Petition for Writ of Certiorari — District of Columbia v. Murphy

rHE SUPREME COURT OF THE UNITED STATES

QmeeroReR Pree, 1O40

No ) amertae

DISTRICT OF COLUATBEA

Pit froner

PAUL M. DeHART

Rs sponde nf

PETITION FOR A WRIT © CERTIORARI TO THE

i NITED STATES COURT OF APPEALS FOR THE

DISTRICE OF COLUMBIA AND BRIEF IN

SUPPORT THEREOF

RicHMOND B. WKeEECH,

Corporation Counsel, Do

VERNON ;. West

I) ser part As fern? Cusrprratrers: Counsel. D.C

(GLENN SIMAMION

Assistant Corporation Course Ly 6G

{frorneus for the Ps fifioner

District Bialding

INDEX

SUBJECT INDEX

Petition: PAGE

Statement of the Matter Involved BE PRE LR ee ; |

Jurisdiction ; at oa : awe 2

Questions Presented , 2

Reasons Relied on for the Allowance of the Writ 3

Brief in Suppert of Petition:

Opinions Below 5

Jurisdiction : 5

Statement of the Case 5

Specification of Errers 7

Statutes Involved Ss

Summary of Argument : S

Argument ae a 3 : : 9

I. Respondent was domiciled in the District of Columbia

for purposes of taxation on December 31, 1939 4

II. The domwile of an employee of the Federal Government

for purposes of taxation should be determined under

the same general rules applicable to persons in private

employment 14

Ill. A persou is presumed to be domiciled at the place where

he lives 17

Conclusion 1s

CITATIONS

Cases:

Anderson v¥. Watt, 1388 U.S. 694 18

Bradstreet v. Bradstreet, 1 D.C. Rep. (7 Macke y) 229 10, 12.18

Brown v. United States, 5 C. Cls. 571. 579 15

Dickinson v. Inkabitants of Brookline, 181 Mass. 195. 63 N. FE. 331 12,13

Dodd y. Dedd, (Tex. Civ. App.), 15 8. W. (2d) 686 _- 18

Ennis v. Smith, 14 How. 400, 423 is

Felker v. Henderson, 102 A. (N. H.) 623. L. R. A. 1918E 512 11

Gaddie v. Mann, 147 F. 955 2 oa , 12

Gallagher v. Gellagher (Tex. Civ. App.), 214 S. W. 516 18

Gilbert v. David, 235 U.S. 561. 10

Harrison ¥. Harrison, 117 Md. 607, 84 A. 57 1S

In re Sedgwick, 223 F. 655 _- 12

In re Trowbridge’s Estate, 266 N. Y. 283. 194 N. FE. 756 12

Klutts v. Jones, 21 N. Mex. 720, 158 P. 490. L. R.A I917A 29] ld

INDEX CONTINUED

Mitchell v. United States, 21 Wail. 350, 22 L Ed 5S4

Newman v. United States Ez Rei. Frizzell, 43 App. D. C. 53

Ringgold v. Barley, 5 Md. 136, 59 Am. Dee. 107 —. .

Rosenberg v. Comm. o} Internal Revenue, 59 App. D. C. 178, 37

F. (2d) 808

Shaeffer v. Gilbert. 73 Md. 66, 20 A 134,

Si; parks v Sparks, 1i4 Tenn. 666, 88S. W. 173, 174 7

Sweeney y. Distnet of Columbia, _.. App. D.C. ___, 113 F. (2d)

25, cert. den. 310 U. 8. a Si ene a ‘ i

Texas ¥. Florida, 306 U. - acd eat Sao da haesedesia ec bieaich

Wagner v. Seurlock, . ng 284, 170 ry 539, 5AS

Other Authorities:

19 C. J. 436, 437 ee ar a a ae

440 bvennaat penne eae

Dicey, Law of Domicile, Page 9 .............- .----....-.----«----

Goodrich on Conflict of Laws, Section 25 Ses he ae

Jacobs, Law of Domicile, Section 70, Page 113 _..-.-.------~-.---

Section 7a. Fase 100 .........-.... <..

Section 148, Pages 213-215 _...__--..---

Section 144, Pages 208, 209 _._... -..--

Kennan on Residence and Domicile, Section 16, Page 37

Section 127, Page 257 _.__.

