Petition for Writ of Certiorari — Rexach v. United States
Supreme Court brief1968
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SUPREME COURT. U. & Se eaek chet JUN 8 1968
v
e. ?
ad
JOHN F. DAVIS, CLERK .
an the
Supreme Court of the Wied States
- OcToBER sam, 1968
No. —_
FELIX BENITEZ REXACH,
PETITIONER,
Vv.
UNITED STATES OF AMERICA.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
Watters L. Newsom, JB.
P.O. Box 2152
San J uan, Puerto Rico 00903
Brown, Newsom & Corpova »
Attorneys for Petitioner
Blanchard Press, Inc., Boston, Mass. — Law Printers
~ INDEX’
Opinions Below ............... Vek ene saber ee een
Jurisdiction ..... ahead dae dee oak Ser re eee
Question Presented .................. PO ee ee -
Statutes Involved ........... ivecs Oreeeeeneens Dos
Reasons for Granting the Writ iad dead vette
Conclusion ....°.....° ‘' id kM Re Se es ‘eeetes oS
Appendix A — Opinions Below of the United States
‘District Court for the/District of Puerto Rico ...... 17
Appendix B — Opinién Below of the United States -
Court of Appeals for the First Circuit ....:....... 23:
Appendix C — Opinion Below of the Board of Review
on the Loss.of N situs, SE ete ere 26
Appendix D — Statutes Involved eh RT PPR 32
TABLE oF CITATIONS
—»& Authorities
Beys Afroyim v. Dean Rusk, 387 U.S. 253, 87 8.Ct.1600 8°
Curry v. McCanless, 307 U.S. 367, 83 L. Ed. 1339 ...... 16.
Ceaplicki v. The Hoegh Stlvercloud, 351 U.S. 525,100. 4
| er 11°
Fitch, et al. v. Wisconsin Tax Commission, et al., 230
N.W. 37, 201 Wis. 383 ...... Wet aeac uv eheeeeer eee 14
Linezalone v. Dulles, 120 F.2d 107 :.... 2.005.000.0200... 11
Eocal No. 438 v. Curry, 371 U.S. 542, 9 L. Ed. 514, 83°
S. Ct. 531. . Ea Pe ete Pek pay Races cat
S.Ct. 10
SF OE GT OOP OH 2 8 ee SE O'S CD Ft be SS ee SSE eS Se & ele
eeee¢ @ 0's © 6 6 © @ EU'S +6 ¢ GR Be
ii ag | ees Index Le
«
> : ° .
M’Culloch v. The State of Maryland, et al., 4. Wheat _
| 316, “SS 5 serene; errr ree rrr. errs 14
ae Michigan R. Com. v. Detroit é M. R. Co., 178 Mich. 230,
' 144 N.W. 696, affd. 240 U.S. 564, 60 L. Ed. 802, 36
Te Seen rr rer erry ry ree ee te coe t il
Mills v. Alabama, 384 .U.S. 214, 16 L. Ed. 2d 484, 86 ©
S.Ct. 1434 ..... PPO Peers Pye re re rr: erty eee 2
‘Perez v. Brownell, 356 U.S. 44, 2 L. Ed. 603, 78 S.Ct.
RE: ent errr rad ger emer re eas 9
Pope v. Atlantic Coast Line R. Co., 345 US. 379, 97 -
-—s ©) Se LC eeererrrrrere rere ee:
Pullman Co. v. Richardson, 261 U.S. 330, 67 L. Ed. 682, —
Pe, SO errr er errr TT ree eee . w
- Redfield v. Fisher, 292 P. 813, )) 2) SS eee re
‘Schneider. v. Rusk, 377 U.S. 163, 12 L. ‘Kd. 2d 218, 84 ,.-
~§.Ct. 1187 ....... ee Mr nn nes, ge 8
Shields v. Utah Idaho .C.R. Co., 305 USS. 177, 83 L. Ed.
191, OO GCA. 100 |... 5 ce goddess Pree eee er 11.
Tait v. Cook, 256 U.S. 47, 68 L. Ed. 895 ete i. @
Union Refrigerator Transit Co. v. The Commonwealth
of Kentucky, 199 U.S. 194, 50 L. Ed.150.......:. exe
U. 8. v. Cruikshank, 92 U.S. 542 ... 0.26660 eee —
Yamamoto v. Acheson, 93 F. Supp. 346 ........------ 10
Statutes
SUSC 1104 22... eee eee eee ener nets ae
8 USC 1481 ...... eee eet My Peery reer rer rT. 3
26 USC 871, 1958 Ed. ae ide es ease
EE oc kbc viepsvetanciy shan eernceerants ere
Ee deh naa cek wow vb nneo vers Segue ta eons 2
— 28 USC 1340 .... 2... eee eee Pe ey ys 8
3 6g: ae Pere Pere, er ere erry 8
— |
an cite irate hale tied cael
_ Index iii’
oe cn | a _ Page
NE ise cutee op rate rege NGtire ae
oc, . SORES OE DEES TCE ET En Tee eer e ere ae
Act of March 2, 1917, CG. 145, 39 Stat. 951 ...... ere 3,18
-
M iscellancous
22 C.F.R., ‘Der, as of Jan. 1, 1967, Ch. 1; ‘ube. KF.
ne ARE Re el eh PN Nan es SE es ie a a ee PN 9
50.50(b) Paoaa, SP ee I SOUR ep
22 C.F .R., Rev. as of Jan. 1, 1967, Ch. 22, Subch, F. 50.2
ve C.F.R., Jan. 1, 1967, Rev., Ch. I, Subch. F. 50.60- |
|. Teer is Ba nf SDE TPES FEDS re rE EE
ee | Peer rrr eee
2 Am. i: Te GE oc ee vee tes essenss rece eree
Black’ 's Law Dictionary, 3rd Ed., pg. 329 ............
“*s
a = Oe ae ae e i: cig So eS a ts ai hea cnc Ah De ee ae a ees Dea I de a ee eee
aes wie
Supreme Court nf - Hnited States
; Oocrosan Term, 1967
‘No. -
. FELIX BENITEZ REXACH, |
PETITIONER,
UNITED STATES OF AMERICA.
PETITION FOR A WRIT oF CERTIORARI |
TO THE UNITED STATES COURT OF APPEALS .
7 FOR | FIRST CIRCUIT |
_ Feu Benrrez Rexacu, the Petitioner, prays that a writ
of certiorari issue to review the judgment of the United
States Court of Appeals for the First Circuit.
Opinions Below
The opinicns of thie United States District, Couit for '
° the District of Puerto Rico entered November 24, 1967
- and December 4, 1967 (Appendix A, infra., p. 17), are not
2
‘ “officially reported. The opinion of the United States Court
of Appeals for the First Circuit, entered March 11, 1968
(Appendix B, infra., p. 23) is officially reported at 390 F’. 2d
_ 631. The opinion of. the Board of Review of Loss of Na-
tionality entered June 25, 1962 (Appendix C,-infra., p. 26)
is not officially reported. __ : |
‘Jurisdiction
This is a petition for review on certiorari by defend-
ant-appellant, Felix Benitez Rexach from ‘an order filed
and entered on March 11, 1968 of the United States Court
of Appeals for the First Circuit affirming the order filed
~ fynd entered by. the United States. District Court for’ the
- District of Puerto Rico on November 24, 1967, which denied
' . petitioner’s motion dated May 5, 1967 for summary judg-
ment of dismissal of the amended complaint. ‘
The juriSdiction of this Court is invoked under 28 USC
1254(1).? 7
nl Question Presented
The question invoked is whether during the period
i from July 18, 1958, when an administrative determination
of loss of petitioner’s nationality was mgde by the State .
Department; as evidenced. by a Certification of Loss of
1'Although a denial of a motion for summary judgment is ordinarily
not a final judgment, it is the petitioner’s contention that the judgment
is final within the meaning of 28 USC § 1254 and within the scope
of Pope v. Atlantic Coast Line R. Co., 345 US 379, 381-383, 97 L Ed.
