Petition for Writ of Certiorari — Dameron v. Brodhead

Supreme Court brief1953

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1 Sea ¢ CLAIBORNE DAMERON vs. ROY W. CASS

: It is to be observed that giving. to servicemen the same protection ,

respecting bersonal property taxes as is given in the case ef in-

come taxes in no” wise operates as an ere inption from taxation—

the protection hitherto- afforded servicemen in respect to income

taxes having the purpose’ of preventing’.their being subject to

.income taxes in mote than one state of the ‘Unfon’ during the

‘same period of time, - We belipve it is. significant that neither in

the act itself, nor in. the reports of the Congressional conynittees

leading up to the enactment of the amendment, is there. any

reference to granting exemption from. taxation. © Pea ea,

‘ ‘Phe Treasurer ofthe City and County of Denver does not claim —

that plaintiff, by virtue-of his sojourn in Colerado under military

orders, has lost.his domicile in Louisiana... There has beén no

claim that. he should pay ‘a Colorado income tax for which fesi-

dents of Colorado are liable.’ He is, in accordance with the fed-.

eral statute, still deemed to be a resident of Muisiana, As to his

intangible personal property, there is no contention that.its situs -

should be deemed to be other than that in the State of Louisiana.

But in respect to the personal tangible preperty of plainfiff, which

‘has had a phiysieal situs in Colorado during the whole of the tax--

able period as a result of which it appears it had no physical situs

in Louisiana and was not subject. to taxation in that ‘state, we

are of the gpinion that. the presumption accorded by the federal

‘Statute, that the situs was the State of Louisiana, has been effee-

ne tively rebutted by the record: and there being no evidence to.

— show that the domiciliary State of Louisiana has taxed’ the prop-

erty, Colorado, as the state of actual physical situs; is free toslevy-

and collect the tax for the period in guestion. It, js obvious that,

o Louisiana having collected >-tax on. the “property, Colorado is

the only other state that-can tax it, To deny Colorado this right -

* turns the. federal statute into an éxemption. :

24- The basie fact in-the instant ease is’ that multiple taxa-

y__. tion has not been shown to exist; thatthe only State in

., which taxation: has oceurred for the calendar year 1948 on the

~~’ ‘property in question is the, State of Colorado, There*is nothing in

the record to show that the taxing officials of the domiciliary State +

of. Louisiana, or any other state of the Union, have yndertaken pt

levy taxes or have in faet collected taxes on the personal tangible

property involved in this -ease. The. effect of the argument of

counsel for Dameron is to reach a result whereby hé would wholly

escape taxation on hs IT Trt pre ve are confi.

dent that that was not ‘tthe purpose of the statute. ;

Our use of the word é‘deemed’’ in the statute, as being the -

equivalent of ‘{ presumed,’ is not without support. In Zimmer

“man Vv. Zimmerman, *75 Ore. 085, 155 P. (2d) 293. the Oregon

’

CLAIBORNE DAMERON Ys. ROY W. CASS ; 17

‘@

Supreme Court applied such a mean fig to the. word “deemed, ”’

and then continued as follows ; |

ag ‘Set forth in the Regtatement of Confliet of Laws.’’-

25.

“We thin it clear from the authorities above cited that the

Various constitutional provisions which’ state ‘that no. soldier

shall be deemed to have acquirgd a residence in theastate in

consequence of or by reason of having been stationeddwithin

the same should be construed as if the word ‘merely’ were in-

" serted immediately before words ‘in consequence of’ and that ———~

such constitutional provisions do not—prevent-the | acquisition

of domicil-by y-soidier under the rules of ‘the common law ds

° : |

In the instant case it will he noted that there is no nea i

of supplying a modifying adverb, such. ax the word

- “*merely,*’ used in the Oregon case, to bring out the true meaning.