Section 78, Pages 158-161 _-

Section 61, Page 135

Section 62, Pages 136-137

S.vtion 172, Page 327 -

OR a RCRA we me nae WEE ee AL SEPT ACTRESS SPE ONL

RUMI”. escshs sinc tusnchtes sina eb-naeubtatlasasce teint anaies

558 i

Resiatement, Conflict of Laws, Chapter 2, Section 12, Page 24

Chapter 2, Section 19, Page 38

Story Conflict of Laws, Section 46

Scrtion 46, Pag: 50

Wharton, Conflict of Laws, Section 63 __

Statutes Involved:

District of Columbia Income Tax Act (Title II, District of Colum-

bia Revenue Act of 1939), Section 2 (a) (Sec. 980a., Title 20,

D. C. Code, 1929. Supplement V) senitinbintlolans itis

District of Columbia Income Tax Act (Title Il, District of Co-

lumbia Revenue Act of 1939), Section 34 (Sec. 980gg., Title

20, D. C. Code, 1929, Supplement V) - pallens piebdtadaien

Judicial Code, as amended by the Act of Pobruary 13, 1925, Sec-

tion 240 (a) : ane

10. 12

10, Is

11

10. 11

15

11,15

9, 11,18

9, 11,12

10

10

9,18

10.11

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1940

No.

DISTRICT OF COLUMBIA,

Petitioner,

vs.

PAUL M. DeHART,

Respondent.

PETITION FOR A WRIT OF CERTIORARI AND BRIEF

IN SUPPORT THEREOF

PETITION

To the Honorable, the Chief Justice of the United States,

and the Associate Justices of the Supreme Court of the United

States:

Your petitioner, the District of Columbia, respectfully shows

and represents unto Your Honors that:

STATEMENT OF MATTER INVOLVED

The District of Columbia Income Tax Act imposes a tax

upon the income of individuals domiciled in the District of

Columbia on the last day of the taxable year. The respondent

paid to the District of Columbia an ineeme tax for the cal-

]

2

endar vear 1939. At the time of payment of such tax re-

spondent filed with the Assessor, D. C., a ciaim for refund of

the amount paid, in which claim it was alleged that the re-

spondent was domiciled in Harrisburg, Pennsylvania, on De-

eember 31, 1939. On July 22, 1940, the Assessor disallowed

the claim and sent the respondent, by registered mail, a notice

of such disallowance. On August 28, 1940, the respondent

appealed from the action of the Assessor to the Board of Tax

Appeals for the District of Columbia (R. 1-2). On October

9. 1940, the Board of Tax Appeals held that the respondent

was not domiciled in the District on the taxable date involved.

that the tax was erroneously collected by the District, and the

respondent was entitled to a refund thereof (R. 12).

The District petitioned the United States Court of Appeals

for the District of Columbia for a review of the decision of

the Board of Tax Appeals. On March 24, 1941, the Court of

Appeals affirmed the decision of the Board of Tax Appeals

(R. 20-24).

JURISDICTION

The judgment of the United States Court of Appeals for

the District of Columbia was entered on March 24, 1941. The

jurisdiction of this Court to issue the writ applied for is in-

voked under Section 240 (a) of the Judicial Code, ss amended

by the Act of February 13, 1925.

QUESTIONS PRESENTED

1. Whether the domicile of a federal employee is to be de-

termined upon different principles of law than thase applica-

ble to the determination of domicile of an individual engaged

in private employment;

2. Whether there is a presumption requiring strong evidence

to overcome it that ai: employee of the Federal Government

residing in the District of Columbia is domiciled in the state

where he formerly resided;

3

3. Whether the domicile of a federal employee residing in

the District of Columbia is to be determined upon different

principles of law then those used in determining the domicile

of such an employee residing in one of the states;

4. Whether respondent was domiciled in the District of

Columbia for purposes of taxation on December 31, 1939.

}

REASONS RELIED ON FOR THE ALLOWANCE OF

THE WRIT

1. The United States Court of Appeals for the District of

Columbia in this case has decided a question of general im-

portance which has not been, but should be, settled by this

Court.

(a) The question is of great importance to the District of

Columbia for the reason that the District of Columbia Income

Tax Act levies a tax upon the income of individuals “domi-

ciled” in the District, and, because the District of Columbia

Estate Tax Law imposes a tax upon the transfer of the estate

of every individual who shall die a resident of the District.

