining foreign citizen-
ship and declaring allegiance to a foreign government,
are, however, bases for loss of nationality generally in-
voked by nations to prevent problems of dual nationality
where a person has voluntarily taken on a new allegiance
to a foreign government. See Duvall, Expatriation under
United States Law, Perez and Afroyim: The Search for
a Philosophy of American Citizenship, 56 Va.L.Rev. 408,
410 (1970).

11

The majority opinion in Afroyim expressly recognized
that American citizenship could be lost if the citizen
“voluntarily relinquishes that citizenship.” 387 U.S. at 268.
While the majority in Afroyim did not attempt to enu-
merate those acts which would constitute a voluntary re-
linquishment of citizenship, the majority did cite with ap-
proval the dissent of Chief Justice Warren in Perez which
stated :

“Tt has long been recognized that citizenship may
not only be voluntarily renounced through exercise of
the right of expatriation but also by other actions in
derogation of undivided allegiance to tris country.
While the essential qualities of the citizen-state rela-
tionship under our Constitution preclude the exercise
of governmental power to divest United States citizen-
ship, the establishment of that relationship did not
impair the principle that conduct of a citizen showing
a voluntary transfer of allegiance is an abandonment
of citizenship. Nearly all sovereignties recognize that
acquisition of foreign nationality ordinarily shows a
renunciation of citizenship. Nor is this the only act
by which the citizen may show a voluntary abandon-
ment of his citizenship. Any action by which he mani-
fests allegiance to a foreign state may be so incon-
sistent with the retention of citizenship as to result
in loss of that status. In recognizing the consequence
of such action, the Government is not taking away
United States citizenship to implement its general
regulatory powers, for, as previously indicated, in my
judgment citizenship is immune from divestment under
these powers. Rather, the Government is simply giv-
ing formal recognition to the inevitable consequence
of the citizen’s own voluntary surrender of his citizen-
ship.” 356 U.S. at 68-69 (Footnotes omitted).

In acquiring Mexican citizenship, Mrs. Burns performed
an act which, as Chief Justice Warren noted, is a generally
recognized manifestation of a renunciation of any other

12

citizenship. The deposition testimony of Francisco Liquori,
the Mexican attorney who assisted Mrs. Burns in obtaining
her Mexican nationality, demonstrates that she voluntarily
took these actions to obtain the benefits of Mexican citizen-
ship with a clear understanding that she was transferring
her allegiance to the Republic of Mexico. Thus, under
Savorgnan v. United States, supra, and the principles
enunciated by Chief Justice Warren in Perez, her actions
constituted an abandonment of her United States citizen-
ship.

The decision of the Court below can only be sustained
if (1) Afroyim continues to represent the view of a ma-
jority of this Court, and (2) the reasoning of Afroyim is
to be extended to the different provisions of the Nationality
Act at issue here.

As the court below recognized, United States citizenship
carries with it valuable rights. It is important, therefore,
that all citizens have a clear knowledge of those actions
which can result in expatriation. If the decision below
was wrong, this Court should grant certiorari to make clear
that the rationale of Afroyim does not apply to citizens
who obtain foreign nationality. Otherwise, citizens may
unwittingly expatriate themselves by applying for foreign
nationality with the mistaken belief they can still retain
their United States citizenship.

POINT II

The alternative holding of the Court below that
principles of estoppel and laches prevent Mrs. Burns’
Executor from correcting Mrs. Burns’ mistake of law
as to her true citizenship is in conflict with all prior
precedenis.

Beginning in 1947, Mrs. Burns indicated on a series of
passport applications that she was a citizen of the United
States and she filed United States tax returns as a citizen

13

for the period from 1956 to her death. Since both courts
below found Mrs. Burns did not intend to renounce her
citizenship when she obtained Mexican nationality, it is
apparent that throughout this period Mrs. Burns honestly
believed she was a United States citizen. In these cireum-
stances neither principles of estoppel nor laches should
preclude Mrs. Burns’ Executor from asserting that she
automatically lost her United States citizenship when she
obtained Mexican nationality.

A. The Court of Appeals’ Finding that
Mrs. Burns’ Executor Was Equitably

Estopped from Asserting She Had
Lost Her United States Citizenship Is

Contrary to Settled Authority

Mrs. Burns’ actions subsequent to her loss of citizenship
reflect the fact that she was under the mistaken impression
she still retained her United States citizenship. Based as
they were on an erroneous interpretation of the law ap-
plicable to her citizenship, these actions should in no way
affect the right of her estate to correct the effects of this
mistake of law and file valid claims against the Govern-
ment.*

The decision below is in conflict with a long line of cases
from various circuits which have permitted a taxpayer
whose earlier conduct was based on an innocent mistake
of law to rectify his prior misapprehension of the law and
to advance an apparently inconsistent position at a later
date. See Salvage v. Commissioner, 76 F.2d 112 (2d Cir.

*Such an erroneous assumption on the part of a noncitizen
would, of course, not estop the Government from contesting the
alien’s citizenship. Peignand v. Immigration and Naturalization
Service, 440 F.2d 757 (1st Cir. 1971); Wong Kwok Sui v. Boyd,
285 F.2d 572 (9th Cir. 1960) ; United States v. Watkins, 165 F.2d
1017 (2d Cir. 1948). Conversely, a misapprehension of the law
relating to her citizenship by Mrs. Burns should not estop her Ex-
ecutor from asserting her true citizenship as against the Govern-
ment.

14

1935), aff'd sub nom. Helvering v. Salvage, 297 U.S. 106
(1936) ; Commissioner v. Union Pac. R.Co., 86 F.2d 637 (2d
Cir. 1936); Helvering v. Schine Chain Theatres, 121 F.2d
948 (2d Cir. 1941); Helvering v. Brooklyn City R.Co., 72
F.2d 274 (2d Cir. 1934) (Hand, J.); Bennet v. Helvering,
137 F.2d 537 (2d Cir. 1943). See also Ross v. Commis-
stoner, 169 F.2d 483, 496 (1st Cir. 1948) (Frankfurter, J.) ;
United States v. Albertson Co., 219 F.2d 920 (9th Cir.
1955); Helvering v. Williams, 97 F.2d 810, 812 (8th Cir.
1938).

The decision below is also in conflict with the well-
established doctrine that the determination of the Pass-
port Office in issuing a passport does not raise any
estoppel because the proceedings are not of a judicial or
even quasi-judicial nature. See, e.g., Mil’er v. Sinjen, 289
Fed. 388 (8th Cir. 1923). In a case closely analogous to
the instant case the Third Circuit considered similar
factors in determining what significance to give to a prior
expression of opinion by the Commissioner of Immigration
as to whether the plaintiff could be “considered a citizen
of the United States” and reached a result directly con-
trary to that of the court below. Delmore v. Brownell, 236
F.2d 598, 599-600 (3d Cir. 1956). Similarly, the Ninth
Circuit has consistently held that the determination of
citizenship inherent in the granting of a certificate of
identity by a Board of Special Inquiry “is not a judi-
cial proceeding and does not have the force and effect
of a judgment”. Lim v. Mitchell, 431 F.2d 197 (9th
Cir. 1970); Lee Hon Lung v. Dulles, 261 F.2d 719, 723
(9th Cir. 1958); cf. Wong Kwok Sui v. Boyd, 285 F.2d
572 (9th Cir. 1960). The absence of a real judicial proceed-
ing and a final judgment is even more patent in this case
where the State Department’s determination, like that of
the Commissioner in Delmore v. Brownell, supra at 600,
does not even ‘‘possess quite the dignity of a determination
of a Board of Special Inquiry”. Compare, Stella v.

15

Graham-Paige Motors Corp., 259 F.2d 476 (2d Cir. 1958),
cert. denied, 359 U.S. 914 (1959), and Lewis v. Realty
Equities Corp. of New York, 396 F.Supp. 1026 (S.D.N.Y.
1975) (holding that extra-judicial statements to the S.E.C.
and the I.R.S. did not estop party from asserting opposite
position in court proceedings). Indeed, this Court has held
that, far from being a proceeding such as would raise a
quasi-judicial estoppel, the issuance of a passport is not
even admissible evidence of United States citizenship.
Urtetiqui v. D’Arcy, 34 U.S. 692 (1835). See also Peignand
v. Immigration and Naturalization Service, supra; Edsell
v. Mark, 179 Fed. 292 (9th Cir. 1910) (per curiam) ; Miller
v. Sinjen, supra.

An analysis of the action taken by the Passport Office
in 1953 with respect to Mrs. Burns’ application clearly
mandates a finding that it did not rise to the level of a
judicial or quasi-judicial proceeding sufficient to warrant
the invocation of collateral estoppel. Moreover, even if
the Passport Office investigation were considered to be a
judicial or quasi-judicial proceeding, the Passport Office
did not rely on any statement by Mrs. Burns as to her
citizenship—it conducted its own independent investigation
and was aware that Mrs. Burns had obtained Mexican
nationality and that as a matter of course, the Mexican
Ministry of Foreign Relations would not issue a certificate
of nationality unless the applicant filed an oath of al-
legiance and a renunciation of all other allegiances.