It already. is present in the phrase, “solely by reason of being

absent therefrom [his domicile].’’ 6 re Sat

Thus the Oregon court held that there was a rebuttable pre-

sumption that the sojourning soldier did not acquire a residence ;

hut that the contraty could be shown from facts other than his

‘Mere presence in Oregon uiider military orders, Satay

So in the instant case we interpret the statute; ‘as applied ‘to the

presented facts, as though it reads as follows: °°

. . Colorado in comphance with military orders,’?

a re ’ s mote

‘For the’ purposes of taxation in Tespect: of any person |

[Dameron], or of his pérsonal property , [household goods |

* * * by any State, denritory” wis, Ma City and County

of: Denver]. such person [Danferon] shall not be deemed to

have last a residence or domicile in’ arly State, .* # |

{ Louisiana] solely by reason. of “being. absent theréfrom in

compliance -with military * # .* orders, or to have acquired

& residence or domicile in, or to have become résident in or a

resident of, any other State * #* # ‘[ Colorado}, while, and

solely by reason of heing so absent. For the purposes of taxa-

tion in respect of the personal ‘Property, 7. * -*. if any. such

person [Dameron] by any State, *. # J [Colorgdo] of

which such person is not a residént. or .in which: he is not

domiciled, * * @#» his ‘‘ personal property shall not. be.

‘deemed to be located or present in or to have a. sitns for taxa-*

tion in such ‘state * * « -[ Colorado} ”’ solely. hy reason

of his being absent from Tonisiana and _statidned jy

cmp

We have repeated the phrase. ‘solely by reason of his heing ab-

sent from. Louisiana. an

d stationed in Colorado in compliahee with «

Fh Tatar es "

18 ¢ CLAPBORNE DAMERON Vs., ROY .W. Cass

uiilitary orders,’ because that is the Sort of person the statute is’

deséribing when it refers, in the last sentence, te ‘the personal

property of afly such person, ‘ ; os bay

A serviceman’s personal tangible ‘property is not -deeme%t. to be

tocated jy Colorado solely by reason of its Colorado situs: and of

his being alisent from his’ Louisiana domicile: There must be some

ba .

___,.additional factor if that presumption is to be upset. That some-

+S)

thing élse, in the instant ‘ease, is tho complete failure to show that

the property has been taxed in. the state of domicile.. We believe

the second paragraph of the amendment indicates -the legislative

intent that taxes in the state of domicile shall have been paid be-

fore the inferences of situs of personal ‘tangible property can be

brought into play- Thus sub-section B, having indicated® that

‘ the term *‘taxation’’ shaij inelude the additional items of licenses,

fees or excises imposed in respect to’motor vehicles or the use there-

of, immediately makes it clear thag those items must. be’ paid he-

. fore they can be included within that term. , aoe

"Because of otir views as to the scope and limitations’ of the -

Soldiers’ and Sailors’ Civil Relief Act as applied to the facts in

this case, and also because of our ‘Views that the application of

the act in the instant case does not confliet with the taxing statute

+ ofthe City ‘andeCounty of Denver and the State of

_27 ~~ Colorado, it ‘is. not’ ecessary that we consider. the second

question raised by eotnsel for the Treasurer of the City and.

_ County of PBenver, namely: That the provision of the Soldiers’

_and Sailors’ Civil Raief Act, here under-gjscussion, is unconsti-

tutional. aa) : Oe.

The judgment aceérdingly is reversed.” «

(File Endorsement Omitted)

28 + aN THE SUPREME COURT OF COLORADO

Judgment—May 12, 1952

6 i .

‘This eause having been brought to this Court by writ of error to

review the judgment of the District Céurt‘of the City and County

of Denver, and having been heretofore argued by pounsel and sub-

. °

mitted to-the consideration hind judgment of the Court upon. the

niatters assigned as constituting érebr. in the procedings and judg-

ment of said District Court. thy ae | ee SR

_ dt is therefore ordered und adjwlged that the judement of said

Distriet Court be, and the same is hereby, reversed, annulled and

altogether held for naught; and that -this catse he remanded to

_, Sad District Court for further preceedings in harthony with the

opinion of the Court on file.