1094, 1098, 1099, 73 S. Ct..749. Local-No. 438 v, Curry, 371 US
542, 548-551, 9 L.Ed. 514,,518-520, 83 S. Ct. 531; Mills v. Alabama,
384 U.S. 214, 217-218, 16 L Ed. 2d 484, 487, 86 S. Ct. 1434.
This finality is re-inforced by the fact that this order was certified
to the U.S. Court of Appeals for the First Circuit by the U. S. District
Court for the District of Puerto Rico under 28 USC 1292(4) (Appen-
dix A, infra., pp. 21, 22),.and by the fact that it was reviewed by
the Court of Appeals. .
3
Nationality, until such-determination was reversed by the
Board of Review for Loss of Nationality: (June 25, 1962),
the petitioner while residing in a foreign country, is tax-
‘able on foreign source income.
Statutes Involved
The following statutory provisions are set forth in
Appendix D, infra., pp. 32-39: Section 349 of the Immigra-
tion and Nationality Act of 1952 (8 USC 1481), and Section
871 of the Internal Revenue Code of 1954, as amended
through September 21, 1961 (26 USC 871, 1958 Ed.).
Statement of the Case
Petitioner, having been born March 27, 1886 in the Is-
land of Vieques, a part of Puerto Rico, became on March
2, 1917 a citgzen of the United States of America pur-
suant to the provisions of the Organic Act of Puerto Rico
of 1917 (39 Stat. 951, 953; 48 USC 731, et seq.).
On July 14, 1958 Petitioner, then residing and being
present in the Dominican Republic, made a formal and
written renunciation of his United States citizenship be-
fore the U.S. Consular Office as provided for in Section
349(a)(6) of the Immigration and Nationality Act of
1952 (8 USC 1481(a) (6)) (Appendix D, p. 37).
‘‘(a) From and after the efféctive date of this chap-
_ ter a person who is a national of. the United States
whether by birth or. naturalization, shall lose his
nationality by
**(6) moking a formal renunciation of nationality
before a diplomatic or consular officer of the United
Way arr ern > tia hd
4
States in a foreign state, in sueh form ks may be pre-
scribed by the Secretary of State;...”’. ;
In the prescribed form
‘s. ... The renunciant must include on the form he
Signs a statement that he absolutely and entirely re-
nounces his United States Nationality together with
all rights and privileges and all duties.of allegiance
and fidelity thereunto pertaining.’’
(22 U.S. Code of Federal Regulations, Rev. as of Jan.
1, 1967, Ch. 1; Subch. F, 50.50(a)).2 The renunciation and
' Certificate of Loss of Nationality was approved by the .
Department of State July 18, 1958.°
Following this determination of loss of nationality the
United States registration of petitioner’s ships were can-
celled since under statute (46 USC 11) vessels belong-
ing to an individual not a @itizen of the United States
‘are not admissible to registry as American vessels and
are not. entitled to the benefits and privileges pertaining
to an American vessel; and the U. 8, Consular and Immi-
gration Service took up his ‘American passport and re-
stricted his entry and transit into and through Puerto
2 The regulations also provide that the consular official before whom
the renunciation is made shall forward to the Secretary of State “the
oath of renunciation together with the Certificate of Loss of Nationality
as provided by Section 358 of the Immigration and Nationality Act.
If the officer’s report is approved by the Department, copies of the
Certificate should be forwarded to the Immigration and Naturalization
Service, Department: of Justice, and to the person to whom it relates
or his representative.” (22 C.F.R., Rev. as of Jan. 1, 1967, Ch. I,
Subch. F, 50.50(b) ). : .
3 By section 104 of the Immigration and Nationality Act of 1962,
the Secretary of State is charged with the administration and enforce-
- ment of the Act and all other immigration and nationality laws and
the determination of nationality of a person not in the United States,
_and with establishing regulations therefor (8 USC 1104).
OO ae
5
Rico to that of a non-resident alien, and in all other
respects he, was treated as a non-resident alien. of the
United States. He was decreed to be a citizen of the Domi-
niean Republic July 26, 1958 and held a passport issued
by the Dominican Republic.
On May 30, 1961 the Dictator Trujillo of the Dontini-
_ ean Republic was assassinated by a group of Dominicans’ ~
who sought to take control of the government. In this, the
group was unsuccessful and almost all were hunted down
and killed. The former Dictator’s government did not im-
mediately fall but was taken over by his son, Ramfis, aided
by others of the Trujillo family, and it was not until sev-
eral months later that the Trujillo family withdrew from
the Island, and a new provisional government set up. Fol-
lowing this a series of interim governments were consti-
tuted but each quickly fell, and until the military inter- .
vention of the United States, followed by intense diplo-
matic activity resulting in the present government, un-
rest and chaos existed in the Dominican Republic.
Some time prior to March 2, 1962, Petitioner wrote the
former American Ambassador to..the Dominican Repub-
lic, that the renunciation of American citizenship he had
made in 1958 was not voluntary but was impelled by du-
ress of Dictator Trujillo, a copy of which letter was sent to
his attorney. His attorney then advised him that if such
was the case the renunciation would be set aside if the
preponderance of the evidence showed it to be not volun-
tary, see decision of the Board of Review of Loss of Na-
tionality, Appendix D, pp. 26-31. Up to that time it does
not appear that petitioner knew that his renunciation was
voidable.
On March 2, 1962 Petitioner filed with the U. S. Consul
in Santo Domingo, D.R. an application for an American
passport with his affidavit claiming that this renuncia-
6.
tion in 1958 was not voluntary.* The Consul told petitioner
that he was an alien, was entitled to no protection from
-the United States, and that no passport could be issued to
him, but he referred petitioner’s claim of citizenship to the
‘State Department with the opinion that petitioner’s re-
nunciation in 1958 had resulted in loss of his nation-
ality. ‘eect l
The Secretary of State treated the claim as an appeal
to the Board of Review for Loss of Nationality from the.
determination of the Secretary of State of its loss by peti-
tioner evidenced by the Certificate of Loss of Nationality
issued July 18, 1958.5 eee, ae Oe
_ After-hearing, the Board, on June 25, 1962 rendered its
decision in which it said: _ eRe ie
*¢... Mr. Benitez Rexach has alleged and submitted
corroborative evidence to the effect that his formal
-renunciation of United States. citizenship was an act
compelled by not only fear of financial loss or ruin,
but also that he was in fact, in fear of his personal
safety if he refused to obey the alleged commands of — |
the Dominican Government to divest himself of his
American Status.’? _ |
- — ** Evidence rebutting: or tending to affirm the con-
trary of Mr. Benitez Rexach’s position on appeal is
not particularly impressive nor present in any mag-
eF
4 Regulations of the Secretary of State provide:
“The Department shall determine claims to United States Na-
tionality when made by persons abroad on the basis of an,appli-
cation for registration, for a passport, or for registration of. birth.”
_ (2 C.F.R., Rev. as of Jan. 1, 1967, Ch. 22, Subch. F, 50.2)
5 In its decision the Board said: : ag
“This matter comes before the Board of Review on the Loss of
Nationality as:an appeal from a determination by the Department
of State, dated July 18, 1958, that Felix Benitez Rexach lost his -
_ United States citizenship :..” ( Appendix C, infra., p. 26)
7
nitude. What little there is appears to lead to a,con--
clusion that it was the Department’s previous posi-
tion that appellant acted totally out of self-interest
and freely in renouncing his citizenship. ... , the Board
is of the opinion that the appellant’s evidence. .. .
successfully rebuts any presumption or allegation of
fact of voluntariness by a preponderance. ie
and unanimously held as follows :-
‘‘Accordingly, the Department’s previous determina-
tion that Mr. Felix Benitez Rexach expatriated him-
self under Section 349 (a) (6) of the Immigration and
Nationality Act of 1952, as amended, is reversed. -
(Appendix C, infra., p. 31).
The Regulations provide that a person who contends that
the State Hisediaaes ake ake holding of loss of
nationality is contrary to'law and fact may appeal to the
Board within reasonable time after notice of such deter-
mination; that the Board shall‘ consider the appeal and .
take any action it considers necessary and proper to dis-
pose of the case; that it shall receive evidence and if
there is a hearing hear argument on the applicable facts -
and law; that the Board’s decision shall be by a ma-
jority in writing and shall set out with particularity find-
ings of facts and conclusions of law, shall make a tran-
script of the record and furnish copies, and that the Board’s
decision shall be promptly notified to appellant; that the
Board shall consist of three members who are attorneys-
at-law and experienced in the law of nationality and citi-
zenship of the United States (22 F. C .R., Jan. 1, 1967 Rev.,
Ch. I, Subch. F,, 50.60-50.72).