These facts demonstrate that the Government did not
establish the detrimental reliance which, prior to the deci-
sion below, has uniformly been held necessary to a finding
of estoppel. See Helvering v. Schine Chain Theatres,
supra, 121 F.2d at 950; Commissioner v. Union Pacific R.
Co., supra; Hull v. Commissioner, 87 °.2d 260, 262 (4th
Cir. 1937); Commissioner v. Mellon, 184 F.2d 157, 159 (3d
Cir. 1950).

si

16

B. The Application of the Doctrine of Laches

to the Timely Filing of Claims for Tax

Refunds by Mrs. Burns’ Estate Is an Un-

precedented Action Meriting Review by

this Court

Despite the fact that the tax claims asserted herein were

timely filed within the applicable statute of limitations, the
Court of Appeals concluded that Mrs. Burns’ Estate is
barred by laches from raising the issue of Mrs. Burns’
expatriation in either its direct suit for a tax refund or,
in a rather novel interpretation of the law, as a defense to
the Government’s suit for a deficiency. This determina-
tion ignores the fact that Mrs. Burns’ Executor complied
with the Congressionally prescribed statutory period for
the timely filing of refund claims. The Congressional stat-
ute of limitations is definitive. Holmberg v. Armbrecht, 327
U.S. 392, 395 (1946). Laches applies only in the absence of
any statute of limitations made applicable to equity suits.
Cf., Russell v. Todd, 309 U.S. 280, 287. Moreover, the
lower courts have consistently held that general equitable
principles may not override this statutory requirement.
Kingston Products Corp. v. United States, 368 F.2d 281
(Ct. Cl. 1966); First National Bank of Montgomery v.
United States, 280 F.2d 818, 821 (Ct. Cl. 1960); Young v.
United States, 203 F.2d 686, 689 (8th Cir. 1953). Thus,
laches has no applicability to the timely filing of refund
claims.*

* Even if the doctrine of laches were applicable to such claims,
the doctrine of laches is inapplicable to the instant case because
the Government did not prove any delay on the part of the Execu-
tor or prejudice to the United States. See Russell v. Todd, supra
at 287. See also Reconstruction Finance Corp. v. Harrisons &
Crosfield, 204 F.2d 366 (2d Cir.), cert. denied, 346 U.S. 854
(1953); Shell v. Strong, 151 F.2d 909, 911 (10th Cir. 1945) ;
Ecology Center of Louisiana v. Coleman, 515 F.2d 860, 867 (5th
Cir. 1975). As soon as Mrs. Burns’ Executor learned of al] the
facts relating to Mrs. Burns’ citizenship, he promptly filed claims

(footnote continued on following page)

17

Moreover, any finding of laches is directly contrary to
the recognized doctrine in tax cases that ‘‘each year is the
origin of a new liability and of a separate cause of action’’.
See e.g., United States v. Rexach, 482 F.2d 10, 19 (1st Cir.),
cert. denied, 414 U.S. 1089 (1973). This same rule has
been held applicable even when the status of a taxpayer is
in issue. See Stoddard v. Commissioner, 141 F.2d 76, 80
(2d Cir. 1944).

Thus, there is no basis in law* or in fact for the applica-
tion of the doctrines of estoppel or laches to this case.
Since this decision, unprecedented as it is, has widespread
ramifications for all taxpayers, this Court should grant
certiorari to review the decision by the Court of Appeals.

(footnote continued from preceding page)

for refunds for all years not barred by the statute of limitations.
The United States suffered no prejudice, since it collected from
Mrs. Burns in income and gift taxes almost $191,000 more than it
would have been entitled to if Mrs. Burns had been taxed as a non-
resident alien. The statement in the Court of Appeals opinion, p.
2302, that the Government is prejudiced by its inability to call
Mrs. Burns to rebut an allegation of expatriation is relevant only
to a determination of subjective intent which is not in issue under
Savorgnan v. United States, supra.

* The only case cited by the Court of Appeals in support
of the doctrine of laches, Simons v. United States, 452 F.2d 1110
(2d Cir. 1971), does not lend support to the Court’s application
of laches in a tax case. That case involved an attempt by the
decedent’s wife to open up a judgment rendered more than 22
years prior to the plaintiff’s motion. The Court treated that
complaint as a motion for relief from a final judgment pursuant
to F.R.Civ. P. 60(b) and held that there was no excuse for
delay beyond the usual one year statutory time limit. In this
case Mrs. Burns’ citizenship was never determined in any prior
judicial or quasi-judicial proceeding and her Executor’s claim
was timely filed. Moreover, in Simons, Mr. Simon’s testimony
was relevant to his intent at the time of his naturalization and
his death precluded the Government from calling him as a witness.
Here, however, Mrs. Burns’ subjective intent is irrelevant under
the teachings of Savorgnan v. United States, supra.

18

CONCLUSION

The petition for a writ of certiorari should be
granted.

Respectfully submitted,

Joun S. Martin, Jr.

Martin, OspermMareR & Morvit1o
1290 Avenue of Americas

New York, New York 10019
Attorneys for Petitioner

la

APPENDIX A
Opinion of Court of Appeals.
UNITED STATES COURT OF APPEALS

For THE SEconp Crircvult

7%
aa

No. 595—September Term, 1975.
(Argued January 16, 1976 Decided March 3, 1976.)
Docket No. 75-6062

i.
4

Unitrep States or AMERICA,

Plaintiff-Appeiiee,
against

WituiaMm L. Matrueson, Executor of the Will
of Dorothy Gould Burns, Deceased,
Defendant-Appellant.

a.
vv

Wituiam L. Marueson, Executor of the Will
of Dorothy Gould Burns, Deceased,

Plaintiff-Appellant,
against
Unrrep States or AMERICA,

Defendant-Appellee.

Before:
LumsBarp, SmitH and MANSFIELD,
Circuit Judges.

,%
. 4

Appeal from an order of the United States District
Court, Southern District of New York, Kevin T. Duffy,

2a
Opinion of Court of Appeals.

Judge, granting summary judgment to the United States
in consolidated action finding appellant liable for federal
income taxes, interests, and costs for the year 1966, and
dismissing appellant’s complaint seeking a refund of gift
taxes for the years 1966-68. Held that the decedent was
a citizen of the United States in the years in question,
that her estate is therefore fully liable for contested taxes,
and that in any event her estate is estopped from claim-
ing that decedent was expatriated from the United States
in 1944,
Affirmed.

Joun §S. Martin, Jr., Esq., New York, N.Y.
(Herbert H. Chaice, Esq., Martin, Ober-
maier & Morvillo, Patterson, Belknap &
Webb, New York, N.Y., of counsel), for
Appellant Matheson.

Met P. Barkan, Assistant United States Attor-
ney (Thomas J. Cahill, United States At-
torney for the Southern District of New
York, William S. Brandt, Assistant United
States Attorney, of counsel), for Appellee
United States of America.

MANSFIELD, Circuit Judge:

Since United States citizenship is considered by most
to be a prized status, it is usually the government which
claims that the citizen has lost it, over the vigorous oppo-
sition of the person facing the loss. In this rare case the
roles are reversed. Here the estate of a wealthy deceazed
United States citizen seeks to establish over the govern-
ment’s opposition that she expatriated herself. As might
be suspected, the reason is several million dollars in tax
liability, which the estate might escape if it could sustain

3a
Opinion of Court of Appeals.

the burden of showing that the deceased lost her United
States citizenship. Although this appeal involves claims
of gift and income tax liabilities amounting to only about
$24,000, there waits in the wings of the Tax Court a pend-
ing estate tax dispute involving approximately $3.25 mil-
lion, which turns on our resolution of the legal issues raised
here. The size of the sum at stake has understandably pro-
duced zealous and ingenious legal arguments on the tax-
payer’s part. However, finding them without merit, we
affirm the grant by the district court, Kevin T. Duffy,
Judge, of summary judgment in favor of the government.

The facts essential to our decision are not in dispute.
Dorothy Gould Burns, the granddaughter of the railroad
magnate Jay Gould, was born in the United States in 1904.
It is undisputed that she remained a United States citizen
for the first 40 years of her life. Her pre-1944 history,
insofar as it is pertinent, reveals that in 1919 she left the
United States for Europe, never to re-establish residence
in this country. In 1925 she married a Swiss Baron, Roland
Graffenreid de Villars, their marriage producing two
daughters but ending in divorce in 1936. Through this
period Mrs. Burns traveled as a citizen of the United
States, relying upon a United States passport until 1934.
Thereafter, due to the concededly erroneous refusal of the
Passport Office to grant a new passport, she travelled upon
an ‘‘affidavit in lieu of passport’’ issued by the American
Consulate. When the Germans occupied France, she re-
turned to the United States in 1941 on a newly issued
American passport but remained only briefly, soon depart-
ing for Cuba where she met her second husband, Archibald
Burns, a Mexican national of Scottish parents. She fol-
lowed Mr. Burns to Mexico where they married in 1944.