° ; ae e pe es -

CLAIBORNE DAMERON VS. ROY Ww. CASs — Pee |

» : < i F Fr Ta ge , . ° re

It is: furthtr ordered and adjudged that said plaintiff in error

do have and‘ reeover of and-from said defendant in, error its costs

in this Court expended, to be taxed. Pree Be

‘fh

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“29 ee IN SUPREME COURT OF COLORADO

-/ Petition for Rehearing Filed May 26, 1952

Conres now the above-named Gefendant in error by his counsel,

* and respectfully petitions this Honorable Court for a rehearing

. of this cause, and in this respect, Submits xg _ , :

1. That this Honorable Court misapprehended the meaning Qf .

that portion of Section 574 of ‘the Soldiers” and Sailors’ Civil

Relief Act providing: “* * * and personal property shall not be

- ‘deemed to be located or present in or to have a situs. for taxation

‘In such State * * * |”? that such provision relates to ‘one in military

service tinder orders who. ‘( * * # is not a resident or in which he

is not. domicitd * * * 77 —. Rae eee

2. That’ the agreed facts coneede that, the defendant in error,

was neither a resident nor legal domiciliary of Colorado (p. 14 r.).

“— That the statute creates the fiction of non-existence of .per-

_ Sonal property for purposes of. taxation, and thus becomes an

exemption statute, ae Sree ese tre

4.‘That exemption. statutes are entirely legal. (See Carson, v.

_ Roane-Anderson Co., Vol. 96, No. 6 Law Ed. Advance Opinions

of U. 8. Supreme Ct., p. 198—issue of January 28, 1952), :

5. That the statute in quegtion, as finally passed, was ‘and is

much broader’ than the Stated purpose of the. Congressional

Committee reports, ie Peas ae

6;/This ‘Honorable Court misconeéived the meaning of the second

- paragraph of said act by interpreting & to mean that taxes must .

have been paid on the personal property ‘in question, in some other

state, before the statute affords protection; said second,

30 section relates only to motor. vehicles,

¢. This Honorable Court as‘in erro? in holding that the eon-

tention made ou. defendant in error’s. behalf (pp. 8-0 opinion )

would allow any serviceman to obtain exemption of his physical

tangible property by simply removing it beyond the boundaries

of his domicile. The property would have ta he with tha service.

Qian at the place where he was serving under. orders. ’

8. This. Honorable Court is correct’ in ‘Stating that the word |

‘exemption’? does not appear in the act, but fails fo accord eqrtriv-

: . -, ; & ’ ; 7 .

Smee CLAIBORNE DAMERON YS, ROY W. CASS

alent meaning to the fiction’ created of nog-existence in the taxing

Jurisdiction of the tangible @ersonal property of the serviceman,

The reconsideration of ‘this cause’ is respectfully requested.

/s/ Cnyarves 8. Via

Charles S. Vigil

United States Attorney for

the District-of Colorado - :

/s/ Henry E. Lurz 7

Henry E. Lutz © :

* o

° Soe ° | Assistant U. 8. Attornéy for

erica ; the District of Colorado

HEL/dh a ts re:

(File Endorsement Omitted) -

at eae, IN SUPREME COURT OF COLORADO

Motion for Stay--Filed May 26, 1952 |

P J

Comes Now the defendant in error above, named by his counsel,’

and respectfully moves the Court that its,mandate or remittitur |

to the District Court of the City and County of Denver be with-

held and stayed until such time as the Supreme Court of the @

shall have finally passed on this case, and in this behalf represents

and shows that’it is the purpose and intention of this defendant

in error, and within the time therefor allowed by law, and by .

' proper appellate -process to take this ease to said Supreme Court

of the United States; hat the matters and things herein involved

are publici juris, and affect the Tight and ‘interests not only of a

vast number of persons iti'the armed services of the United States,

but also affect the rights and interests of a large number.of state

‘taxing. authorities; that it is in the public interest that this ease be

passed upon by the ultimate authority having jurisdiction thereof.