(b) The question is of great importance to all employees

of the Federal Government residing in the District and to

other government employees residing in a jurisdiction other

than the state or territory of original domicile. In such cases.

the importance of the question is not limited to liability for

payinent of taxes but extends to matters relating to the ad-

ministration of estates, the granting of divorces, and the like.

(c) The question is of great importance to persons who

have come from the varicus states and are residing in the Dis-

trict and engaged in private employment.

2. The Court of Appeals has not given proper effect to ap-

pheable decisions of this Court.

WHEREFORE, Your petitioner prays the allowance of a Writ

of Certiorari to the United States Court of Appeals for the

Distriet of Columbia in this cause, and entitled District of Co-

lumbia, Petitioner v. Paul M. DeHart, Respondent, No. 7779,

4

that said cause may he reviewed and determined by th

Court, and that the judginent of the said Court of Appea

nay be reversed and set aside; and for such further relic

and remedy in the premises as this Court may deem meet an

proper.

DISTRICT OF COLUMBIA,

Petitioner.

By:

RicHMoNpD B. KEECH,

Corporation Counsel, D. C.,

VERNON E. West,

Principal Assistant Corporation Counsel, B.C

GLENN SIMMON, |

Assistant Corporation Counsel, D. C.,

Attorneys for the Petitioner,

District Building.

ny

Pinas &

BRIEF IN SUPPORT OF PETITION FOR CERTIORARI

OPINIONS BELOW

The opinion of the Board of Tax Appeals for the District

of Columbia (R. 4-12) is not reported. The opinion of the

United States Court of Appeals fer the Distriet of Columbia

(R. 20-24) is not yet reported.

JURISDICTION

The grounds upon which the jurisdiction of this Court is

invoked are stated in the petition.

STATEMENT OF THE CASE

Pursuant to the provisions of the Distriet of Columbia In-

come Tax Aei imposing taxes upon the income of individuals

domiciled in the Distriet on the last day of the taxable year,

respondent reported his income for the eslendar year 1939

end paid the tax computed thereon. Simultaneously with

‘uch payment, the respondent filed a elaim for refund of the

aniount paid, alleging that he was not domiciled in the District

on the taxable date. On July 22. 1940, the Assessor, D. C.,

notined respondent of the disallowance of his ¢laim. On

August 28, 1940, the respondent. acting in accordance with

the provisions of Seetion 34 of the Distriet of Columbia In-

come Pax Aet (Sec. 98Ogg., Title 20. D. C. Code, 1929, Sup-

plement V), appealed from the action of the Assessor to the

Board of Tax Appeals for the Distriet of Columbia.

In 1914 the respondent took a year’s leave of absence from

‘is work in a railroad otfice and accepted a clerical position in

5

Sy)

the Patent Office in Washington under Civil Service. Re-

spondent did not return to the railroad office at the end of the

vear but continued in the Civil Service up to and ineluding

ihe present time He is now chief clerk of the Personnel and

Organization Pivision of the National Guard Bureau, War

Department, with offices in Washington (R. 4. 5).

When respondent eame to Washington in 1914 he was a

single person. In 1°" he was married to a native of Wash-

ington. No children resulted from such union. Shortly after

the marriage, the couple purchased as a home premises 1425

Massachusetts Avenue, 8S. E.. in Washington, wherein they

both resided as long as the wife lived and in which the re-

spondent has sinee resided. Wher first purchased, the home

was encumbered by a mortgage which the respondent sub-

sequently paid off CR. 5).

Respondent's wife died in 1935. While she was living, the

respondent purchased an unencumbered lot at Selby-on-the-

Bay. in nearby Maryland. and an unencumbered low in Hill-

crest. a subdivision in the Distriet of Columbia. Respondent

wid his wife had an agreement that a new hone would be

built on the Hillerest lot in southeast Washington and a sum-

ier residence would be built at Selby-on-the-Bay, and, after

his retirement from Government service, six months of the

year Wouk! be spent at their home in the District and ~=ix

months at their summer home on the Bay (R. 5, 6).

Respondent has checking or savings accounts in three Dis-

trict banking stitutions and owns first trust notes on prop-

erty loeated in Marvland and Virginia (R. 7).

Respondent has been an active member of the Keller Me-

morial Lutheran Chureh of Washington, D. C.. sinee 1915.

He is also a member of the Washingten units of the Tall

Cedars of Lebanon and the Mystie Shrine, beth Masonic

bodies, as well’ as the. Motor Club of Washington. Prior to

his wife’s death, the respondent was a member of the Pennsyv!:

Vania Society) of Washington. During the calendar year 193!