The Certificate of Loss of, Nationality was cancelled
and an American passport issued to petitioner.
&
_ By the amended complaint. the United States (Commis-
‘sioner of.Internal Revenue) seeks to foreclose alleged tax
liens to eollect jeopardy assessments of income taxes for the
~ealendar years 1959 and 1961 on alleged income received
by petitioner from sources outside the United States. Juris-
diction in the United States District Court was based on
Sections 1340 and 1345 of Title 28 of the United States
Code. F : ;
Reasons for Granting the Writ
I.
Petitioner submits that in this case the United States
Court of Appeals for’ the First Circuit has decided an im-
portant question of Federal Law, which has not been, but
should be settled by this Court, and further that the de-
cision of the Court of Appeals is in error and not in ac- ©
cordance with law. , ee
The question presented in this case gives rise to a corol-
lary question, that is, what is the effect of Beys Afroyim
v. Dean Rusk, 387 U.S. 253, 87 S.Ct. 1600, on the bene-
fits and liabilities of citizenship as to those individuals
- who by virtue of the Afroyim decision have been repatri-
ated. '
Does the Afroyim decision mean that individuals who
though treated as non-citizens prior to the decision, should
- now in the wake of the decision be subject to the liabili-
ties of: citizenship for the period of de-facto non-citizen-
ship? aed
‘The petitioner does not have records available as to
the number of repatriations resulting from, or which will
result from, the Afroyim decision or from theidecision in
Schneider v. Rusk, 377 U.S. 163 12 L. Ed. 2d 218, 84 S.Ct.
9
1187, but on the basis of Mr. Jestiis Clark’s eeaenarees at |
page 173 U.S. in the latter case that:
‘**In 1962 alone 919 persons were expatriated on the
basis of residence in countries of former nation-
ality.’’
the number will be substantial. | .
It is petitioner’s contention that the status of those
repatriated as a result of these decisions, with regard to —
_. the benefits and liabilities of citizenship duriag the period
of de-facto non-citizenship, is clearly in doubt and should
be resolved by this Court. Invalved herein is a case which
squarely presents this issue to the Court. :
What was the legal status of the petitioner, as regards
the benefits. and liabilities of citizenship, during the period |
of time-he was a de-facto non-citizen.
Petitioner is awure of no other case which raises this
precise question.
The decision of the Court of Appeals for the First Circuit
would seem to be a precedent for all questions of status
arising during the so-called period of suspended or de-
facto citizenship. ,
We believe that the effect of the decile of the Board
of Loss of Nationality in reversing the decision of the
Department of State in issuing the Certificate of Loss of
Nationality to the petitioner, because said renynciation
was involuntary i is no different from the effect of the Af-
royim decision on Mr. Perez (Perez v. Brownell, 356 U.S.
44,2 L. Ed. 603, 78 S.Ct. 568), or the many eters whe
lost their citizenship by voting in a foreign election; or
different from the effect of the Schneider decision on Mrs.
Schneider and the many others who lost their citizenship
by residence in a foreign country of former nationality.
Are Mr. Perez or Mrs. Schneider and others similarly
ie
- situated, during a period of non-residency in the United
States, subject to taxation by the United States from the
date of. expatriation, on foreign source income because of
the reversion of their citizenship as a result of A pa and
Schneider? ;
As Mr. Chief Justice Warren said in his dissenting’
‘opinion in the case of- Perez v. Brownell, supra:
‘‘This principle of ‘reversion of citizenship was a
familiar one in our own law and the law of foreign
states. The statute was caged declarative of the law
as it was then understood. .
The reference was to the case of McKenzie v. ‘Hare, 239
U.S. 299, 60 L. Ed. 297, 36 S.Ct. 106, in which the Court
sustained an act of Congress that a wife’s American citi-
zenship was suspended for the duration of her marriage
to an alien. At the end of the period in question.and as a
result of the decision of the said Board of Review, peti-
tioner was restored to her full rights of citizenship.
In the case of Yamamoto v. Acheson, 93 F.Supp. 346, 349,
where loss of nationality was “the result of duress, the
court stated as a conclusion of law: - | 7
‘‘The plaintiff is entitled to have her purported ex-
patriation cancelled‘and further entitled to be restored
- to her full rights of citizenship including the issuance
of a passport; and to - adjudged a citizen of the
United States.”
and entry of judgment to that effect was ordered. Such
restoration is that of status as a citizen, but it cannot
encompass the protection and other rights of citizenship.
which the petitioner could not and did not have during
said period. :
11
Is the United States iisiiniiiiials to proceed on a case
by case basis and say Perez is not subject to tax liability.
but Benitez Rexach is because the facts afe different even .
though the principles involved are the same? Petitioner
- eontends that a legal principle is involved which requires
clarification if the effects of Afroyim and Schneider are
to result in an orderly determination of the rights and
liabilities of those individuals, during the period of .so-
called suspended citizenship.
The legal query re-stated is, does a person who in fact
lost the privileges, benefits and rights of citizenship, and
then has these privileges, benefits and rights returned, suf-
fer the liabilities attached to citizenship during the period
when he in fact did not have the nigats, benefits and priv-
ileges of a citizen. | |
It was an actual fact not disputed by the government that
during the period of 1958 through 1962 petitioner was re-
garded and treated as a non-resident alien, he was not
treated as a non-citizen, his rights and liabilities were those
of a non-resident and the limitations of non-citizenship at-
tached to him for every purpose.
The Administrative determination of July 18, 1958 of
loss of citizenship was binding and effective until it was
impeached or set aside (Czaplicki v. The Hoégh Silver-
cloud, 351 U.S. 525, 100 L. Ed. 1387, 76 S.Ct. 946; Michigan
R. Com. v. Detroit & M. R. Co., 178 Mich. 230, 144 N. W.
696, affd. 240 U.S. 564, 60 L. Ed. 802, 36 S.Ct. 424) and
on both parties (Shields v. Utah Idaho C. R. Co., 305 U. S.
177, 83 L. Ed. 111, 59 S.Ct. 160; 2 Am. Jur. 2d 291-292):
This proposition of administrative law has been held to ap- .
ply to a Certifidate of Expatriation or Loss of Nationality
issued and approved by the State Department in the case
of Linzalone v. Dulles, 120 F. 2d 107, 109, in which court said.
and held:
12
. Such certification was a final administrative de-
cnceiaaiiial of plaintiff’s loss of nationality by the De-
partment of State. It finally denied ‘the plaintiff the
right or privilege as a national of the United States
to have his status as such recognized and tobe free
from the obligation of appearing at and defending the
deportation proceedings commenced subsequent to the
certification of loss of his nationality.”
Iti is the petitioner’s further’ contention that the stand-
ard adopted by the Court of,Appeals: ‘‘It is sufficient that
the government’s. (obligations) stem from its de jure rela-
tionship without regard to the subjective quid pro quo in
any particular case.’’, (Appendix B, infra., p. 25) is con-
trary to the sense of justice and fair play embodied i in our
judicial system, and has no basis in law.
Thousands of persons whose expatfiations were voided
as a result of Schneider and Afroyim will come under the
broad sweep of the decision of the First Circuit in this
case, and that decision is erroneous for the following rea- _
sons:
Il.
1. During the years 1959 through 1961 petitioner re-
sided in the Dominican Republic and as none of his al-
' leged income was from sources within .the United States,
- nor. was he engaged in a trade or business in the United
States, the only basis for taxation’ would have been the-
existence of a status of citizen of the United States (Tait
v. Cook, 256 U. 8. 47, 68 L. Ed. 895; 26 USC §-871, 1958
Edition, (Appendix D, pp. 32-36)*® but as .one of the
6 This section of the Internal Revenue as amended through Septem-
ber 21, 1961 was the basis of the imposition of tax on non-resident
aliens, a would be applicable to’ the taxable years in question. |
“ Se aan ins en aaggeonetinn ieee ans eres
&
eter a CVrMernget tet
EE
Prrecnaene Kary
. ment of full civil rights and the protection of the laws of |
ing this period.
ia During the period from July 18, 1958 to June 25, 1962 .
made one during that period in fact, any more than his
PO IT ep Fo, OF ENE PRE BPR IW ONION FON are" v ee ’ ye - ° santa be
o-s
13
a
elements’ of citizenship was missing, that is, the enjoy-
the United States, there was no basis for his'taxation dur-
The following is the definition of a citizen set forth
in Black’s Law Dictionary :
“One who ender the constitution and laws of the
United States, or of a particular state, and by vir-
tue of birth or. naturalization within: the jurisdiction
is a member of the political community, owing alle-
giance and being entitled to the enjoymest of full
civil rights.’’