Now enters the crucial event of this story. Since an
alien woman who married a Mexican man was a citizen by

4a

Opinion of Court of Appea’s.

naturalization under Mexican law, the Burns’ contacted a
Mexican attorney, Francisco Liguori, and applied to the
Mexican Ministry of Foreign Relations for a certificate of
her Mexican nationality. The pertinent paragraph of her
petition for the certificate, which her executor now claims
to have represented a renunciation of her nationality of
origin, i.e., an act of expatriation terminating her United
States citizenship, reads as follows:

‘*] herewith formally declare my allegiance, obedi-
ence, and submission to the laws and authorities of
the Republic of Mexico; I expressly renounce all pro-
tection foreign to said laws and authorities and any
right which treaties or international law grant to for-
eigners, expressly furthermore agreeing not to invoke
with respect to the Government of the Republic any
right inherent in my nationality of origin.”

The government today argues, and this interpretation
was adopted by the State Department in 1945 and again in
1953 when Mrs. Burns’ request for a United States pass-
port was held in abeyance pending resolution of the matter,
that Mrs. Burns merely sought the certificate as evidence
of her Mexican citizenship for two reasons entirely com-
patible with her simultaneous retention of United States
nationality. First, it enabled her to obtain a Mexican pass-
port, which simplified her problems with travel restrictions
in that country and permitted her to establish permanent
residence therein. Second, it enabled her to gain expedited
entry into Mexico of her oldest daughter by her first mar-
riage as a preferred immigrant.

It is also undisputed that throughout the remainder of
her life, both Mrs. Burns and William Matheson, her lawyer
at that time and her executor in this action, represented
to others and acted as if the 1944 declaration did not con-

5a
Opinion of Court of Appeals.

stitute an act of expatriation. The most telling instances
occurred in the course of her dealings with the United
States Passport Office. On May 2, 1947, Mrs. Burns decided
to resume her travels in Europe and accordingly applied
to the State Department of the United States for a renewal
of her American passport, claiming United States citizen-
ship and stating under oath in her ‘‘Affidavit by Native
American to Explain Protracted Foreign Residence’’ that
she had “never taken an oath or made an affirmation or
other formal declaration of allegiance to a foreign state.”
She signed similar sworn statements in 14 other affidavits
and passport applications until a year before her death
in 1969. In fact, in 1952-1953, when the State Department
delayed issuance of a passport to Mrs. Burns pending a
determination of whether her Mexican marriage and acqui-
sition of a Mexican naturalization certificate constituted
expatriating conduct, Matheson represented Mrs. Burns
in the discussions with the State Department, which re-
solved the matter by concluding that Mrs. Burns enjoyed
dual citizenship and therefore qualified for a United States
passport. In a letter to Mrs. Burns on the following day,
March 24, 1953, Matheson advised that the validity of her
United States citizenship was now firmly settled, although
both parties plainly viewed her loyalty largely as a matter
of practical expediency:

“Now, first the decision that you are a United States
citizen is favorable and we do not wish you to do
anything to disturb it. This is true not so much from
a United States tax standpoint as from the standpoint
of the rights and privileges you will enjoy at the time
of your father’s death. It may help you to avoid any
Mexican inheritance taxes then also. It may be that
after his estate is settled we shall recommend that you
renounce your United States citizenship if you are to

6a
Opinion of Court of Appeals.

continue living abroad in order to avoid any gift tax
on creating a trust, but this is in the distant future. ...
Let me emphasize again, do not do anything in choos-
ing that will put your United States citizenship in

jeopardy.”

The government offers a wealth of similar documentary
evidence demonstrating that Mrs. Burns and Matheson con-
tinually believed and represented that she was a citizen
of the United States. For example, during the post-1944
period, Matheson prepared for Mrs. Burns 21 separate
federal tax returns in which they both stated under penalty
of perjury that she was a United States citizen. In 1968
and 1969 Mrs. Burns and Matheson, respectively, informed
the French taxing authorities that she was an American
citizen, thereby excluding her United States income, largely
in the form of municipal securities, tax exempt in this
country, from French taxation as well. In three separate
tax returns submitted to the French authorities in 1959,
1966, and 1969, Mrs. Burns announced her nationality as
“American.’’ Similarly in 1958 as a United States citizen
she applied to the Coast Guard for American registration
for her private yacht, thereby permitting its duty-free entry
into France. And in 1969, Matheson reported her death to
the appropriate American officials in France in a form
entitled ‘‘Report of the Death of an American Citizen.”

Despite this mass of evidence, appellant takes the posi-
tion that as a matter of law Mrs. Burns expatriated herself
in 1944 when she submitted her petition requesting a
Mexican certificate of nationality. The executor raised
this argument in two actions that have been consolidated
for consideration by the district court and now by this
court. In May 1973 the United States commenced an action
in the Southern District of New York (73 Civ. 2011) against
the executor to recover $6,948.97 of income taxes and

Ta
Opinion of Court of Appeals.

interest for the year 1966 on the ground that the govern-
ment improperly had refunded this sum to Mrs. Burns’
estate in reliance on her executor’s claim that she was not
a United States citizen in 1966. While this action was
pending the executor initiated his own suit challenging the
previous payment of $9,954.17 in gift taxes and interest
for the years 1966-68 on the identical ground that Mrs.
Burns was not a citizen during that period. In the con-
solidated action Judge Duffy on May 27, 1975, granted
summary judgment in favor of the United States, holding
(1) that Dorothy Gould Burns was a citizen of the United
States throughout her lifetime and (2) that in any event
her estate is estopped from today claiming that she ex-
patriated herself in 1944. From these orders the executor
appeals.

Discussion

Mrs. Burns’ Citizenship

In deciding whether the district court acted properly in
granting summary judgment in favor of the government,
we are, of course, bound by a long-standing principle
recently reaffirmed by us, see Judge v. Buffalo, 524 F.2d
1321 (2d Cir. 1975); Heyman v. Commerce & Industry Ins.
Co., 524 F.2d 1317 (2d Cir. 1975); Rhoads v. McFerran,
517 F.2d 66, 67-68 (2d Cir. 1975), that the court’s function
upon a motion for summary judgment is not to resolve
issues of fact but to determine whether any material factual
issues are raised after resolving all questionable inferences
in favor of the party against whom the judgment is sought.
Only if no material factual issues exist may summary judg-
ment be granted. However, it is equally true that summary
judgment should not be denied where the only issues raised
are frivolous or immaterial ones which would simply serve
to provide an exercise in futility or a pur} oseless trial for

8a
Opinion of Court of Appeals.

the district court, particularly where no jury has been
demanded. See Beal v. Lindsey, 468 F.2d 287, 292 (2d Cir.
1972); Houghton Mifflin Co. v. Stackpole Sons, Inc., 113
F.2d 627, 628 (2d Cir.), cert. denied, 308 U.S. 597 (1940).
To ascertain whether any material issues are raised we
must first briefly review the principles governing expatria-
tion of American citizens in Mrs. Burns’ position and con-
sider the undisputed evidence in the light of those prin-
ciples.

Title 8 U.S.C. $1481(a)(1) & (2), which governs the
expatriation of American citizens,’ provides in pertinent
part:

“(a) From and after the effective date of this chap-
ter a person who is a national of the United States
whether by birth or naturalization, shall lose his na-
tionality by—

(1) obtaining naturalization in a foreign state upon
his own application . . .; or

(2) taking an oath or making an affirmation or other
formal declaration of allegiance to a foreign state or
a political subdivision thereof... .”

Relying upon Savorgnan v. United States, 338 U.S. 491,
499-500 (1950), appellant argues that these sections of the
Act provide clearcut objective guidelines specifying con-
duct by a citizen that will automatically result in his or
her expatriation and that since Mrs. Burns’ 1944 declara-
tion fell within the terms of the statute she lost her Amer-
ican citizenship upon executing it.

This argument, however, is undermined by the Supreme
Court’s later decision in Afroyim v. Rusk, 387 U.S. 253

1 This statutory provision virtually is identical to the Nationality
Act of 1940, §§ 401(a) & (b), the statute in force in 1944 when
Mrs. Burns petitioned for her Mexican certificate of nationality.

9a
Opinion of Court of Appeals.