7

'e made substantial contiibutions to religious and charitable

institutions in the District (R. 7).

fespondent was born in Pennsylvania wiere he resided

until he came to the Distriet in 1914. Respondent's parents

reside 9¢ 1933 North Fourth Street, Harrisburg, Pennsylvania,

at Which premises he retains a room and elaims “legal resi-

dence’. Respondent pays no rent for such room but he dees

tnake monetary gifts to lis parents from time to time (R. 7.8).

tespondent has paid poll taxes in Pennsylvania and voted

regalarly there since he became of age. While he resided in

Harrisburg, he was a member of a church and of Masonic

loiges there. While on visits to Harrisburg, he attends and

makes contributions to the Pine Street Presbyterian Church

(R.&8).

The Board of fax Appeals found as a faet that the respon-

dent, at the end of one year after he removed to the District in

414. had an intention to remain and make his home in the

District of Columbia for an indefinite period of time, and that

such intention remained with him at least until the death of

his wife in 1935 (R.9). The Board, however, held that under

the decision of the Court of Appeals in Sweeney v. District of

Columbia *, the respondent was not domiciled in the District

of Columbia on Deeember 31, 1939 (R. 9-12).

The Court of Appeats sustained the Board’s finding that the

respondent had an intention to remain and make his home in

the Distriet and affirmed the Board’s decision that he was,

uevertheless, domiciled without the Distriet.

SPECIFICATION OF ERRORS

The United States Court of Appeals for the District of Co-

lumbia erred:

I. In holding that the respondent was not domiciled in the Dis-

trict of Columbia for purposes of taxation on December 31, 1939.

: App. D. C. , 113 F. (2d) 25. cert. den. 310 U.S. 631

8

II. In holding that the domicile of an individual employed

by the Government is to be determined upon different principles

of law than those applicable to the determination of the domicile

of an individual engaged in private employment.

III. In holding that there is a presumption, requiring strong

evidence to overcome it, that an individual who comes to the

District from one of the states and resides here for many years

while employed permanently or indefinitely by the United States

Government retains his domicile for all purposes in the state from

which he comes.

IV. In holding that an individual who has physically re

moved to the District and has an intention to remain and make

his home here indefinitcly nevertheless retains his domicile for

all purposes in the state where he formerly resided because of his

employment by the Federai Governmert.

STATUTES INVOLVED

Section 2 (a) of the District of Columbia Income Tax Act

(sec. 980a., Title 20, D. C. Code, 1929, Supplement V) pro-

vides as follows:

“TAX ON INDIVIDUALS.—There is hereby levied

for each taxable year upon the taxable income of every

individual domiciled in the Distriet of Columbia on the

last day of the taxable year a tax at the following rates:”

- * * *

SUMMARY OF ARGUMENT

Conjunction of physical presence and animus manendi in the

new location establishes a change of domicile.

There is no question concerning the respondent’s physical pres-

ence in the District of Columbia.

The question of intention to remain in the District is one of

pure fact. The Board of Tax Appeals found as a fact that

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9

the respondent, at the end of one year after he removed to the

District in 1914, had an intention to remain and make his

home in the District of Columbia for an indefinite period of

time. The Court of Appeals sustained the Board’s finding. Dom-

icile in the District follows as a matter of law.

The domicite of an e.:nployee of the Federal Government for

purposes of taxation should be determined under the same gen-

eral rules applicable to persons in private employment.

A person is presumed to be domiciled at the place where he

lives.

Even if the test laid down by the Court of Appeals in the

Sweeney case ° were applicable, the evidence clearly shows that

respondent liere was domiciled in the District of Columbia for

purposes of taxation on December 31, 1959.

ARGUMENT

I

Respondent was dorniciled in the District of Columbia for pur-

poses of taxation on December 31, 1939.

In 1914, the respondent came to reside in the District of

Columbia. Since thai time he has had no home or dwelling

place except the one which he has continuously maintained

in the District. When a person has one home and only one

home, his domicile is the place where his home is. Restate-

ment, Conflict of Laws, Chapter 2, Section 12, Page 24.

Domicile is defined in 9 R. C. L. 538 as follows:

“The term ‘domicile’ in its ordinary acceptation means

a place where a person lives or has his home. In a striet

legal sense that as properly the domicile of a person where

he has his true; fixed, permanent home and principal es-

tablishment, and to which place he has, whenever he is

App. D.C. , 113 F. (2d) 25, cert. den. 310 U.S. 631.