Black’s. Law Dictionary, Third Ed. page 329, a
U.S. v. Cruikshank, 92 U.S. 542,
‘Citizenship is a membership in a political society,
and implies a duty of allegiance on the part of the
member and a duty of protection.on the part of so-
ciety. These. are reciprocal obligations, one being a
compensation for the other.’’ (Luria v. United States,
58 L. Ed. 101-105, 231 U.S. 9, 34 S.Ct. 10, 23; 3 Am.
Jur. 2d 982).
petitioner occupied the status of a non-resident alien and
had no protection nor any of the other rights and privil-
eges of citizenship. As a’ matter of fact he was not an
American citizen during said period, nor can he now be
vessels be registered as American vessels during that per-
iod. That period has transpired and it, cannot be recalled
and recast in a different mold. The application of legal
formulae such a ‘‘void ab. initio’’, or ‘‘absolutely void
and of no effect’’, cannot alter this factual. reality.
Ne
.2.. Liability to taxation.is based on the individual’s
reciprocal enjoyment of thé benefits of government and as
the petitioner was beyond the reach of government bene-
fits he was likewise beyond the scope of» the taxing
power. .
In Fitch, et al v. Wésconsin Tax Commission, et al, 230
N.W. 37, 201 Wis. 383, the executors of an estate applied
for a determination of the amount of income tax due from
‘the income of the estate during the year 1928, the estate was
distributed and went out of existence in 1928, but the
assessor of taxes assessed’ a mythical or assumed income
tax for the year 1929 and 1930.
In holding this tax assessment unlawful and. unjustly
imposed the Court at page 38 N.W. held that the justifica-
tion of textion is found in the reciprocal duties of pro-
tection and \support between the government and the citi-
zen, and that
‘*The exaction of a tax can only be justified from one
who is enjoying the protection of government either
_ for himself or for his property... .’’.
“In M’Culloch v. The State of Marijland, et al, 4 Wheat
316 at 4 L. Ed. 579, Chief Justice Marshall, when speak-
ing of the scope of the taxing power of the sovereign states
at page 429 U.S.: .
“Tt is obvious that it is an incident of sovereignty,
and is co-extensive with that to which it is incident. All
subjects over which the sovereign power of a state ex:
tends are objects of taxation; but those over which |
it does not extend, are upon the soundest. principles,
_ exempt from taxation. This proposition may almost
"be pronounced self evident.’’
Following this, basic principle we must conclude that as
_the powet of the United States Government did not ex-
tend over the petitioner during the period in question, pe-
titioner was not taxable during this period.
Mr. Justice Brown in the case of Union Refrigerator.
Transit Company v. The Commonwealth of Kentucky, 199
U.S. 194, 50 E. Ed. 150, in holding that due process of
law was denied a Kentucky corporation by a tax assess-
ment upon authority of a Kentucky. statute where the cor-
poration’s rolling stock was permanently located in other
states and employed there in the prosecution of its business,
stated:
‘fThe power of taxation, indispensable ‘to the exist-
ence of every civilized government, is exercised upon
the assumption of an equivalent rendered to the tax-
payer in the protection of his person and property,
in addition to the value of such property, or in the
creation and maintenance of public conveniences in
which he shares, — such, for instance, as roads,
bridges, sidewalks, pavements,’and schools for the
education of his children: If the taxing power be in
no position to render these services, or otherwise to —
benefit the person or property taxed, and such prop-
erty be wholly within the taxing power of another
state, to which it may be said to owe an allegiance,
- and to which it looks for protection, the taxation of
' guch property within the domicile of the owner par-
takes rather of the nature of an extortion than a tax,
and has been repeatedly held by this Court to be be-
yond the power of the legislature in the taking of
property without due process of law.’’7
7 This decision has been distinguished in that a tax may be made
to cover the enhanced value which comes to the property in the state
through its organic relation to the system. Pullman Co. v. Richardson, —
261 U.S. 330, 67 L Ed. 682, 43 S. Ct. 366, but the basic principle
enunciated in Justice Brown’s above cited statement remains valid.
16
3. That the only basis for taxing the petitioner is by
’ the creation of a legal:fiction, which is contrary to law.
An individual and a citizen, unlike a corporation, is
not subject to tax for the mere privilege of existing and
owning property, which are natural rights, Redfield v.
Fisher, 292 p. 813, 135 Or. 180, but is taxed as a result of
being a member of a political community which anorne him
the protection of its laws.
The only basis for taxing the petitioner would be through
the creation of a legal fiction, that is, that the govern-
ment by its very existence benefits an individual who is
not a member of the government’ s society nor entitled to
‘its benefits. '
‘‘While fictions are sometimes invented in order’ to
realize the judicial conception of justice, we cannot
define the constitutional guaranty in terms of a fic-
tion.so unrelated to reality without creating as many
tax injustices as we would avoid and without exer-
‘eising a power to remake constitutional provisions
which the Constitution has not given to the Courts.”’ ©
Curry v. McCamless, 307 U. 8. 357, 374, 83 L. Ed. 1339,
1351. |
If this fiction is created, the petitioner will be taxed
during the period in question on the basis of his mere
existence, and not on the basis of his membership in a poli-
tical society, we believe that this is directly contrary to
the. basic premise of democracy, that man does not exist ©
-to serve the state, but the state exists to serve the man. —
Conclusion ©
‘For rue Reasons Sratep, it is respectfully submitted
that this petition for certiorari should be granted.
\
\
17
Appendix A
In THE UNITED Srarzs DISTRICT Court
FOR THE District oF Puerto Rico
Civil No. 67-64
’ Unitep States or AMERICA,
Plaintiff,
“, v.
Fevrx Benitez Rexacnu, THE:
EscaMBRON DEVELOPMENT CoMPANY,
ET AL.,
Defendants.
MEMORANDUM
APPEARANCES:
For Plaintiff : :
‘/ Prancisco A. Gil., Jr., United States Attorney,
San Juan, Puerto hin.
For Defendant:
Rene Benitez, Esq., |
San Juan, Puerto Rico.
Van Pett, Judge.
This matter is before.the court upon the motion of de-
fendant Felix Benitez Rexach for summary judgment.
Plaintiff brought suit against the defendant.as an Ameri- ©
can citizen residing in Pyerto Rico, and others, to foreclose
tax liens on property in Puerto Rico of the moving defend-
ant, and in effect to collect jeopardy assessments, including
fraud penalties, made against Felix Benitez Rexach, who
will hereafter be called the defendant, for the calendar °
- years 1959 and 1961, in the sine i sum of three
million dollars.
The basic facts are not in serious dispute. Defendant
18 | :
was born in Puerto Rico in 1886.~ By virtue thereof, he
became a citizen of the United States on March 2, 1917, .
pursuant to the Puerto Rico Organic Act of 1917 (39 Stat.
951, 953). He became a domiciliary resident of the Domini-
can Republic in' 1944 and remained such until approximately |
1962. Defendant engaged in the construction business while |
in the Dominican Republic and had contracts with the ©
_ Dominican Republic for harbor works totaling more than
thirty million dollars., He had previous United States
income tax litigation for the years 1951 through 1956 in-
volving, among other things, claimed business expense in the
form of ‘‘kick backs’’ to Dictator Trujillo of the Dominican
Republic.
On July 14, 1958 he, appeared before the- United States
Consulate in the Dominican Republic and filed a renunci-
ation of his American citizenship. He served the Dominican
Republic in several capacities, including diplomatic service
and was given high honors and decorations as a result of
his service, — or the court must add, and a result. of his
‘friendship with Trujillo. Afterwards, in 1961, he received
payment from the Dominican Republic on a claim for addi-
tional compensation which had been earlier denied by the
_Dominican Republic, of $1,552,000 on orders of the Dictator.
