# Petition for Writ of Certiorari — Rexach v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1539%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 393 U.S. 833 ## Text : Bp. . 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 \ \ ;