10

absent, the intention of returning. In a sense domicile

is synonymous with home, or residence, or ‘the house of

usual abode’.”’

See also:

Texas v. Fivorida, 306 U.S. 398;

Jacobs, Law of Domicile, Section 70, Page 113, and Section

72, Page 120; =

Kennan on Rex lence and Domicile, Section 16, Page 37:

Goodrich on Conflict of Laws, Section 25.

The Board of Tax Appeals found as a fact that the respon-

dent. at the end of one year after he removed to the District

in 1914, had an intention to remain and make his home in the

District of Columbia for an indefinite period of time (R. 9).

The Board's findings were accepted by the Court of Appeals

(R. 24) and domicile in the District of Columbia follows as

a inatter of law.

In Story, Conflict of Laws, Section 46, the rule is stated as

follows:

“Tf a person has actually removed to another place with

an intention of remaining there for an indefinite time.

and as a place of fixed present domicile, it is deemed to

be his place of domicile, notwithstanding he may entertain

a floating intention to return at some future period.”

The rule announced by Story seems to have been almost uni-

versally adopted.

Gilbert v. David, 235 U.S. 561;

Mitchell vy. United States, 21 Wall. 350, 22 L. Ed. 584:

Rosenberg v. Comm. of Internal Revenue, 59 App. D. C. 17s.

37 F. (2d) S8U8;

Newman vy. United States Ex Rel. Frizzeil, 48 App. D. ©

53;

Bradstreet. Bradstreet, 18 D. C. Rep. (7 Mackey) 229;

>

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SESS seek

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1]

Ringgold v. Barley, 5 Md. 186, 59 Am. Dee. 107;

Klutts v. Jones, 21 N. Mex. 720, 158 P. 490, L.R.A. 1917A

291:

Felker v. Henderson, 102 A, (N. H.) 623, L.R.A. 1918E 512;

Kennan on Residence and Domicile, Section 127, Page 257.

The intention, however, to return to the domicile of na-

tivity, or one acquired, must be fixed, absolute, and uncon-

ditional. A mere floating intention to return at some future

pericd or upon the happening of some uncertain event Is not

sufficient. The intent to return must not depend upyn in-

clination or be controlled by future events.

Sparks v. Sparks, 114 Tenn. 666, 88 S. W. 173, 174.

Story, Conflict of Laws, Section 46.

The Court of Appeals, in the Sweeney case, ‘apparently af-

firmed the rule that conjunction of physical presence and

animus manendi establishes a change of domicile to the new

iovation. However, in the instant case where there was both

physical presence and intention to remain in the District, the

Court of Appeals held the respondent to be domiciled in

Pennsylvania. The evidence clearly shows that at least until

the death of his wife in 1935, the respondent had an intention

to remain and make his home in the District until and after

his retirement from Government service. There is no proof

that sueh intention does not still remain with the respondent

except his declaration to the contrary male while he was tes-

tifying in his own behalf in this proceeding before the Board

ef Tax Avpeals. Such declarations are, at best, seli-serving,

and are entitled to little. if any, weight. Texas v. Florida,

supra; Rosenberg v. Comm. of Internal Revenue, supra; 19

C4. 440.9 R.CLL. 558. Even assuming that after the death of

his wife in 1935, respondent did change his intention to remain

in the District after his retirement, such change of intention

could not effect a change of domicile in the absence of physical

removal to Pennsylvania.

It seems evident that respondent did not intend to retau

his domicile in Pennsylvania. The intention required for the

acquisition of a domicile of choice is an intention to make a

home in facet, and not an intention to acquire a domicile. Re-

statement, Conflict of Laws, Chapter 2, Section 19, Page 3s.

See also: Mitche ll ¥. Unite d State 8, Supra, T¢ Sa86-%, Florida,

supra. The nature of the intention required for the acquisition

of a domicile of choice is clearly pointed out by Mr. Justice

Holmes in the ease of Dickinson v. Inhabitants of Brookline.

IS] Mass. 195, 63 NE. 331, as follows:

“Of course the arguinent for the plaintiff is that his

domicile is presumed to continue until it is proved to have

been changed, that it could be changed only by his intent

and overt act, and that he expressly denied the intent.