‘This sum was immediately returned to the Dominican
treasury in payment of Dominican taxes owed by the de-
fendant for the years 1951 through 1956 (See deposition
-of: the former Secretary of Public Works and of the former
Secretary of Finance of the Dominican Republic.). By
virtue of this payment, he claimed, and received, large
foreign tax credits against his tax liabilities to the United
States for the years 1951 through 1956. It is the receipt
of this $1,552,000 which plaintiff is seeking to tax and
collect taxes thereon in this suit. .
On March 2, 1962 after the assassination of the Dictator,
-defendant appeared at the United States Consulate in the
19
. City pf Santo Domingo in the Dominican Republic request-
ing that a passport be issued to him and claiming that he
was a citizen of the United States. On the basis of the
renunciation of July 14, 1958, it was refused. With his
application he filed an affidavit, a copy of which is attached
to the plaintiff’s opposition to this motion for summary
judgment, in which he recites that the renunciation ‘of
July 14, 1958 was not voluntary; was made under duress
and coercion of the Dictator and because of threats against
him and his property. He claimed that-it did not operate
to. divest him of citizenship and should be considered ‘‘null
and void and of no effect. > The Consulate denied him a
passport.
Defendant contested the decision‘of the Consulate before
the Board of Review on Loss of Nationality in the passport
office of the State Department. On June 25, 1962, the Board
‘sustained his claim and held that the 198 renunciation
was made under duress and coercion ‘and was not voluntary -
and that he had not divested himself of his American
citizenship. ‘Thereupon, . a United States passport was
issued him.
The parties agree that this litigation v will largely stand
or fall on the decision on this motion. If defendant was
not a citizen during the years following the revocation and
until 1962, no tax is collectible on the $1,552,000. If he was
a citizén, then the suit can be maint ined and taxes i in some
amount are payable. —
The recent case of Beys A frovie \ v. Rusk, 387 U.S. 253,
"discusses at. length the history of attempts.to strip a person
of citizenship by Congressional enactment. While not in
point on the facts, it contains statements of the law that
have a bearing here. Among them, that it is not the govern-
ment but the individual who has the right and the only
power of expatriation: The majority opinion ends on a
note that a citizen has ‘‘a substantial right to remain a
\
‘~ ~
-
20
citizen in a free country unless he voluntarily relinquishes
that citizenship.’’ (p. 268) See also Hedelsohn v. Dulles,
207 F.2d 37 (D.C. Cir. 1953); Acheson v. Murakami, 176
F.2d 953 (9 Cir. 1949).
_ The basic question, therefore, is whether the defendant
voluntarily renounced his citizenship in 1958. If he did not,
then ever since 1917 he has been a citizen of the United
States.
Defendant’s position prior to this litigation was clear.
It was that the renunciation was not voluntary. Specifically,
he claimed that it-was under duress and the. result of
threats by the dictator. It is not consistent to hold that the
renunciation was effective during the period of duress and
that defendant regained his citizenship when the passport
was issued him. If the renunciation was effective, then’
defendant would not become a citizen of the United States
until he regained his citizenship from naturalization. If
the renunciation was void, then he never lost his citizenship.
Without comment upon whether defendant’s dealings
with the Dictator Trujillo and the Dominican Republic met
any approved moral or ethical standards, it does appear
as the Government contends, that the defendant makes his
claim to suit his interest at the time. Such action is not
viewed by the court with sympathy. The courts cannot
permit a person to. wear a mantle of citizenship when the |
person wishes or finds it profitable and lay it aside when
it is unprofitable.
It seems clear to the court from the wibewe before it
that the defendant was under duress and compulsion when
he made his renunciation in 1958, and that he never volun-
- tarily relinquished his citizenship., In’ that event, it was
void from the,beginning. — 3 :
It follows that the motion for summary judgment must
| be overruled.
Dated: November 20, 1967
21
EXHIBIT
In tHE Unitrep States District Court
FOR THE District or Pusrto Rico
Civil No. 67-64 |
Unirep States or AMERICA,
Plaintiff,
. v.
Fewrx Benitez Rexacnu; THE ©
EscaMBRON DEVELOPMENT CoMPANY,
ee ET AL.,
Defendants.
| ORDER
This matter is before the court upon the motion for
amendment of order filed by defendant Rexach on Novem-
_ ber 28, 1967, to permit an appeal to be taken as provided
under 28 U.S.C.A. 1292(4)(b). |
The court is of opinion that the order heretofore entered
involves a controlling question of law as to which there
is substantial ground for difference of opinion and that
an immediate appeal from the order may materially ad-
vanée the ultimate ‘termination of the litigation, and if the
court was in error in overhauling said motion it can result
in the saving of a great amount of time of the court, and
that defendant should be permitted to address an appeal
‘ to the U. S. Court of Appeals for the First Circuit within
ten days from the date of this prder.
Ir Is THEREFORE ORDERED BY THE Court that the order of
this court dated November 20, 1967 and filed November 24,
1967 be and the same is hereby amended to include as
a part thereof this order and the findings herein.
v
22 eae’
Ir Is Furruer Orperep, and‘the court here states in
writing, that the order and decision of this court overruling
the Motion for Summary Judgment involves a controlling
question of law as. to which there is substantial ground
for difference of opinion and that an immediate appeal
from such order may materially advance the ultimate termi-_
nation of the litigation and that the defendant should have
the opportunity to apply to the U. S. Court of Appeals
for the First Circuit within ten days from the entry of
this order for permission to take an appeal to said court
from this order.
Dated: November 30, 1967.
‘By tHe Court:
(s) Ropert Van Pett .
_ Judge, United States District Court
By Assignment. hae
\
\ ;
<a
. ae ; ) sen
23
Appendix B
_.» United States Court of ‘Appeals
| For the First Circuit
= D 7
oe . 4
No. 7052.
J FELIX BENITEZ REXACH, - .
DEFENDANT, APPELLANT,~-
Vv.
UNITED STATES OF AMERICA,
* PLAINTIFF, APPELLEE. .
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
Before Aupricu, Chief Judge,
McEntee and Corrin, Circuit Judges.
Walter L. Newsom, Jr., with whom Rene Benitez Rexach and ~
Brown, Newsom & Cordova were on brief, for appellant.
Mitchell Rogovin, Assistant Attorney General, with whom Francisco” ’
A. Gil, Jr., United States Attorney, and Meyer Rothwacks, Thomas
Silk, Louis M. Kauder, John J. McCarthy and Jerome H. Fridkin,
Attorneys, Department of Justice, were on brief, for appellee.
March 11, 1968.
om: Chief Judge.
This is an appeal by permission under 28 U.S. C. § 1292
(b) from the denial of defendant’s motion for a summary
_ judgment dismissing the complaint. .The record consists
of certain stipulations and exhibits, and the testimony of
. the defendant, watranting the following findings. as
1 We use the word “warrant,” although we might be osiiausl to’ say
“compels.” However, the government did not move for a partial sum-
—_ ¥ \ mary judgment, so we will not decide that question.
24
Felix Benitez Rexach, hereafter taxpayer, a native-
born Puerto Rican became an American citizen by virtue
of the Jones Act of March 2, 1917, 48 U.S.C. §§ 731 et seq.
In 1944 he left. Puerto Rico and became a resident of the
Dominican Republic, where he remained uritil 1961. In July
1958 he executed a written renunciation of his American
citizenship before a United States consulate official in the
_ Dominican Republic pursuant to the Immigration and Na-
tionality Act of 1952, 8 U.S.C. § 1481(a)(6). A certificate
of loss of nationality was duly approved by the Department
of State. On July 26 taxpayer was decreed to be a.citizen
of the Dominican Republic. Thereafter, he naturally suf-
‘fered certain losses of status and benefits as a consequence
-". of being declared a ‘non-resident alien of the United States.