“ie /s/ Cuartes S, Vier . ae

vs. Ts Charts’ S. Vien }

epee re United States Attorney fom

the District of Colorado ?

Js/ Hexey E. Lurz

Henry E. Lutz . a

eae _ Assistant U. 8. Attorney for

vie o-| the District of Colorado.

HEL/dh bs | ” eee &

ae (File Endorsement Othitted) | et

-_ ®

Me is hereby, denied. eS a ee ie ele

; . ; Ose 2 ‘ ce

CLAIBORNE DAMERON Ys. ROY W. CASS De aip Saas, “lo |

g ° . a pa ° t toy ‘ . d za . i ms

32 af pai 18 SUPREME COURT OF COLORADO. Prk Shing

Upon consideration: of the, 1otion of the defendant in error for

a rehearing in this cause, Nie Court™ being’ well advised in‘ the

" premises, doth this day order that said motion be, aan the same

° . / . 4 ‘ we °

= | : IN SUPREME COURT OF COLORADO SEG ORAS ay

' Order—June 5, 1952 Se 7 os

Upon consideration of the motion of the defendant - 4m error, ,

it is this day ordered that remit har herein be. is eee and stayed

pending: appeal -of defendant i m error’ to the i 4s me Cert ot the

' United States. JG a

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Cierk’s Certificate to foregoing transcript omitted in printing.

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“US GOVERNMENT PRixt NG CFF; CE1952—222232/¢ 0 343

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~ 23 0°. In the Supreme Court of the State of Colorado

Bees Ce & ss ris Shae iY

: z ) | : ‘No. 16613 | : of

7; o 3 en ’ : ee

Roy W. Cass; Manacer or ReveENvE anp Ex-OrriciozTrrasvren

OF THE Crry:anp County oF IJENVER, PLAINTIFF IN ERROR

’ f 7 . Sa : $ “ty v. , . ; :

So CLampoRNE Daxirron, DEFENDANT IN ERROR

4 e ° i : e

‘Error ‘to the District Court of the City and Count y of Denver,

, State of Colorailo. Honorable Flenry S. Lindsley, J udge.

ee % . . . , 3 2

Order of substitution

“ Se ry a ° : S 4

acs October 2;°1952 °

ne . : a . a . —y a 7 . 1 S. is

Come now the bavak in Errot by his counsel and the De-.

fendant in Error by his counsel,. and’ jointly move the Court to.

+ enter its Order substituting A. 8, Brodhead, Manager of Revenue

* and Ex-Officio Treasurer of thie City and County of Denver, in

the place and in the stead of Roy W. Cass, former Manager of

Revenue and Ex-Officio Treasurer of the City and County of

- Denver. Tess ee é

Upen consideration wheredf, it is hereby ordered that A. S.

Brodhead, Manager of Revenué and 1ux-Officia Freasurer of the

_ City and County of Denver, be, and he hereby is, substituted as -

‘

Plaintiff in Error’ in this cause in, the place and stead of Roy W:

Cass, former Manager of Revenue and Ex-Officio Freastirer of

the City and County of Denver. ec sere

Bys+he Court : . 9. Sosias “e Sy

[SEAL]. UE SE acai e: she 8 2S EAE S. Jackson, _

: cat : Sat 3 Chief Justice..,

; | PERN FERED Sa ae nd ;

In Department, October “SPIG2. © ’ Sie

A true copy. ./ - ore. |

Attest: : Poe ap TER

RO ptic ees Pos | . _ Grorei: A. Trow,

° ie fae nee Abe seae : of the Supreme Court 3

; ; *.. of the State of Colorado. :

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‘BaF ., . Supreme Court’ of the United. States .