The ambiguity is in the last proposition. The plaintiff

did not deny that he intended to keep on living as he had

lived for the last few vears and if the jury saw fit to find,

as no doubt they did, that he did intend to do so, then he

did intend the facets necessary to constitute a change in

domicile, and what he did not intend was simply that

those facts should have their inevitable legal conse-

quence.”

See also: Jacobs, Law of Domicile, Section 148, Pages 213-

215.

Respondent also testified that he has paid poll taxes in Penn-

svilvania and voted regularly there since he became of age.

While exercise of the eleetive franchise is important to be eon-

sidered, as a general rule it is not conclusive, and when over-

balanced by other circumstances, the fact of voting may be of

slight importance, 19 C.J. 436, 437.

See also:

Graddie vy. Mann, 147 F. 955;

Bradstreet v. Bradstreet, supra;

In re Sedguick, 223 F. 655;

In re Trowbridge’s Estate, 266 N. Y. 283, 194 N. E. 756:

ae

13

Dickinson vy. Inhabitants of Brookline, supra;

Wagner v. Scurlock, 166 Md. 284, 170 A. 539, 542;

Kennan on Residence and Domicile, Section 78, Pages 158-

161;

Wharton, Conflict of Laws, Section 63.

In considering the questicn of the domicile of one who has

removed from one state to another, the fact that the right of

suffrage has been exercised in the former state is entitled to

much greater weight than when considering the domicile of

one who has removed from a state to the District of Columbia.

Ordinarily one wishes to take part in the political activities of

the state in which ke intends te live and therefore when one

continues to vote in the state of his former residence this may

create a presumption of a fixed intention to return to that

state. But the right of suffrage is denied residents of the Dis-

trict. It is but natural that one who removes from a state to

the District with the intention of remaining here permanently

should, nevertheless, endeavor to retain his right of suffrage as

long as possible. It may be that, under the law of Pennsylvan-

ia. a former resident of that state may continue to exercise a

right of suffrage there until he has actually voted elsewhere.

That cuestion, however, is not before this Court. But, in

any event, it is plain that the State of Pennsylvania eznnot ac-

cord a domicile in that State toa resident of the District of Co-

lumbia merely by permitting him to vote in its elections.

Unless the domicile of an individual employed by the Fed-

era] Governinent is to be determined upon principles of law

different from those used in determining the domicile of an

individual in private employment, it clearly appears that the

argument that respondent was domiciled in the District of

Columbia on the date in question is supperted by substantially

all authority, including opinions of this Court. The opinion of

the Court of Appeals, however, departs from the well-defined

principles for determining domicile in three respects: First,

by placing Government employees in a special class and hold-

ing that the domicile, for purposes of taxation. of an indi-

Ane

l4

vidual so employed is to be determined upon different prin-

ciples of law than those applicable to the determination of

the domicile of other individuals. Second, by holding that a

person who voluntarily comes to the Distriet and obtains em-

ployment here with the Federal Government is presumed to

be domiciled in the state from which he comes and that strong

evidence is required to overcome such presumption. Third.

by holding that a Government employee maintaining his only

home in the District and having an intention to remain and

make his home here indefinitely is, nevertheless, domiciled for

all purposes in the state where he formerly resided.

II

The domicile of an employee of the Federal Government for

purposes of taxation should be determined under the same general

rules applicable to persons in private employment.

The Court of Appeals has held that different rules are to be

used in determining the domicile, for purposes of taxation.