Taxpayer was engaged in large scale contracting activi-
ties in the Dominican Republic in connection with the then
dictator, Trujillo. In 1961 Trujillo was assassinated. The
following year taxpayer applied for an American passport,
claiming that his 1958 renunciation was not voluntary but
had been compelled, against his will, by economic pressure
and physical threats that he feared to resist. The United
States Consul denied his application, and taxpayer appealed
to the Department of State. The Board of Review on the
Loss-of Nationality took taxpayer’s testimony and accepted
it, as a result of which his certificate of loss of nationality
was cancelled, and his passport application granted. There
- followed the present chapter. The Commissioner of Internal
Revenue assessed taxpayer with an income tax on account
of income earned in the Dominican Republic during the
years following his renunciation of citizenship, alleged to.
be due because of his continued American citizenship. Cook
v. Tait, 1924, 265 U.S. 47. Taxpayer not responding, the
present suit was brought: to foreclose liens in payment of
such taxes. Taxpayer shoved, unsuccessfully, for summary ©
' judgment on the claim that no taxes could be due.
Taxpayer concedes that as a matter of law/he is precluded
by the record from claiming that he ever ceased to be a
United States citizen, and concedes that during the period
in question he was a de jure citizen: “However, he says
that he was not a ‘‘de facto’’ citizen:
‘‘ Appellant does not clatm that his citizenship was
lost asa result of the renunciation, but that as a result
of the determination of the Secretary of State and con-
sequent issue of the Certificate of Loss of Nationality,
the United States was freed of its obligations to him
as a citizen and he in fact lived and existed as an alien
to the United States during the. period in question.’’
He concludes that since the United States ‘‘owed’’ him, or’
apparently owed him, no citizen’s protection, he, in turn,
owed no tax.
While there is language in Cook v. Tait, supra, indicative
that these are reciprocal obligations, the Court also ob-
served that ‘‘government by its very nature benefits the
-citizen....’’ 265 U.S. at 56. We cannot agree that the
reciprocal obligations are mutual, at least in the sense that
taxpayer contends. It is insufficient that the government’s
stem from its de jure relationship without regard to the
subjective quid pro quo in any particular case. We will not
hold that assessment of bénefits is a prerequisite to assess-
ment of taxes.?
Affirmed.
2 The ieinaihediats suggested by taxpayer during oral argument in-
volved aspects of estoppel on the part of the government. Whatever
may be the merit of such cases, that element is not: present here. f
» Adm, Office, U. 8. Courts — Blanchard Press, Boston, Mass. .
26.
ui Appendix C
EXHIBIT C
Govt. Ex. 38
BOARD OF REVIEW ON THE
‘ LOSS OF NATIONALITY
Passport OFFICE
Identification No. 38
For . (Ilegible)
| | June 25, 1962
| Case = : Fevix Benrrez Rexacu -
This matter comes before the Board of Review on the
-. Loss of Nationality as an appeal from a determination by
the Department of State, dated July 18, 1958, that Felix
Benitez Rexach lost his United States citizenship pursuant
to. Section 349(a)(6) of the Immigration and Nationality
Act.of 1952, as amended, by formally renouncing in due
and prescribed form such citizenship before a consular
officer of the United States while abroad.
Briefly, the pértinent established facts of record and
those alleged on appeal] are: that Mr. Benitez Rexach was
born at Vieques, Puerto Rico, on* March 28, 1887, and
acquired United States citizenship pursuant to the Act
of March 2, 1917; that he currently i is and has béen acting
‘for some years as a marine engineer; that in 1934 he ©
‘departed Puerto Rico and went to the Dominican Republic
for the purpose of fulfilling certain contracts executed
between ;himself and the Dominican Government; that he
_resided/in the Dominican Republic unti] 1940 when he
returned to Puerto. Rico where he remained until 1947 at
‘which time he returned to the Dominican Republic and has
since resided there; that in order to perform the above-
' stated contracts-with the Dominican Government he pur-
chased, imported and. maintained several million dollars
’
RRR ae BLE MEI NAOT PPI IO ath ohh ie ta nttinn se. a siteplaslacinnl wilh lnnaidieaiiee Maa
27
. \
worth of engineering equipment all of which currently
remain in that country; that between 1944 and the present
he has performed contracts in. the Dominican Republic,
the. total price of which allegedly. exceeds $30,000,000.00
of which an alleged amount of $10,000,000.00 was returned
or ‘‘kicked back’’ to the Dominican Republic for the privi-
lege of doing business; that in or about 1954 agents of
the Internal Revenue Service of the United States Depart-
ment of Treasury commenced investigating his United .-
States income tax liability for moneys earned under con-
_ tracts with the Dominican Republic between 1951 and 1956;
-that such investigations plus additional ones resulted in
his notification in 1958 of a jeopardy assessment for income
taxes in the amount of $2,350,000.00 and that suit was filed
for the recovery of such amount in the United States’
_ District Court for Puerto Rico on March 3, 1958; that. at
approximately the same time the then current Government
in the Dominican Republic was subjected to severe criticism
in the United States and abroad due to internal conditions
and,.consequently, said Government pressured Mr. Benitez
_ Rexach to secret the amounts returned to that Government ©
- for tlie privilege of doing business notwithstanding the tax
. recovery ‘action commenced against him; that at about the
same time the Dominican Government allegedly suggested
that in order to prevent a worsening of external inter-
national relations growing out of the practices of that
Government it would be‘ wi8e if appellant ceased to be
a citizen of the United States; that in connection with the
United States tax suit then current Mr. Benitez Rexach
was tentatively advised by his Jnited States attorneys that
he should determine from the Department of State whether |
he had expatriated himself in 1952 or 1953 by accepting
the office of Commercial Adviser to the Dominican Embassy
at Paris, France; that subsequently in 1958 both his attor-
neys and the Secretary of State concluded that he had
28
not expatriated. himself by accepting the aforementioned
_ position and that such determinations were conveyed to
the then Dominican Government; that upon threats of
financial and personal injury by the Dominican Government
appellant renounced his United States citizenship on July.
14, 1958; that on July 26, 1958, a decree conferring Domini-
can citizenship on appellant as of a time previous was
issued by the then Government; and that, as a result of.
his action on July 14, 1958, the Department of State ap-
proved a certificate of loss of nationality on July-18, 1958.
_The essence of Mr. Benitez Rexach’s defense to his overt
act of renouncing United States citizenship on July 18,
1958, is ‘that he acted involuntarily and under coercion.
In his own words:
| **On July 14, 1958, I made that adil: renounc-
ing: my United States citizenship without prejudice to
the claim of loss in 1952 or 1953, and I so reported
to the Dictator. I did not want to make this renunci-
ation and I did not make it voluntarily. I did it
because I knew that if I did not do so I would lose
my business and.properties in the Dominican Republic,
that there was a probability that I might lost my liberty
and always. the possibility that I might suffer bodily
harm. Fatal accidents frequently happened in the
Dominican Republic to persons regarded as inimical
to the interests of the Dictator.’’
In connection with this allegation, appellant has intro-—
duced a wealth of independent evidence corroborating and
substantiating the reality and well-foundedness of his fear
not only of business ruin but actual physical harm, Also,
public information available to the Board of Review con-
cerning the practices of the then Dominican Government
are noted as further corroborating Mr. Benitez Rexach’s
fears.
There is under current. statutes and interpretations no
TREAT RLS DO Le PO ee
eee
2 REIGNS IPED A MERE LO IPT TO NEDA NTT NT i sili
eS
NES RON TINE MINN g PRL PERT TR OD A i hati heck ha that Gehl PPAR OE Ie IRL, aver. 2 "ERT: cen
29
question “but what Congress by enacting the so-called
expatriation laws of the United States intended ‘to recog-
nize the right ofa United States citizen to. surrender his
citizenship by enumerating certain acts which evidenced an
intent to renounce such citizenship. Perkins v. Elg, 307 U.S.
325; Mackenzie v. Hare, 239 U.S. 299; Ex Parte Griffin, 237
F. 445; Citizenship of Mrs. Berryman, 30 Ops. Atty. Gen.
412. However, in view of the fact that American citizenship
is perhaps the most precious right known -to man today it
should not be lightly taken away. Acheson v. Paenza, 202
F.2d 453, 456. Consequently, it has been consistently held
that where the fact that an individual was at one time
a United States ‘citizen has been established and the Gov-
ernment recognizes such status by claiming it has been
forfeited under law, it devolves upon the party asserting
expatriation to prove the validity thereof in a manner that
does not leave the issue in doubt. Delmore v. Brownell, 236
F.2d 598; Mah Toi v. Brownell, 219 F.2d 642. Also see
Gonzalez v. Landon, 350 U.S. 920.