ont - — No. 302, October Term. 1952

° ; . a4

. CLAIBORNE | JAMERON, PETITIONER

MERO

A.S, Bropueap, Manacek or Reven CE AND Ex-Orricio. TREASURER

: ‘ . ea F a %

* + $° OF THE Crry AND County og Denve®, 2 * YJ

cs. -. ° Grder allowin g certiorari

: Filed November 24, 1952 |

The petition herein: for a writ of -certiorari to the Supreme

Court .of thea State of Colorado is granted. Case transferred to

the summary docket. ee ae: : 6

And it-\s further ordered that the duly certified copy of the “

transcript of the proceeding\belew which accompanied the peti- _.

tion shall be treated as though We in response to such writ. 2

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Pinions below 4 i:

WEES Jurisdiction 2

. Question presented “2:

Statute involved meres eect ee tio: 2

Piste ss Fee eset tet ses 2

Reasons for granting the writ 2020 ohoo.. 4

Conelusion ta ee eee ee ee | 11

Appendix oe + ie

} . .

; . . 3 CITATIONS. 3 y

ERAN Sgt i Ms ee iets bse

Boone y. Lightner; 319U. S561 7 Med ys We 9:

Carson v. Roane-Anderson Co., 3420. 8.292. 9,10

Federal Land Bank v. Bismarck Co, 240.80.

* MD? Maistresy. Leffers, 333 U. S.1_ 2 ee

Maricopa County y. Valley Bank, 318 U.S. 357.

Pittman v. Home Owners Corp?, 308 U.S. 21

Statutes: -° 0. 3

- Act of July 3, 1944, ©. 397, 58 Stat. 799:

Reel (50 U.S.C, App., 1946 ed.2See. 574) ' + 13

: See..2 (50 U.S.C. App., 1946 ed., Sev. 574 note), 15

Soldiers’ and Sailors’ Civil Relief Act-of 1940, ¢. 88s,

54 Stat. 1178: eae

See. 101 (50 U.S. C. App., 1946 ed., See. 511)... 9

See. 100 (50.U. S.C. App., 1946 ed. See gio) 12

See. 514 (50 U.S.C. App., 1946 ed., See. 574 ) 4, 5, 6, 7,13

Miscellaneous : ® Set chs |

S. Rep. No. 959, 8th Cong., 2d- Sess, -. tet tomes O85

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of Colorado ehtered on May 12, 1952, reveysi

The District Court of the City and County of

“Sathe Supreme Gourtof the Waited States

¢ Ocroper TERM, 1952

: : : *g

No. 302 . heeos

: @: CLAIBORNE Dameron, PETITIONER -

“ ge 7

A. S. Brovuean, MANAGER on Beyerin AND: Ex-

OFFICIO TREASURER OF THE CITY AND COUNTY OF |

‘DENVER | eas |

‘ RETITION FOR A‘WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

The Acting Wolicitor General, on behalf of Clai,

berne Dameron, prays that a. writ of certiorari.

issue to review the judgment of the Supreme Court

decision of the District Court of the Cj ; |

County of Denver entered on March 18, 1950, Se x

OPINIONS BELOW |

Denver rendered no opinion. The amended opinion

of, fhe Supreme (¢ ‘ourt.of Colorado. (R. 12) is not

net . (2)

_ Yet officially reported, but is unofficially geported |

in 244 P. 2d 1082, re

| 3 : JURISDICTION -

io ee judgment of the Supreme Court of Colorado

_ Was entered on May 12, 1952; (R: 18.), A petition

for rehearing was denied on June 2, 1952 (R. 21),

at which time the court premulgated its amended

opanion in the case (R. 12). The jurisdiction of

this Court is invoked under Section 4257 (3), '28

U.S.C. ieee ae aay

oa a QUESTION PRESENTED 2 :