(1967), where the Court held unconstitutional another

section of the Nationality Act which provided in similar

unqualified terms that a United States citizen would lose
his citizenship by voting in a foreign political election.
Noting that the Fourteenth Amendment insures that “[a]ll
persons born or naturalized in the United States . . . are
citizens,” the Court concluded that an act of Congress
cannot strip an individual of his citizenship in the absence
of a “voluntary relinquish[ment]” on his part. Jd. at 268.
The Court explicitly rejected earlier cases applying an
objective test of the type favored by appellant here, under
which a person would lose his American citizenship
“regardless of [his] intention not to give it up.” Jd. at 255.
Afroyim’s requirement of a subjective intent reflects the
growing trend in our constitutional jurisprudence toward
the principle that conduct will be construed as a waiver or
forfeiture of a constitutional right only if it is knowingly
and intelligently intended as such. Surely the Fourteenth
Amendment right of citizenship cannot be characterized as
a trivial matter justifying departure from this rule. Accord-
ingly, there must be proof of a specific in -nt to relinquish
United States citizenship before an act of foreign natural-
ization or oath of loyalty to another sovereign can result
in the expatriation of an American citizen. See, e.g., King
v. Rogers, 463 F.2d 1188, 1189-90 (9th Cir. 1972); Jolley v.
INS, 441 F.2d 1245, 1249 (5th Cir.), cert. denied, 404 U.S.
946 (1971).

Appellant offers several grounds for distinguishing
Afroyim and the ‘‘subjective-standard” eases which have
followed in its wake. However, none of these distinctions
is persuasive. First, he argues that Rogers v. Bellei, 401
U.S. 815 (1971), constitutes a sub silentio overruling of
Afroyim. We disagree. In Rogers the Court upheld the
constitutionality of §301(b) of the Immigration and Na-
tionality Act of 1952, which provides that one who acquires

10a

Opinion of Court of Appeals.

American citizenship overseas through birth abroad to an
American parent shall lose this citizenship unless he resides
in this country for a minimum five-year interval between
the ages of 14 and 28. As Justice Blackmun took pains to
point out, Afroyim was not thereby repudiated, since it
dealt with citizenship that is constitutionally protected
under the Fourteenth Amendment, i.e., citizenship derived
by virtue of birth in the United States or by naturalization
in the United States, see e.g., id. at 822, 823, 827, 828, and
835, whereas the citizenship at issue in Rogers owed its
existence solely to an act of Congress. What Congress
granted it had the power to take away or to modify by
subjecting its ‘‘generosity’’ to appropriate conditions prec-
edent or subsequent, id. at 835, even though it would be
powerless to strip a person of constitutionally-protected
citizenship on the same grounds in the absence of a volun-
tary relinquishment on the citizen’s part. Since Mrs. Burns
was a United States citizen by birth, she could not lose her
citizenship in the absence of proof that she intentionally
relinquished it.

Appellant next argues that Afroyim should be limited
to loss of citizenship by reason of voting in foreign elec-
tions and therefore should not apply to this case, which
involves wholly different sections of the Nationality Act.
However, we see no reason to accept such a narrow, indeed
stilted, interpretation of Afroyim. In that case the Court
reasoned that since the mere act of voting elsewhere does
not necessarily demonstrate a relinquishment of allegiance
or an expression of disloyalty to the United States, one
must look beyond the citizen’s bare conduct to determine
whether he intended by so voting to forego his claim of
citizenship. The same reasoning applies with equal force
to a declaration of allegiance to a foreign sovereign or a
petition for a certificate of Mexican nationality of the type
executed by Mrs. Burns, which may simply represent the

lla
Opinion of Court of Appeals.

citizen’s claim of dual nationality rather than a turning of
his back on the United States or a voluntary relinquishment
of his American citizenship. See generally, Nishikawa v.
Dulles, 356 U.S. 129, 135 (1958) ; Kawakiia v. United States,
343 U.S. 717, 723-24 (1952); Jalbwenw v. Dulles, 254 F.2d
379, 381 (3d Cir. 1958); Peters v. Secretary of State, 347
F. Supp. 1035, 1038 (D.D.C. 1972) (3-judge court). Fur-
thermore, since the purely objective legal meaning of such
a declaration is likely to turn upon highly technical inter-
pretations of foreign, domestic, and international law con-
cerning the status of dual nationals,’ it would be unfair
to strip an individual of his American birthright when he
honestly but mistakenly believed that his conduct did not
compromise his legal status as a United States vitizen or
as a dual national. Accordingly, to prevent such unfairness
and to avoid questionable interpretations of the meaning
and effect of a declaration or foreign naturalization peti-
tion, a citizen’s specific intent to relinquish his citizenship
must be proven before a statement of loyalty to a foreign
sovereign is binding as an act of expatriation. This re-
quirement of proof recognizes the overwhelming impor-
tance of American citizenship. As the Supreme Court only
recently has reminded us, the status of citizen, despite the
expanding protection afforded aliens under the Equal Pro-

* The United States has periodically investigated the question of
whether women in the position of Mrs. Burns should be considered
expatriated Americans or holders of both United States an . Mex-
ican citizenship. In 1945 and again in 1953, the United States
State Department concluded that such persons had dual citizen-
ship status. Appellant seeks to overturn this view by reference to
diverse Mexican constitutional provisions, legislative enactments,
and an executive memorandum as well as by an analysis of the rela-
tionship between Mexico and other nations (not including the
United States) that had joined together in a 1936 international
pact. One could hardly hold Mrs. Burns responsible had she in
1944 failed to grasp the ‘‘objective’’ legal consequences of her peti-
tion for a certificate of nationality.

12a
Opinion of Court of Appeals.

tection Clause, remains central to the very definition of a
social and political community. Sugarman v. Dougall, 413
U.S. 634, 647 (1973). An individual denied his or her
United States citizenship, even if permitted entry into the
country, is denied effective participation in our country’s
electoral processes, id. at 647-49, which is ordinarily re-
garded as a fundamental constitutional interest, as well
as access to a range of livelihoods and positions opened
only to citizens of this country, id. at 647. Indeed, the
record reveals (see supra, p. 6) that in this case Mrs. Burns
used her American citizenship to gain benefits which would
not have been available to her as a Mexican national.

For these reasons we conclude that appellant could pre-
vail only by establishing that Mrs. Burns, in executing her
1944 declaration, intended to expatriate herself rather
than merely to assume the status of a dual national. Turn-
ing to the question of whether an issue of fact has been
raised regarding her intent, we note that, in view of her
unavailability to testify, the evidence on the subject, which
was carefully analyzed by the district court, is almost
entirely documentary in character, thus presenting a more
appropriate case for summary judgment than would a pro-
ceeding involving live witnesses and unresolved issues of
credibility.

The starting point for an evaluation of Mrs. Burns’
intent lies in her December 21, 1944, declaration which was
prepared by the Burns’ Mexican counsel, signed by her and
submitted to the Ministry of Foreign Relations of Mexico
after the Burns’ had requested their counsel to obtain a
certificate of Mexican nationality for Mrs. Burns, based
on her recent marriage and establishment of a domicile in
Mexico. Without such a certificate Mrs. Burns would
have had no tangible evidence that she had acquired Mex-
ican citizenship through marriage to Burns. As evidence
of her Mexican nationality such a certificate would aid her

13a
Opinion of Court of Appeals.

in securing preferred immigation status for her daughter
Rolande and facilitate permanent residence by Mrs. Burns
in Mexico and her travel in and out of that country. With-
out a Mexican passport, obtainable through such proof of
her status as a Mexican national, Mrs. Burns might have
had difficulty entering, leaving, and remaining for long
periods in Mexico.

Appellant characterizes Mrs. Burns’ 1944 declaration—
incorrectly in our view—as a “renunciation of nationality
of origin,”’ i.e., of United States citizenship. The passage
upon which appellant relies reads:

“IT expressly renounce all protection foreign to said
laws and authorities [of Mexico] and any right which
treaties or international law grant to foreigners, ex-
pressly furthermore agreeing not to invoke with re-
spect to the Government of the Republic [of Mexico]
any right inherent in my nationality of origin.”

Although the declaration, when scanned superficially, may
appear to support appellant’s interpretation, a closer look
reveals it to be merely a subscription to a basic principle
of international law governing dual nationality: that a
national of one country (e.g., United States) may not look
to it for protection while she is in another country (e.g.,
Mexico), of which she is also a national. This principle
has repeatedly been recognized by the Supreme Court of
the United States. Nishikawa v. United States, supra, 356
U.S. at 132; Kawakita v. United States, supra, 343 U.S. at
733. Had Mrs. Burns wished to expatriate herself she
could simply have unequivocally stated that she renounced
her American citizenship. Compare, e.g., Savorgnan v.
United States, supra, 338 U.S. at 495 n.3 (“I, Rosetta
Andrus Sorge, born an American citizen, declare I re-
nounce 2nd in truth do renounce my American citizenship.

———

l4a
Opinion of Court of Appeals.

. . .”); Jolley v. INS, supra, 441 F.2d at 1247 (petitioner
formally executed an Oath of Renunciation and announced
“T renounced my United States citizenship, thus terminat-
ing all obligations to the United States.”). Instead, she
used language to the effect that as a Mexican national she
could not claim her rights as a United States citizen “with
respect to the Government of the Republic [of Mexico].
. . .” This limited enrrender did not preclude her from
claiming rights as a United States citizen outside of Mex-
ico. See Nishikawa v. United States, swpra. Indeed, once
outside of Mexico she did not hesitate, consistent with this
interpretation of her 1944 declaration, to invoke important
rights and privileges inherent in her United States birth-
right. Thus we must conclude that the 1944 declaration
amounted to nothing more than a statement of dual na-
tionality.