In order, therefore, that Mr. Benitez Resach may be held
to have expatriated himself by formally renouncing his
United States citizenship, it is necessary that the Govern-
ment disprove by a preponderance of the: evidence appel- —
lant’s allegation, if substantiated, that he acted involun-
tarily and under extrinsic coércion at the time he executed
the pertinent document before a consular representative of
the United States. —~
It is a fundamental rule of all fields of human delleoves,
especially those relating to human conduct under law, that
conspicuously performed acts are presumed voluntary.
Wigmore, Evidence (3rd-Ed.), Vol. 3, sec. 860; F.R.C.P.
sec. 8(c). Another way of expressing the same axiom is
that a voluntary act is one proceeding from one’s own
choice or full consent unimpelled by arfother’s influence.
Nakashima v. Acheson, 98 F. Supp. 11.
30
- It is similarly well established that today a United States
citizen cannot be divested of such citizenship without his:
consent and the latter may result only from his voluntary
conduct. Nishikawa v. Dulles; 356 U.S. 129; Mackenzie v.
Hare, 239 U.S. 299; United States v. Wong Kim Ark, 169
U.S. 649; Osborn v. United. States, 9 Wheat. 38. To
' determine whether~any act of alleged expatriation was
performed voluntarily or involuntarily, it is necessary to ©
examine all relevant facts and circumstances which may
have caused the alleged actor to have departed from the
- exercise of free choice and respond to compulsion by others.
‘Nakashima v. Acheson, supra.
The Board has carefully examined all facets of this case
as. well as the evidence going to the circumstances under.
which. the appellant purportedly renounced his United
States citizenship. Mr. Benitez Rexach has. alleged and
submitted corroborating evidence to the effect that his
formal renunciation of United States citizenship was an
act compelled by not only fear of financial loss or ruin,
but also that he was, in fact, in fear of his personal safety
if he refused to obey the alleged commands of the Domini-
- can Government to divest himself of his American status.
While there may exist certain aspects of the record which
are not totally clear or consistent, the Board is bound by
judicial precedent to resolve any and all doubts arising
therefrom in the favor of Mr. Benitez Rexach. United States:
v. Minker, 350 U.S. 179; Baumgartner v. United States, 322
U.S. 665; Schneiderman v. United. States, 320 U.S. 118;
| Stipa v. Dulles, 233 F.2d 551; Alata v. Dulles, 221 F.2d 52;
Fletes-Wora v. Rogers, 160 F. Supp. 215; Yee Yee v. Dulles,
136 F. Supp. 199; Gay v. Brownell, 120 F. Supp. 319.
Evidence rebutting or tending to affirm the contrary of
Mr, Benitez Rexach’s position on appeal is not particularly
_ Impressive nor present in any magnitude. What little there
is appears to lead to a conclusion that it was the Depart-
ment’s previous position that appellant acted totally out
of self-interest and freely in renouncing his citizenship.
~ Comparing such evidence with that submitted in opposition,
the Board is of the opinion that appellant’s evidence meets .
the requirements of Section 349(c) of the Immigration and
Nationality Act of 1952, as amended, and thereby success-
fully rebuts any presumption or allegation of the fact of
voluntariness ‘by a preponderance. While not directly in
point, the Board also considers pertinent to this consider-
ation the comments dicta of the United States Court of
Appeals for the 9th Circuit in Acheson v. Nurakami (176
F.2d 953). Therein the court in discussing the affect of —
a formal renunciation of United States citizenship under |
Section 401(i) of the Nationality Act of 1940, as amended,
stated and held that such a renunciation was insufficient
_ if made under evidence establishing fear and duress. |
Accordingly, the Department’s- previous determination
that Mr. Felix Benitez Rexach expatriated himself under
* Section 349 (a) (6) of the Immigration and Nationality Act
of 1952, as amended, is reversed.
*(s) James EK. Cotter |
James E. Correr, Chairman
(s) Lynn N. Peterson, JR.
Lynn N. Peterson, Jr.
(s) Donatp K. Duvatt .
DonaLp K. Duvaun
130—Benirez Rexacu, Fei
32
Appendix D
‘Sze. 871. Tax on Nonresipent AuieN INDIVIDUALS
(a) No Unrrep States Business anp Gross INcoME oF
Nor More Tuan $15,400.—
(1) Imposition or Tax. — Except as otherwise pro-
vided in subsection (b) there is hereby imposed for
each taxable year, in lieu of the tax imposed by sec-
tion 1, on the amount received, by every nonresident
alien individual not engaged in trade or business
‘within the United States, from sources within the .
United States, as interest (except interest on deposits
with persons carrying on the banking bysiness), divi-
dends, rents, salaries, wages, penis annuities,
compensation, remunerations, emoluments, or other
fixed or determinable annual or periodical gains,
profits, and income (including amounts described in
section 402(a) (2), section 403(a) (2), section 631(b)
and (c), and section 1235, which are considered to be
gains from the sale or exchange. of capital assets),
_ a tax of 30 percent of such amount.
(2) Caprrau Gains or Auiens TemporaRILy Present
In THE Unrrep States. — In the case of a nonresident
alien individual not engaged in trade or business in
‘the United States, there is hereby imposed for each
taxable year, in addition to the tax imposed by para-
' graph (1) —
; (A) if he is , present in the United States for
a period or periods aggregating less than 90 days
durmg such taxable year —a tax of 30 percent
of the amount by. which his gains, derived from
sources within the United States, from sales or
exchanges of capital assets effected during his
presence in the United States exceed his losses,
¢
ey nee ee ? “y = i)
an ati _sdancnsetaall SONS IIL FLT OI EN OE LONE
33
allocable to sources within the United States,
from such sales or exchanges effected during such
presence; or a |
(B) - if he is present in the United States for
a period or periods aggregating 90 days or more
during such taxable year from sources within the
Wnited States, from sales or exchanges or capital
assets effected at any time during such year ex-
ceed his losses, allocable to sources within the
. United States, from such sales or exchanges
effected at any time during Such year.
For purposes of this paragraph, gains and losses shall
be taken. into account only if, and to the extent that,
they would be recognized and taken into account if
such individual were engaged in trade or business
in the United States, except that such gains and losses
shall be computed without regard to section 1202
(relating to deduction for capital gains) and such
losses shall be determined without the benefits of the
capital loss carryover provided in section 1212..
(b) No Unrrep States Busivess anp Gross IncomME oF
More Tuan $15,400.— A nonresident alien individual not
engaged in trade or business within the United States shall
be taxable without regard to subsection (a) if during the
taxable year the sum of the aggregate amount received
from the sources specified in subsection (a)(1), plus the
amount by which gains from sales or exchanges of capital
assets exceed losses from such sales or ‘exchanges (deter-
mined in accordance with subsection (a) (2) is more than
$15,400, except that —
(1) the gross income shall include only income
from the sources specified in subsection (a) (1) plus
any gain (to the extent provided in subchapter P;
sec, 1201 and following, relating to capital gains and
corres
La EEPROM OS, sisi tee fate baal
34
losses) from a sale or exchange of a capital asset
if such gain would be taken into account were the
tax being determined under subsection (a) (2);
(2) the deductions (other than the deduction for
charitable contributions and gifts provided in section
973(c) shall be allowed only if and to the extent that
they are properly allocable to the gross income from
tHe sources specified in subsection (a), except that _
any loss from the sale or exchange of a capital asset —
shall be allowed (to the extent provided in subchapter
P without the benefit of the capital loss carryover
provided in section 1212) if such loss would be taken ~
into account were the tax-being determined under sub-
' section (a) (2). If (without regard to this sentence)
the amount of the taxes imposed in the case of such
an individual under section 1 or under section 1201 (b),
’ minus the sum of the credits under sections 34 and 35,
is an amount which is less than 30 percent of the
sum of —
(A) the aggregate amount received — the °
sources specified in subsection (a) (1), plus
(B) the amount, determined under section (a)
(2), by which gains from sale or exchanges of
capital. assets exceed losses from such sales or
exchanges.