Whether, under-Section 514 of the Soldiers’ and

Sailors’ Civil Relief ‘Act of 1940 as amended by the

Act of July 3. 1944, the tangible personal property

of the petitioner, a domiciliary of Louisiana and a

member of the armed forces of the United States

__ present inthe State of Colorado solely because of

his military orders, is subject to taxation by the —

City and County of Denver in which the personal

property is located. Seep eee

ee : STATUTE INVOLVED |

The pertizient portion of the Soldiers’ and Sail-

ors’ Civil Relief Act.of 1940, as’ amended, and

excerpts from:S., Rept. 959, 78th Cong., 2 Sess..

are set forth in the Appendix, infra, pp. 12-16,

eee ‘. STATEMENT | |

The material facts-are undisputed, As alleged

In the complaint (R. 2-6) and admitted by the an-:

swer (R. 6-8); they are as follows:

The petitioner i is, and at all times 1 material to this

; ease has been, a commissioned officer of the United

States Air F oree.” The r@spondent: is the duly ap-

pointed, qualified and acting Manager of Revenue

of the City and County of Denver, State of Colo--

rado, and as such is Ex-officio Treasurer: and Asses-

sor. (R. 3.) .

During all of the year 1948,. ‘the petitioner Wilsy

a _fomanissioned officer ot the. United States Air. .

Force assigned. to duty : at Lowry Field, an imstalla-,

tion of the United States Air F orce jn'the State of

_ Colorado, in part within and in part adjacent to

». the City ‘and County of Denver. In compliance

with’ military order rs, the petitioner temporarily

was obliged to be and remain in the City and County

of: Denver, and during all times pertinent to this

case he resided in rented quarters at Apartment

One, 1523 Willow Street, which are priv ately owned

premises loeated in the ( “ty and. County of Denver.

(R. 32) 7 e3

The petitioner, during the whole of the calendaé

year 1948 and for many prior years \ ras, and at the

present time i is, a citizen and resident of the State

of Lotisiana domiciled in the town of Port Allen

in the parish of West Baton Rouge. During all of °

such time, the’ petitioner has been a qualified voter

in Louisiana (R)3.)- ae

On April 23, 1948. the respondent, as*Manager

of Revenu@yand Ex- officio: Treasurer of the City

and County of Denver. asse ssed a tax of $23.51 for’

the vear 1948 upon. tangible personal property —

_ owned exclusively by the petitioner And possessed

Ps ph « 4 ;

—and maintained by him in the City ane County of »

~ Denver at. Apariment ‘One, 4625 Willow Street.

(R. 3.) he! Dey :

On April 1, 1949, petitioner, upon the demand of |

> the respondent and solely for the purpose of avoid-

- ing the imposition ‘upon himself and his property.

- of penalties-and interest, and the seizure, impotnd-.

' ing and sale of his tangible personal property, paid

to the Fespondent as’ Ex-officid-Preasurer of the

~~ City. and County of Denver under protest $23.51 -

laimed by the respondent to be due and payable

. as taxes ori such tangible soeaney property.

Noe BOSS ee 3 Patent ih:

_ Petitioner instituted this action to recover the

tax. (R. 45.) On March ‘18, 1950, the District

Court of the City and County-of 1 Jenver entered —

its judgment in favor of the petitioner and against

the respondent: (R. 8.) Phe Supreme Court

of Colorado reversed. (R. 18.) | |

| _ REASONS FOR GRANTING THE WRIT

- ~ The Supreme Court of Colorado has held that

states and their political subdivisions in whith a

member. of the armed forces temporarily resides

purstant to military orders gnay tax his tangible

personal property unless he has paid a tax on such

property to the state of liis domicile. “The decision

is clearly erroneolts in that it fails to give effect .

to the express terms of Section 514 of the Soldiers’

and Sailors’ Civil Relief Act, as amended. If it -

is allowed ‘to stand, it will expose members of the

armed forces to the multiple taxation of personal —

_ property which Congress ‘specifically intended to

_ avert. Sees

‘

Ait. %, In pertinent part, Section 514 of the Soldiers ms

‘and Sailors’ Civil Relief Act (Appendix, infra,

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pp. 13-14) provides: = bs

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— See. 514. (1) For the purposes of taxation

a . : Ol ak ae ge ns

In respect of any person, or of his personal

property, income, or gross. income, ‘by’ any’