of an emplovee of the Federal Government than those used

in determining the domicile of an individual in private emplov-

ment. The Court has not only failed to recognize a dis-

tinction between civil and political status but has held that the

latter determines the former. In other words, the Court has

said that the personal rights of an individual in Government

employment, 1e.. the law whieh determines his majority or

tinority, his marriage, succession, testacy or intestacy, and the

like, depends not upon the place where he lives and has his

home but upon the place where he formerly resided and ac-

quired the right to vote. Whether an individual who has

abandoned his residence in a state and accepted Federal em-

ployinent and established residence in the District of Co-

lumbia may continue to retain a noliticai status in the state

where he formerly resided is a matter to be determined by the

laws of such state. The laws of most states allow persons in

Government service to continue to vote in the elections of.such

states. Since an individual has no political status in the Dis-

15

rict of Columbia it is proper and desirable that he be allowed

to retain his tizenship or political domicile in the state of

his former residence. There is, however, no corresponding

reason Why an individual residing permanently, or at least in-

definitely, in the Distnet of Columbia should have a civil

status or domicile for all purposes in a state where he may

never again reside, and it does not appear that the state laws

generally accord such a status or domicile to individuals who

have been absent therefrom for long periods in Government

service.’ And the fact that such individuals retain their polit-

wal status and continue to vote in their respective states of

former residence is not inconsistent with the fact that they ac-

quire a civil status in the District of Columbia where they live,

enjoy the benefits and protection of local government, by the

laws of which District their personal rights should be deter-

inined and in which place they are legally domiciled.*

3 In Sparks v. Sparks, 114 Tenn. 666, 88 8. W. 173, cne who took his family

‘o Washington and hved there 22 years was held to have lost his citizenship,

residence and domicile in Tennessee although he occasionally returned to that

state and had voted and paid taxes there and had repeatedly expressed his

miention of returning to that state in case he should jose his position.

4 There as a clear distinction between ciuzenship. on the one hand, and

residence or domicile on the other. Aennan on Residence and Domicile, Sec-

tion 62. Pages 136-137, citing among others the case of Brown v. United States,

5 C Cls 571, 579, wherein the Court stated: “We cannot accent the doc-

tnue that the matter of domieile affects the fact of citizenship nor that a

mere foreign residence, of itself, can work a forfeiture of political nghts.”

‘Both residence and domicile have to do with a certain set of relations be-

‘ween a person and a place, while citizenship is based upon one’s political

Satis which us quite a different thing.” Aecnnan on Residence and Domicile,

section 61, Page 135.

“Allegance and domicile are entirely distinct things. They may exist

apart; they may exist together; but the one does not necessarily involve the

other” Jacobs, Law of Domucile, Section 144, Pages 208, 209.

The distinetion is clearly drawn in Shaeffer v. Gilbert, 73 Md. 66, 20 A. 434.

Where it is said:

“But ee is, it seems to us, a broad distinction between domicile, in a

land technical sense, by which one’s civil status and the rights of na

ind property are determined, and residence required by the Constitution as

a qualific ation for the exerc'se of political rights. ‘Domicile’, in a legai sense,

has. as we all know, a fixed and definite meaning; and yet the word ‘domicile’

is nowhere to be found in the Constitution. * * * The framers of the Constitu-

‘ion were dealing with the question of residence for political purposes, which,

although analogous in many respects, is not to be understood in the same sense

as domicile in law, by which the rights of persons and property are governed.”

e2al

16

In imposing the income tax upon individuals domiciled in

the Distriet, Congress apparently recognized that domicile in

the District for purposes cf taxation is independent of the right

to vote In one of the states.®

The Court of Appeals’ ruling does not purport to have appli-

cation to all persons in the Distriet but is limited to employees

of the Federal Government. Apparently, the Court does not

intend that its ruling should have application to all employees

of the Federal Government, but should be limited to suen

employees residing in the District of Columbia. There would

appear to be no logical argument supporting a special rule re-

garding employees of the Federal Government which applied

to only a limited number of such individuals. Any special

5 Mr. Nichols, the chairman of the House conferees on the bill, was absent

from the conference and the Conference Report and explanation & the bill

was made by Mr Dirksen, a member of the Fiscal Affairs Subcommittee of

the House District Committee and one of the conferees. In the course of

such report to the members of the House of Representatives there occurred a

discussion of the meaning of the term “domiciled” as used in the bill, wherein

Mr. Dirksen stated his own views and those ef the conferees as follows (4

Cong Rec., July 12, 1939, 12528) :

Mr Dirksen: * * * T think one can have a taxable domicile in the Dis-

tret of Columbia and still preserve his voting mghts back home.

* * * * * °

Mr MeCormack: I think this is a point that should be cleared up. Sup-

pose a person comes from Boston, and the seme thing applies to any other

ety an the country or any other State like Massachusetts, and his yearly

enployment isan the Distriet of Columbia. He as living here all the vear.

but he registers for voting purposes in Massachusetis. He cannot vote here

and we all Know the reasons why. but he wants to exercise his right of suffrage

and if he registers in’ Massachusetts, does he still have to pay the income

tux here?