Our reading of Mrs. Burns’ 1944 declaration is in accord
both with Mexican laws then in effect governing the na-
tionality of non-Mexican women who married Mexican na-
tionals and with the terms of the certificate of Mexican
nationality issued to Mrs. Burns. Article 30(b) (II) of the
Mexican Political Constitution as it existed in 1944 de-
fines a “Mexican by naturalization” to include “(t]he for-
eign woman who contracts matrimony with a Mexican and
has or establishes her domicile within the national ter-
ritory.” The Mexican Nationality and Naturalization Act
of 1934, which was in force in 1944, similarly provided
that an alien woman marrying a Mexican and establishing
her domicile in Mexico thereby became a Mexican national,
with the Ministry of Foreign Relations being directed in
such a case to issue the necessary certificate. In accord-

$ Article 2 of the Act read in pertinent part:
‘*The following are Mexicans by naturalization:

BURNIN cic sen eta hn

15a
Opinion of Court of Appeals.

ance with these provisions the certificate of Mexican na-
tionality issued to Mrs. Burns on January 2, 1945, did not
provide that she “thereby” became a Mexican citizen; it
merely confirmed that she had acquired Mexican na-
tionality “as of the date of her marriage.” On the strength
of these provisions of Mexican law and the failure of Mex-
ican officials to provide an interpretation to the contrary,
the United States Acting Secretary of State in August
1945 instructed our Ambassador to Mexico that women
such as Mrs. Burns are considered nationals of both the
United States and Mexiec

The foregoing interpretation of the pertinent provisions
of Mexican law was contermmporaneously shared by knowl-
edgeable officials in Mexico. In 1949 the Mexican naturali-
zation law was substantially modified explicitly to require
a renunciation of other citizenship in applying for a cer-
tificate of Mexican nationality. In reporting to the Mexican
Congress as to how this 1949 amendment altered the law in
force until that date, Oscar Trevino Rios, the Chief of the
Legal Section of the Mexican Foreign Office, explained that
previously foreign women who married Mexicans were
treated as dual nationals while under the new law they
must renounce foreign allegiance.

Thus, prior to the 1949 amendments of the Mexican Law
of Nationality and Naturalization, which precluded a non-
Mexican citizen from acquiring dual nationality, the gen-
erally accepted view was that a foreign woman who married
a Mexican citizen thereby automatically acquired Mexican
citizenship but did not lose her citizenship of origin, thus
gaining dual nationality. That this was Mrs. Burns’ under-

“TL. Any alien woman who marries a Mexican and who has
or establishes her domicile within the national territory. .. .

“The Ministry of Foreign Relations will issue the cor-
responding declaration in this case.”

iin »

16a
Opinion of Court of Appeals.

standing of her status as well as that of her lawyer and
executor, William Matheson, during the remainder of her
life, is attested to by an unwavering line of representations,
statements, and actions by both in which they made it clear
that Mrs. Burns did not intend her 1944 declaration to
represent a forfeiture of her United States citizenship.
Moreover, in personal communications between Matheson
and Mrs. Burns, at a time when neither party would have
had an incentive to misrepresent her national status, both
assumed that Mrs. Burns had never renounced or in any
way forfeited her United States citizenship. For example,
when the State Department in 1952-53 delayed issuance of
Mrs. Burns’ passport pending determination of the legal
significance of her 1944 Mexican declaration and marriage,
Matheson wrote her letters on December 11, 1952, Febru-
ary 17, 1953, and March 24, 1953, assuring her that she
remained a citizen of the United States and would prevail
before the Passport Office.

Faced with these prevailing official contemporaneous
interpretations of pertinent Mexican law and with over-
whelming evidence that Mrs. Burns did not intend to relin-
quish her United States citizenship, appellant seeks to
avoid summary judgment on two grounds. First he con-
tends, on the basis of an opinion provided at his request
in 1974 by the Legal Department of the Mexican Foreign
Ministry, that a 1936 international conference (which in-
cluded Mexico but not the United States) pledged the sig-
natory countries to reduce instances of dual nationality
whenever possible and consequently Mexico purportedly
required a renunciation of other national ties as a pre-
condition to Mexican naturalization. Whatever is the merit
of this recently adopted view of Mexican law,* it raises no

* The 1974 opinion of the Foreign Ministry is at best ambiguous,
representing the third opinion furnished by the Ministry at the

CD. Oy hs thi, i cereale tO aetna oe 4

17a
Opinion of Court of Appeals.

material issue with respect to this case which under Afro-
yim is not concerned with current retrospective views of
Mexican law but with Mrs. Burns’ understanding of Mex-
ican law in 1944 insofar as it might bear upon her intention
voluntarily to relinquish her United States citizenship or
to remain loyal to two countries. Viewed in this light, the
evidence simply is overwhelming that Mrs. Burns did not
interpret Mexican law as does her executor today, never
formed the requisite intent to expatriate, and consistently
viewed herself as a dual national of both the United States
and Mexico. Nothing in the Mexican Government’s 1944
conduct or pronouncements could have indicated to her in
any way that her receipt of a Mexican certificate of nation-
ality must be coupled with a renunciation of United States
citizenship. On the contrary, the terms of the certificate
issued to her by Mexico in January, 1945, by confirming
that she acquired her Mexican citizenship “as of the date
of her marriage,’’ indicated that there was no need for her
to renounce her loyalty to the United States. As seen
earlier this interpretation was not only consistent with
prevailing Mexican law then in force but also with the view
of the United States then and now.

Although the Mexican Foreign Office in 1974 has advised
through appellant that these earlier interpretations are
incorrect and that the 1949 amendments merely were de-
signed to codify rather than change pre-existing law, there
is no evidentiary basis for imputing to Mrs. Burns’ knowl-

request of the Burns family after two earlier ones appear to apply
the wrong Mexican law. The opinion appears in conflict with the
Mexican constitutional and statutory language in force in the
1940s, with the language of the certificate of nationality that was
issued to Mrs. Burns, with the interpretation offered by the head
of the Legal Department of the Foreign Ministry in the late 1940s
when the naturalization law was modified to expressly require a
renunciation by women like Mrs. Burns, and with the understand-
ing of the United States State Department reached in 1944-45 after
communication with Mexican officials.

18a
Opinion of Court of Appeals.

edge of this belated Mexican interpretation, which comes
some 30 years after the fact. In light of the plain wording
of the document she signed, the certificate she sought and
obtained, and the contemporaneous pronouncements of both
our government and Mexico, she could not have known in
1944 (or for the balance of her life) that her declaration
of allegiance to Mexico would be taken to represent a vol-
untary act of expatriation toward the United States. No
material issue, therefore, is raised by the Mexican Foreign
Office’s 1974 opinion.

As a second basis for raising a material factual issue
as to Mrs. Burns’ intent to expatriate herself, appellant
proposes to offer the testimony of her Mexican lawyer,
Francisee Liguori, regarding his explanation to her of the
language of her 1944 declaration at the time that she
signed it. However, we have already had the benefit of his
deposition testimony on the same subject matter in which,
despite leading questions by appellant’s counsel, he offered
no evidence from which an inference of knowing and
voluntary relinquishment of American citizenship might
be drawn. His pertinent testimony amounted to nothing
more than proof that he acquainted her with the substance
of the declaration itself which, as we have seen, is not
expatriating in nature. While normally we would deny
summary judgment in the face of an offer of live testimony
which, if found credible by the trier of the fact, might
support a material inference adverse to the movant, here
there is no indication that Liguori’s live testimony would
add anything substantial to his deposition, which fails
completely to bolster the estate’s claim that Mrs. Burns
intended in 1944 to renounce her United States citizenship.
In this connection it must furthermore be remembered
that the burden of proving her expatriation, which appel-
lant has assumed, is a heavy one. The party arguing
for loss of citizenship must support his argument by ‘‘clear,

SO eee oe He eee 8 ae O

Ne RG Nm. a a eo Ay ot RN AE Catt tl A OP AA A CA PM OG te Hil

eee

19a
Opinion of Court of Appeals.

convincing and unequivocal evidence.” Nishiwake v. Dulles,
supra, 356 U.S. at 133. Ambiguities in the evidence are
to be resolved in favor of citizenship, id. at 136; Perkins v.
Elg, 307 U.S. 325, 337 (1939), and courts must strain to
construe both facts and applicable law “as far as is reason-
ably possible in favor of the citizen.” Scheiderman v.
United States, 320 U.S. 118, 122 (1943). Thus Liguori’s
testimony, even accepted as fully credibie, could not hope
to satisfy this heavy burden, in light of the remaining
undisputed evidence in this case that not only fails to
show that Mrs. Burns intended expatriation but, on the
contrary, overwhelmingly supports the inference that she
sought and obtained dual nationality.