then this subsection shall not apply and subsection (a) —
shall apply. For purposés of this subsection, the term
‘‘aggregate amount received from the sources specified
in subsection (a) (1)’’ shall be applied without any ©
exclusion under section 116. ,
(¢c) Unrrep States Bustness. — A nonresident alien
individual engaged in trade or business within the United
_ States shall be taxable without regard to subsection (a)-
For purposes of part I, this section, sections 881 and 882,
and chapter 3, the term ‘‘engaged in trade or business
35 te
within the United States’? includes the performance of
‘personal services within the United States at any. time
within the taxable year, but does not include the perform-
ance of personal services —
(1) for a nonresident alien individual, foreign,
partnership, or foreign corporation, not engaged: in
trade or business within the United States, or
(2) for. an office or place of business maintained
by a domestic corporation in a foreign country or in -
a possession of the United States,
by a nonresident alien individual temporarily present in
the United States for a period or periods not exceeding a
total of 90 days during the taxable year and whose compen-
sation for such services does not exceed in the aggregate
$3,000. Such terms do not include the effecting, through
a resident broker,. commission agent, or custodian, of
transactions in the United States -in stocks or securities,
or in. commodities (if of a kind customarily dealt in on
an organized commodity exchange, if the transaction is of
the kind customarily consummated at such place, and if ,
the alien, partnership, or corporation has no office or place
of business in the United States at any time during the
taxable year through which or by the direction of which
such transactions in commodities are effected).
(d) ~Parqicrpants 1N Certain, ExcHaNnce oR TRAINING
Proerams. — For purposes of this section, a nonresident
alien individual who (without regard to this subsection)
is not engaged in trade or business within the United
States and who is temporarily present within the United
- States as a nonimmigrant under subparagraph (F) or (J)
_of section 101 (a) (15) of the Immigration and Nationality
Act, as amended, shall be treated as a nonresident alien
individual engaged in trade or business within the United
States.
36
(e) Cross Rererences. —
(1) For doubling of tax on citizens of certain for-
eign countries, see section 891:
(2) For tax treatment of certain amounts dis-
tributed. by the United States to nonresident alien
individuals, ‘see section 402 (a) (4).
Aug. 16, 1954, c. 786, 68A Stat. 278; Sept. 2, 1958, Pub.L.
85-866, Title I, §§ 40(a), 72 Stat. 1638, 1639; Apr. 22, 1960,
Pub.L. 86-437, § 2 (b), 74 Stat. 79; Sept. 21, 1961, Pub.L.
87-256, § 110(b), 75 Stat. 535. |
‘““§ 1481. Loss or NATIONALITY BY Native-Born or Natur-
ALIZED CITIZEN ;. VOLUNTARY Action
(a) From.and afterthe effective date of this daaien -:
person who is a national of the United States whether by
birth or naturalization, shall lose his nationality by—
(1) obtaining naturalization in a foreign state upon his
own application, upon an application filed in his
behalf by ‘a parent, guardian, or duly authorized
agent, or through the naturalization of a parent
having legal custody of such person: Provided, That
“ nationality shall not be lost by any person under this .
section as the result of the naturalization of a parent ~
or parents while such person is under the age of
twenty-one years, or as the result of a naturalization .
obtained on behalf of a person under twenty-one
years of age by a parent, guardian, or duly author-.
izé¢d agent, unless.such person shall fail to enter the
United States to establish a permanent residence
prior to his twenty-fifth birthday: And provided ~
further, That a person who shall have lost nationality
prior to January 1, 1948, through the naturalization
in a foreign state of a parent or parents, may, within .
. one year from the effective date of this chapter, apply
for a visa and for admission to the ‘United States
a ao pte een eis ene tee
(2)
(3)
37
as a nonquota, immigrant under the provisions of
section 1101(a) (27) (E) of this title; or -
taking an oath or making an affirmation or other
formal declaration of allegiarice to a foreign state
or a political subdivision thereof; or
entering, or serving in, the armed forces of a foreign
state unless, prior to such entry or service, such
entry or service is specifically authorized in writing
by the Secretary of State and the Secretary of De-
fense: Provided, That the entry into such service
a person prior to the attainment of his eighteenth
_ . bitthday shall.serve to expatriate such person only
if there exists an option to secure a release from
such service and such person fails to exercise such
~ option at the attainment of his ‘eighteenth birthday ;
| (4)
-- thereof, if he has or acquires the nationality of such. ~
(6)
(7)
or
(A) accepting, serving in, or performing the duties
of any. office, post, or employment under the govern-
ment f a foreign state or a political subdivision
foreign state; or (B) accepting, serving in, or per-
forming the duties of any office, post, or employment
under,the government of a foreign state or a political
subdivision thereof, for which office, post, or employ-
ment an oath, affirmation, or declaration of alle-
giance is required; or
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
making a formal renunciation of nationality before
a diplomatic or consular officer of the United States .
in a foreign state, in such form as may ” Prescribed
by the Secretary of State; or |
making in the United States a formal written re- |
nunciation of nationality in such form as’ may be
38
prescribed by, and before such officer as may be
‘designated by, the Attorney General, whenever the
United States shall'be in a state.of war and the At-
torney General shall approve such renunciation as |
not contrary to the interests of national defense ;
or
(8) deserting the military, air, or naval forces of the
United States in time of war, if and when he is
convicted thereof by court martial and as\the result
of such conviction is dismissed or dishonorably dis-
charged. from the service of such military, air, or
' naval forces; Provided, That notwithstanding loss
_ of nationality or citizenship under the terms of this
chapter .or previous laws by reason of desertion
committed in time of war, restoration to active
duty with such military, air or naval forces in time~
of war or the reenlistment or induction of such a
person in time of war with permis 1 oe of competent
military, air; or naval authority ‘shall be deemed
to have the immediate effect of restoring such” na*y
tionality or citizenship heretofore or hereafter so’
_ lost; or ©
(9) committing any act of treason against, or attempt-
ing by force to overthrow, or bearing arms against, —
the United States, violating ‘or conspiring to violate
any of the provisions of section 2383 of Title 18, or -
willfully performing any act in violation of section
2385 of Title 18, or violating section 2384 of Title 18
by engaging in a conspiracy to overthrow, put down, -
- or to destroy by force the Government of the United
States, or to levy war against them, if and when he .
is convicted thereof by a court martial or by a | |
court of competent jurisdiction; or zz
(10) departing from or remaining outside of the juris-
diction of the United States in time of war or dur-
. » ' "e .
est age Agee | $0 Asay VLRO CP ONAN RE AEE RS OY TNS LI RY PN MI UM RIL BLN LIL POLIT Tt
39
ing a period declared by the President to be a period
* of national emergency for the purpose of evading
or avoiding training and service in the military, air,
or naval forces of the United States. For the pur-
poses of this paragraph failure to comply with any
provision of any compulsory service laws of the
United States shall raise ‘the.presumption that the
departure from or absence from the United States
. was for the purpose of evading or avoiding train-
ing and service in the military, air, or naval forces
of the United States. 3
(b) Any person who commits or performs any act spe-
‘cified in subsection (a) of this section shall be conclu-
sively presumed to have done so voluntarily and without
having been subjected fo duress of any kind, if such per-
son at the time of the act was a national of the state in
which the act was performed and had been physically pre-
sent in such state for a period or periods totaling ten
years or more immediately prior to such act.
(c) Whenever the loss‘of United States nationality is
put in issue in any action or proceeding commenced on
or after September 26, 1961 under, or by virtue of, the
provisions of. this or any *other Act, the burden shall
be upon the person or party claiming that such loss oc-
curred, to establish such claim by a preponderance of the
‘evidence. Except as otherwise provided in subsection (b)
of this section, any person who commits or performs, or
who has committed or performed, any act of expatria-
tion under the provisions of this chapter or any. other Act
shall’ be presumed to have done so voluntarily, but such
presumption may be rebutted upon a showing, by a prepon-
derance’of the evidence, that the act or acts. committed
or performed were not done voluntarily.
- (June 27, 1952, c. 477, Title ITI, ch. 3, § 349, 66 Stat. 267,
as amended Sept. 3; 1954, c. 1256, § 2, 68 Stat. 1146; Sept.
26, 1961, Pub. L. 87-302, § 19, 75 Stat. 656.)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.