Mr. Dirksen: That precise question was raised in the course of the con-

ference

(Here the gave! fell)

Mr. Nichols: Mr. Speaker, I yield the gentleman 5 additional minutes

Mr Dirksen: IT will sav te the gentleman from Massachusetts that I

raised that precise question in the course of the conference. We had it up

at considerable Jength with all the tax advisers to this committee, as well as

the conference committee, and we were of the opimion you could be taxed

heee, and yet vou can vote back home because you have a taxable domicile

inthe Distmet. Tt does not interfere with your mght, if you pay your po!

tax in Massachusetts, to vote back there and still pay your income tax here

The situation the gentleman alludes to might very conceivably arise in con-

nection with the case of a family that has lived here for 20 or 30 vears

They continue to vote back there; but is there any reason why it should not

be held that they have a taxable domicile in the District of Columbia sin

this is the place where thev live?

1 TE Yi oe Cees

reg

Ra aa

AGES NR REE RA Se

17

rule for determining the domicile of Federal employees should

apply to all such employees alike. Certainly it is not rea-

sonable that the thousends of Federal employees residing in

nearby Virginia and Maryland must have their domiciles deter-

mined on a different basis than those Federal employees resid-

ing in the District.

There are more than 1,151.000 civil employees of the United

States, of which number approximately 159,000 are employed

in, the District. Many of those employed in the District reside

in nearby Maryland and Virginia. The rule laid down by the

Court of Appeals necessarily affects all Federal employees who

have removed from the jurisdiction of original domicile fer the

purpose of such employment, and the already perplexing prob-

lem of determining domicile is thereby further complicated for

a substantial number of these 1,151,000 Federal employees.

There is no rule of law which supports the view that domicile

or civil status of an individual employed by the United States

is to be determined by special rules not applicable to individ-

uals in private employment. The respondent here, like sub-

stantially all Government employees, wes under no more com-

pulsion to live in the District than an employee of a corpora-

tion or other employer. Such individuals are not under real

compulsion such as are soldiers, prisoners, minors and lunaties.

Respondent came to the District voluntarily to seek employ-

ment and has remained here through preference for more {Aan

26 years and intends to remain here and make the District

permanently his home. Although he may elect to retain his

citizenship and vote in the State of Pennsvlvania, he is, never-

theless, domiciled in the District for purposes of taxation.

Il

A person is presumed to be domiciled at the place where he kives.

Where a person lives is taken prima facie to be his domicile,

and the burden of disproving such domicile is on the person

who denies it.

18

Anderson v. Watt, 1388 U.S. 694;

Ennis vy. Smith, 14 How. 400, 423;

Newman v. United States ex rei. Frizzell, supra;

Bradstreet v. Brads.reet, supra;

Gallagher v. Gallagher (Tex. Civ. App.}, 2148. W. 516;

Dodd vy. Dodd (Tex. Civ. App.). 15 8. W. (24) 686;

Harrison v. Harrison, 117 Md. 607, 84 A. 57;

9 R.C. L. 541, 5357;

Restatement, Conflict of Laws, Chap. 2, See. 12, Page 24;

Story, Conflict of Laws, See. 46, Page 50;

Kennan on Residence and Domicile, Section 172, Page 327:

Dicey, Law of Domicile, Page 9.

In the case of Sweeney vy. District of Columbia, supra, the

Court of Appeals held that although there was a presumption

of continuity of state doemiciliation during Federal employ-

ment, such presumption could be overcome. In the instant

ease, the Board of Tax Appeals held that the respondent hai

an intention to remain and make kis home in the District. The

Court of Appeals sustained the Board's finding of intention to

remain, but, nevertheless, heid respondent to be domiciled

without the District. The effect of the Court’s ruling in the

case at bar is that the alleged presumption cannot be over-

come; in other woras, that the domicile of an*individual i

Government service in the District of Columbia is to be de-

termined not by the facts but soleiy by his statements as to the

place of his domicile.

CONCLUSION

It is therefore respectfully submitted that this case is one of

xeneral importance which should be decided by this Court an‘

that a Writ of Certiorari should be granted and this Court

should review the decision of the United States Court of Ap-

19

Se SS, Se. a a oo Se oe eS

pPredis 1U0f the 4b tC uldinvia alu finally reverse said Ut-

eision,

RicHMOND B. KeEEcH,

Corporation Counsel, D. C.3s

VERNON KE. West, .

Principal Assistant Corporation Counsel, D. C.,

((LENN SIMMON, =

Assistant Corporation Counsel, D. Coz

Attorneys for the Petitioner,

District Building.