Estoppel

In any event, the record is clear that her estate would
now be estopped from asserting her loss of citizenship
today. For a period of more than 20 years “ter her 1944
declaration, Mrs. Burns and her attorney, Wiliam Mathe-
son, who here acts as her executor, repeatedly represented
to the United States Government under oath that she
continued to be a citizen of the United States and that she
had never taken an oath of affirmation or allegiance to a

_ * Title 8 U.S.C. § 1481(c) provides that the party seeking a
citizen’s expatriation must “establish such claim by a preponderance
of the evidence.’’ But Afroyim’s requirement of a specific intent
adds a constitutional element to loss of citizenship that is not found
in the statute and the strong preference exhibited by Afroyim and
earlier cases for retention of citizenship establishes, as the Attorney
General of the United States recognizes, ‘‘that this burden is not
easily satisfied. . . .,’’ 42 Op. Atty. Gen., No. 34 at 4 (1964). In
fact, a heavy burden of proving intent to expatriate is particularly
appropriate in cases where the citizen apparently believed that he
was a dual national since a person is unlikely to have voluntarily
relinquished his United States citizenship if he believed himself
eligible to remain loyal to two countries anc thereby receive the
benefits of both nationalties. See, e.g., Peter v. Secretary of State,
347 F. Supp. 1035, 1038-39 (D.D.C. 1972) (3-judge court).

20a

Opinion of Court of Appeals.

foreign siate. These representations led to an investiga-
tion in 1953 by the United States State Department, which
concluded, in a decision characterized by appellant as an
“adjudication,” that Mrs. Burns had retained her United
States citizenship. In reliance upon these representations
of United States citizenship the United States made avail-
able to Mrs. Burns a host of benefits, including (1) the
issuance to her of United States passports on 15 different
occasions, (2) the issuance by the United States Coast
Guard of a license for her yacht, encitliny it to fly the
American flag and gain duty-free entrance iuto France, and
(3) registry of her as an American citizen with the United
States Mission in France, entitling her to assistance by
United States officials overseas. As an American citizen
she furthermore was excused from paymeni of taxes to the
government of France, which would otherwise have been
levied on her income.

The United States, having furnished these benefits to
Mrs. Burns in reliance upon her numerous representations
of loyalty to it, is entitled to her estate’s observation of
her corresponding obligations, including the payment of
taxes. Cf. Cook v. Tait, 265 U.S. 47, 56 (1924); United
States v. Bennett, 232 U.S. 299, 307 (1914). Courts now
routinely hold that one gaining governmental benefits on
tue basis of a representation or asserted position is there-
after estopped from taking a contrary position in an effort
to escape taxes. Two cases are particularly relevant to the
facts here. In Rezach v. United States, 390 F.2d 631, 632
(1st Cir.), cert. denied, 393 U.S. 833 (1968), the taxpayer
earlier had renounced his American citizenship but there-
after succeeded in acquiring a United States passport by
representing to the State Department that the renunciation
had been involuntarily given. In a subsequent action by
the government for taxes owed the court found and the
taxpayer conceded that “as a matter of law he is precluded

ee ee roe er

2la

Opinion of Court of Appeals.

by the record for claiming that he ever ceased to be &
United States citizen. .. .” Similarly in Kurz v. United
States, 156 F. Supp. 99, 106 (S.D.N.Y. 1957), aff’d on
opinion below, 254 F.2d 811 (2d Cir. 1958), where the
decedent had throughout his lifetime “performed acts of
control” over a trust and “obtained the advantages of his
reservation of power. .. .” the court held that his execu-
tors were estopped to challenge the inclusion of the prin-
cipal of the trust in his taxable gross estate, concluding that
“his representatives should not now be permitted to take
an inconsistent stand to the detriment of the Government,
which has appropriately imposed the tax in reliance upon
the decedent’s act.” See also Commissioner v. National
Lead Co., 230 F.2d 161 (2d Cir. 1956), aff’d without reach-
ing issue, 352 U.S. 313 (1957) (taxpayer who received a tax
benefit from the War Production Board thereby forfeits
his right to later challenge the authority of the same Board
with respect to a different transaction).

Appellant contends that such a finding of collateral or
equitable estoppel is not warranted where the party against
whom it is asserted acted under an innocent misapprehen-
sion of the law. Regardless of the validity of this premise,
however, it has no application to the undisputed facts of
this case. Mrs. Burns and her lawyer repeatedly swore
not only that she was a citizen of the United States but that
she had never made an oath or declaration of allegiance
to a foreign sovereign. Thus they represented both that
she had neither formed the subjective intent to expatriate
nor performed the objective acts proscribed by the Nation-
ality Act. Regardless of Mrs. Burns’ understanding of
American naturalization law, these statements would pre-
clude her estate from today asserting that she had mis-
represented her conduct. The deliberate and devious
nature of appellant’s representations is further under-
scored by his March, 1953, letter to Mrs. Burns stating that

22a
Opinion of Court of Appeals.

she should not do anything ‘‘that will put your United
States citizenship in jeopardy’’ but should reserve possible
renunciation of citizenship for a later date when non-
citizenship might carry tax advantages.

Nor can we accept the contention that because the Pass-
port Office knew as early as 1953 of Mrs. Burns’ Mexican
citizenship certificate, the government failed to establish
detrimental reliance on her numerous statements under
oath that she was a United States citizen. This conve-
niently ignores the fact that, based upon her representations
of citizenship, Mrs. Burns applied for and was granted at
least three passports prior to 1953. Furthermore the
United States Passport Office, contrary to appellant’s con-
tention, Brief at 34, was satisfied that the Mexican Gov-
ernment, considering Mrs. Burns a Mexican citizen by
marriage, did not require her United States expatriation,
with the result that she ‘‘possessed dual nationality.’’
Memo of Mr. Curry, Passport Division, Mar. 23, 1953.
This belief was not contradicted by Mexican officials or by
Matheson in 1953 when he took Mrs. Burns’ case before
the Passport Office.

Thus Mrs. Burns’ and Matheson’s affirmations of her
United States citizenship were directly relevant to the
Passport Office’s inquiry concerning her eligibility for a
United States passport and to all similar subsequent de-
terminations by American agencies running favorably to
Mrs. Burns. Mrs. Burns and her estate cannot simply
‘*blow hot and cold”’ in their dealings with the government,
Callanan Road Improvement Co. v. United States, 345 U.S.
507, 513 (1953). At this late date her estate is estopped
to deny this long line of representations of decedent’s
United States citizenship.

23a

Opinion of Court of Appeals.
Laches

In any event appellant is barred by laches froin raising
the issue of Mrs. Burns’ expatriation in either his direct
suit for a tax refund or as a defense to the government’s
suit for a deficiency. For over 24 years Mrs. Burns and
appellant had many opportunities, when her United States
citizenship was questioned, to assert or seek an adjudica-
tion that she had expatriated herself. However, on the
contrary, she chose not only to represent that she was a
United States ctizen but to receive the benefits and per-
form the duties (including payment of taxes) of an Amer-
ican citizen. Having waited until Mrs. Burns’ death, there-
by preventing the government from calling her as a wit-
ness to contradict appellant’s present position or even to
explain her contrary behavior throughout her lifetime, ap-
pellant is precluded by his long delay from now asserting
for the first time that she lost her United States citizen-
ship in 1944. In a similar context, when a wife challenged
the 1948 naturalization of her iusband as a United States
citizen, we in Simons v. United States, 452 F.2d 1110, 1116-
17 (2d Cir. 1971), held that she was precluded by laches
from asserting such a contention, stating:

“Tf we entertained a different view on the points
so far discussed, we would nevertheles affirm the
order of dismissal and denial, on the ground of laches.
Both the complaint and the motion turn on John
Simons’ intention to reside in the United States when
he and his wife petitioned for naturalization . . . 22
years before these proceedings were brought. His
testimony would have been of the utmost importance.
. . . If the facts were as Mrs. Simons now represents,
they must have been known to her long ago. The
papers reveal no reason for the inordinate and prej-
udicial delay. . . . Apparently Mrs. Simons was quite

24s
Opinion of Court of Appeals.

content with the sitvation until the divorce in 1964;
even then she did nothing until her husband’s death
in 1968 opened new vistas at a time when contradic-
tion by him was no longer possible.’’

Appellant argues that the government, having collected
over $190,000 in gift and income taxes from Mrs. Burns
during her lifetime, cannot demonstrate any prejudice
from the estate’s delay in challenging decedent’s citizen-
ship. We disagree. The government is prejudiced because
in seeking to collect taxes ordinarily owed it by United
States citizens it is compelled to rebut an allegation of
expatriation that is now over 30 years stale, with the key
witness, Mrs. Burns, unavailable either to contradict this
allegation or to explain her inconsistent conduct in the
years following 1944. That Mrs. Burns paid sizeable gift
and income taxes during her lifetime does not therefore
alter the equitable considerations favoring the government.
A citizen’s duties to pay taxes are neither fungible nor
divisible. The government is entitled to all taxes due from
its citizens’ estates.

The order of the district court is affirmed.

APPENDIX B
Opinion of District Court.
Kevin Tuomas Dvurry, D.J.

Both the plaintiff, the United States, and the defendant,
William L. Matheson as executor of the estate of Dorothy
Gould Burns, have moved for summary judgment in the
first action by the government to recover an income tax
refund of $10,790.99 made to Mrs. Burns’ estate (73 Civ.
2011). Additionally, the government has moved to con-
solidate a related case (United States v. Matheson, 74 Civ.
2437 (KTD)) in which Mr. Matheson, as executor, has
challenged a determination by the Internal Revenue Service
that the Burns estate is not entitled to refunds of close to
$10,000 in gift taxes paid by Mrs. Burns in 1966, 1967 and
1968. Mr. Matheson’s only objection to such a consolida-
tion was on the grounds that he would be limited in dis-
covery which he sought in the other suit. However, the
document, a report from the Mexican Ministry of Foreign
Relations, which was at the core of this objection has since
been turned over by the government and Mr. Matheson’s
objection is therefore obviated.

Because the issues raised in the related action between
the same parties are identical to those raised in the instant
case, the motion to consolidate the two cases will be
granted, and my ruling on the motions for summary judg-
ment will be dispositive of both cases. It is also note-
worthy that a proceeding brought by Mr. Matheson in the
United States Tax Court to challenge the Internal
Revenue’s assessment against Mrs. Burns’ estate of ap-
proximately 314 million dollars in estate tax deficiencies
has been stayed pending the outcome of the case at hand.

The basis on which the income tax refund was made and
other tax refunds have been claimed is that Mrs. Burns
allegedly expatriated herself from the United States in
1944. The underlying facts are not materially disputed.

26a
Opinion of District Court.

Dorothy Gould Burns, born in 1904 in the United States,
lived abroad in Europe from 1919 to 1941 during which
time she married a Swiss nobleman and bore with him two
daughters. When that marriage did not work out in 1934
Mrs. Burns, whose 1919 passport had expired, returned
briefly to the United States on the basis of an affidavit
in lieu of passport issued by the American Consulate in
Paris, France. Her application for a passport was re-
jected and Mrs. Burns was apparently incorrectly informed
that her marriage and extended residence abroad con-
stituted presumptive loss of U. S. citizenship which could
be regained only by naturalization. She did not undertake
such naturalization proceedings and returned to Europe
where in 1936 she was divorced from the Swiss nobleman.
Thereafter, she lived abroad and used another affidavit in
lieu of a passport in her travels until 1940 when she sought
to leave Europe. The German invasion of France had
prompted Mrs. Burns’ departure, but she was denied entry
into Portugal (her intended point of departure) because
she lacked a passport. The Department of State, through
the American Consulate in Spain, then granted Mrs.
Burn’s application for a passport for the limited purpose
of passing through Spain and Portugal to the United
States. The passport expired in November, 1940. In the
year 1941 Mrs. Burns left the United States for Cuba where
she met Mr. Burns, a native Mexican of Scottish ancestry,
who was to become her second husband. In 1942 the two
went to Mexico where in May, 1944, they were married. A
third daughter was born to Mrs. Burns of this marriage.
In December, 1944 Mrs. Burns executed an applicat.on for
a certificate of Mexican nationality. The certificaic was
eee execution of this application for a certificate of
Mexican nationality which the executor claims expatriated
Mrs. Burns from the United States. The government on

27a
Opinion of District Court.

the other hand contends that the application was not ex-
patriating either in fact or in Mrs. Burns’ subjective in-
tent. Moreover, the government argues that the estate is
estopped from claiming such an expatriation.

The actual application for a certificate of nationality
will be discussed infra; however, the events following the
execution of the 1944 application are essential to an under-
Standiuy of the various claims and will be reviewed first.

In 1946, Mrs. Burns applied to the Mexican government
for the immigration of her oldest daughter, Rolande, as
the daughter of a Mexican national.

In 1947 Mrs. Burns, although in possession of a Mexican
passport, applied for a United States passport. In this
application she made no mention of her application for a
certificate of Mexican nationality and misstated her hus-
band’s citizenship as British, rather than Mexican. The
passport was granted and repeatedly renewed, even after
Mrs. Burns revealed that her husband was, in fact, a
Mexican and after the State Department, on investigation,
learned that Mrs. Burns had been issued a certificate of
Mexican nationality.

In 1953 apparently Mrs. Burns went to France to visit
her ailing father. She remained in France for the rest of
her life, becoming in 1956, the year of her father’s death,
a permanent resident of France. Mrs. Burns died in 1969.
After the death of Mrs. Burns, the executor of her estate
learned of her 1944 application for a certificate of Mexican
nationality and based upon it filed claims for refunds of
income and gift taxes for the years 1966-1968 and for an
overpayment of estimated taxes in 1969.

The lawsuits consolidated herein were brought (1) by
the government to recover the refund of 1966 income tax
(refunds made for 1967 and 1968 have not yet been chal-
lenged by the government) and (2) by the executor to
recover gift taxes for 1966, 1967 and 1968. As noted
above, a proceeding by the executor in the Tax Court

28a
Opinion of District Court.

lenging the assessment of an estate tax deficiency of
pms 31% million dollars has been stayed pending
the determination of this case since the identical issues

i ved in both. ; |
ae for a certificate of nationality which
is at the center of this controversy was executed by Mrs.
Burns in 1944. It was prepared in Spanish by a Mexican
attorney, Francisco Liguori, and reads in pertinent part:

“T herewith formally declare my allegiance, obedi-
ence and submission to the laws and authorities of
the Republic of Mexico; I expressly renounce all pro-
tection foreign to said laws and authorities and any
right which treaties or international law grant to
foreigners, expressly furthermore agreeing not to
invoke with respect to the government of the Be-
public any right inherent in my nationality of origin.
(From a translation certified as accurate by the
Lawyer’s & Merchant’s Translation Bureau).

The executor of Mrs. Burns’ estate repeatedly charac-
terizes this declaration as a renunciation of American
citizenship. Both the government and the executor de-
vote a substantial portion of their most exhaustive briefs
arguing whether this declaration was in 1944, required by
Mexican law.

Mexico’s Nationality and Naturalization Law, Article
2, as I find it, was amended as of December 31, 1949 to
explicitly require of an alien marrying a Mexican a re-
nunciation of other citizenships and a protest of allegiance
to Mexico. According to Mr. Matheson, this amendment
was simply a codification of a pre-existing requirement.
It is his position that women marrying Mexican citizens
did not become Mexican citizens themselves until they be-
came naturalized by applying for and receiving a certifi-
eate of nationality.

29a
Opinion of District Court.

The government contends that such women became Mex-
ican citizens by operation of law upon contracting a valid
marriage with a Mexican citizen. Such declarations of
allegiance were, in the government’s view, purely admin-
istrative requirements of the Mexican Foreign Ministry,
not dictated by law.

The significance of the differing interpretations of the
Mexican law is that if citizenship were not acquired
automatically upon marriage, then the oath was under-
taken to procure citizenship and may indicate an inten-
tion to abandon United States citizenship. If, however,
Mrs. Burns became a Mexican citizen immediately upon
marriage, then her application for a certificate of na-
tionality can be seen as a routine act of a dual citizen
availing herself of a perogative of her Mexican nationality.
See Kawakita v. United States, 343 U.S. 717 (1952) ;
Jalbuena v. Dulles, 254 F.2d 379 (3d Cir.1958).

The arguments developed by the parties as to whether
the 1949 law merely restated or changed existing law are
both very persuasive. However, a close reading of the
pre-amendment statute indicates that even if it was neces-
sary under the old law to apply for a certificate of naturali-
zation, the oath required was merely on oath of allegiance
to Mexico, not an explicit renunciation of one’s former
country as required by the 1949 amendment. As such, the
intent of the declarant, in this case Mrs. Burns, in making
the oath is not explicit on the face of the application. This
is true because an oath expressly renouncing United States
citizenship, as is required by the 1949 amendment would
leave no room for ambiguity as to the intent of the ap-
plicant. However, an oath of allegiance to Mexico, with-
out more, by one believing herself already a Mexican citi-
zen by virtue of marriage, could be merely descriptive of
her status as a dual citizen of both Mexico and the United
States. See Kawakita v. United States, 343 U.S. 717
(1952); Jalbuena v. Dulles, 254 F.2d 379 (3d Cir, 1958) ;

30a
Opinion of District Court.

Tanaka v. I.N.S., 346 F.2d 438, 448 (2d Cir. 1965) (Kauf-
man, J., dissenting).

In fact, the oath taken by Mrs. Burns contained just
such a declaration of allegiance to Mexico, but contained
no renunciation of her United States citizenship. The
only language which is even susceptible of misinterpreta-
tion as a “renunciation” of United States citizenship is
that portion of the declaration in which Mrs. Burns:

“renoune[ed] all protection foreign to said laws and
authorities [the laws and authorities of Mexico] and
any right which treaties or international law grant to
foreigners, expressly furthermore agreeing not to in-
voke with respect to the government of the Republic
any right inherent in my nationality of origin.”

However, it is a recognized fact of international law that
a dual national is never entitled to invoke the protection
or assistance of one of the two countries while within the
other country. See Nishikawa v. United States, 356 U.S.
129, 132 (1958); Kawakita v. United States, 343 U.S. 717,
733 (1952). Thus, by that part of the declaration Mrs.
Burns forfeited no rights as an American if in fact she
believed herself to be a dual national. In fact, the lan-
guage quoted above tracks the language of the pre-1949
statute (Article 17 of the Mexican Nationality and
Naturalization Law) which was altered by the December
31, 1949 law to require an express renunciation of the
declarant’s nationality of origin.

It becomes, then, crucial to look to Mrs. Burns’ intent in
executing the application for a certificate of nationality.
An oath of allegiance to another sovereign will not be
construed as expatriating without proof of subjective in-
tent to renounce United States citizenship. See Afroytm v.
Rusk, 387 U.S. 253 (1967) ; King v. Rogers, 463 F. 2d 1188
(9th Cir. 1972); Tanaka v. I.N.S., 346 F. 2d 438, 448 (2d
Cir. 1965).

3la
Opinion of District Court.

On the question of Mrs. Burns’ subjective intent in apply-
ing for the certificate of nationality there is considerable
evidence that she believed herself to be a dual citizen of
the United States by birth and of Mexico automatically
by marriage. Mrs. Burns’ attorney at the time of the
application, Francisco Liguori, stated in his deposition
that upon marriage she became a Mexican “as a matter
of law” and that the certificate was merely a recognition of
that fact by the ministry of Foreign Relations. In
numerous documents, including a 1953 application for a
United States passport, Mrs. Burns reiterated the fact
that her Mexican citizenship existed by virtue of her mar-
riage to a Mexican. The certificate of nationality itself
recites that “she acquired the Mexican nationality as of
the date of her marriage.” Even Mr. Matheson’s first
affidavit in support of the motion for summary judgment
contains an admission that upon her marriage Mrs. Burns
became a Mexican citizen, although he later argues that
such a theory is unknown to Mexican law. The fact that
Mrs. Burns had, years earlier, been erroneously informed
that she had lost her U.S. citizenship by virtue of her
marriage to a Swiss Baron is irrelevant since she had
subsequently applied for and received a United States
passport.

It is clear from the record that Mrs. Burns applied for
the certificate (1) so that her daughter, Rolande, could
immigrate to Mexico as a preferred immigrant with a
Mexican parent and (2) in order to obtain a passport since
a Mexican citizen cov!d neither leave nor enter the country
without one, and a certificate was necessary for the acqui-
sition of a passport.

There is also considerable argument by the parties
about Mrs. Burns’ facility in the Spanish language and
a her understanding of the oath. However, her execu-

r’s insistence that she was fluent in Spanish is accepted.
This being so, Mrs. Burns must have understood that the

32a
Oninion of District Court.

words in the oath, as discussed above, contained no renun-
ciation of her United States citizenship. For this reason
the oath will speak for itself since, as Mr. Matheson him-
self argues, she was bound by the contents of a document
she signed. The oath itself overcomes the ambiguous testi-
mony of Francisco Liguori at his deposition. According
to Mr. Matheson’s understanding of the testimony, Liguori
told Mts. Burns some 30 years ago that by executing the
application for a certificate, she was renouncing her Ameri-
ean citizenship. It is unclear that this was, in fact, what
Liguori said te Mrs. Burns. Rather, his testimony must
be read as saying that he merely restated the oath to Mrs.
Burns, explaining that she was forfeiting the protection of
all foreign countries against Mexico. :
Mr. Matheson cites numerous cases in which American
citizens lost their American citizenship by becoming nat-
uralized citizens uf other countries. See, e.g., Savorgnan
vy. United States, 338 U.S. 491 (1950) ; King v. Rogers, 463
F. 2d 1188 (9th Cir. 1972). However, in Savorgnan, which
was incidentally pre-Afroyim, the individual explicitly re-
nounced her United States citizenship as a pre-condition of
her naturalization as an Italian citizen. Likewise in K ing,
the plaintiff dernonstratec that he had the requisite intent
for loss of citizenship when he became a British subject
and informed the American Consulate that he was willing
to make a formal renunciation. ;
These cases are clearly distinguishable from Mrs. Burns
case in which there was no explicit renunciation; the sub-
jective intent to expatriate herself was lacking; and her
citizenship was apparently by operation of law—not by
naturalization undertaken by Mrs. Burns. To be sure the
Mexican law speaks of womeh marrying Mexicans as nat-
uralized Mexican citizens; but this is a semantic argument.
The weight of the proof indicates that Mrs. Burns acquired
Mexican citizenship upon marriage and that the applica-
tion for and issuance of the certificate constituted an addi-

33a
Opinion of District Court.

tional formality executed for, as the certificate its-lf states,
“legal use which may be convenient... .” This was no
renunciation process as in the cases cited above.

Finally, on the question of intent, the subsequent acts
of the now deceased Mrs. Burns have to be probative. See
Kawakita v. United States, 343 U.S. 717 (1952) wherein
a single application for a U.S. passport after the allegedly
expatriating act was considered on the question of intent.
After applying for and receiving a certificate of Mexican
nationality, Mrs. Burns repeatedly applied for and received
United States passports; paid United States income and
gift taxes as a citizen; represented to French authorities
that she was an American citizen; and even sailed a plea-
sure boat under an American flag and a license issued upon
her certification that she was a citizen of the United States.
Certainly, all of these actions are consistent with and com-
pel the conclusion that Mrs. Burns intended to remain and
believed herself to be a United States citizen.

The executor argues that Mrs. Burns did not believe
herself to be a United States citizen. Desiring the com-
fort and convenience of travelling on an American pass-
port, she allegedly lied in her passport applications by
representing herself as an American citizen and, in one
application, representing her husband to be a British,
rather than a Mexican, subject. Moreover, the executor
argues that such a misstatement taints the credibility of
her other representations in applications for United States
passports. If this is true, then the government must suc-
ceed on its alternative theory of equitable estoppel. The
executor of Mrs. Burns’ estate stands in the same position
as the deceased would were she a party to this litigation.
See Simons v. United States, 333 F. Supp. 855 (S.D.N.Y.)
aff'd on other grounds, 452 F.2d 1110 (2d Cir.1971);
Kurz v. United States, 156 F. Supp. 99 (S.D.N.Y.), aff’d
254 F. 2d 811 (2d Cir. 1957). Mrs. Burns’ repeated lies
(accepting arguendo that characterization of her state-

34a
Opinion of District Court.

ments) to the government that she was an American citi-
zen, estop her estate from now claiming that she was not
an American citizen, and that her income and gift taxes
should be refunded.

The executor attempts to counter that an estoppel argu-
ment is unavailable to the government since it neither re-
lied on Mrs. Burns’ misstatements nor suffered any detri-
ment. This contention of no reliance is based on the fact
that the government eventually learned that Mrs. Burns
had been issued a certificate of nationality and knew that
it was the policy of the Mexican government to require an
oath of the applicant before issuing such a certificate.
However, the United States government consistently be-
lieved, and there is a multitude of documentary evidence
on this, that, despite any subsequent conflict in the inter-
pretation of Mexican law, such an oath was an administra-
tive requirement not to be construed as expatriating. This
being so, the knowledge that the certificate had been issued
in no way precluded the government’s reliance on the rep-
resentations of Mrs. Burns that she was an American
citizen.

As to whether the government suffered any detriment,
the issuance of United States passports and licenses based
upon fraudulent representations must clearly be seen as
detrimental reliance which will support an estoppel. See
Simons v. United States, 333 F. Supp. 855 (S.D.N.Y.), aff’d
on other grounds, 452 F. 2d 1110 (2d Cir.1971). The con-
tention by the executor that it was the United States
which, by the receipt of Mrs. Burns’ taxes, was unjustly
enriched merits no comment. As was said by Mr. Justice
Douglas in Kawakita, supra, “one cannot turn it [ Ameri-
ean citizenship] into a fair-weather citizenship . . .” 343
US. at 736.

There being no disputed material facts, either of the
two theories set out above supports and award of summary

35a
Opinion of District Court.

judgment in favor of the United States. Either the oath
did not constitute a renunciation by Mrs. Burns of her
American citizenship and she was a dual national, or her
conduct in misrepresenting herself as an American citizen
estops the executor of her estate from claiming otherwise.
It is unnecessary to reach the merits of the government’s
collateral estoppel argument.

/s/ Kevin Tomas Durry
U.S. D. J.

Dated: New York, New York
May 8, 1975

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2365%3A1. Public record. Not legal advice.