State, Territory; possession, or politi¢al. sub-

division of any of the foregoing, or by the Dis-

deemed to have Tost a residence or-domicile in

any State, Territory,; possession, er political

subdivision of any of the foregoing, or in the

_ District. of Columbia, solely by reason of being

absent therefrom in compliance with military.

or naval orders, or to have acquired & residence

possession, or political subdivision of any of

the foregoing, or the: District of Columbia,

while, and solely by reason of beings so absent.

.For the purposes of taxation in respect of the

‘ ; oye ‘

personal property, income, or gross income of

any such person by any State, Territory, pos-

session, or political subdivégion of any of the

foregoing, or the District of Columbia, of

which such person isnot a resiflent or in which

he is not domiciled, compensation for military

or naval sdrvice shall not be deemed income for . .

“services performed within, er: from sources

within, such State, Territory, possession,

political subdivision: or District, and persenal

property shall not be deemed to be located or

. e . ? e

trict of Columbia, such person shall not be.

_ or domicile in, or to have become resident in

-or a.res¥ent of, any other State, Territory, |

—- : Sea

present in or to have @ situs. for taxation in

such State, Territori » Posse amen, or political

subdivi iston, or district * . , [Emphasis

s . . ~~ a bors

, supplied.) | De:

Tn -short, Section 514 provides, in clear and un-:

ambiguous language, that’ When one in the military

service is ahsent from his state of domicile i In com-

_pliance with, military orders, no state other thay

the statesof domicile shall inypose a tax upon his

personat, property or income. The italicized clause,

providing that’ ‘ ‘personal property shall not be’

deemed to be loeated o or present in or to hav ea situs °

for taxation in such State, Territory, possession, or

political subdivision, or district’ an which the -

serviceman and his property are présent pursuant

". to his military orders, would seem to be dispositive

of this ¢ase.

However, the Supreme Court t ef Colorado, look-

’ Ing to the stated Congressional purpose “that i

military personnel -* # # should not be stibjected

to multiple taxdtion .of personal property’? (S.

‘Rept. 959, 78th Cong., 2d Sess, (Appendix X, infra,

p. 16) Dp. and construing “deemed” to mean “pre-.

sumed,” held that Section 514 created only a con-

_ ditional exemption from personal property taxes,

the condition being proof that the state of the

~ Servis ‘gnan’s domicile has levied and collec ‘ted, a

_ tax otr his personal] property. The Colorado court

assumed that the purpose of the statute was satis-

fied if the state in which a serviceman is tempo--

rarily present in.compliance with orders does not

; \ ,

impose a tax oh personal] property which is already

being taxed by the state of his domicile,

e = ; . = ‘ x of

No such condition appears in the statute. iis fe

over, when Congress desired to condition a service-

man’s exemption from taxation by a state to which

he goes in compliance with ‘orders upon payment

of a tax to the state of his residence or domicile,

it did so expressly in this same statute. ‘Thus, para-

graph (2) of Section 514 specifically provides that

the serviceman’s exempfion from payment of loeal

“licenses, fees, or excise imposed in res sect . to

9 7 =

motor vehicles or the use thereof’? is conditioned

“upon his payment of the license, fee, or excise _re-

quired‘ by the state of which he is a resdert or in

which he is dotniciled. Contrary to the view of the

: Colorado court; the condition in paragraph (2) of

Section 514 is not a general policy to: be applied to

the entire section, but emphasizes, instead, that

Congress did not intend to so limit the exemption

from taxation which is conterred in ‘para graph (1)

of Section 514 involved here. . Moreover, it is quite’ |

obvious ¢hat thé condition in paragraph (2) was

not’ inserted for reyenue purposes. but rather to

insure -that servicemen’s — would” be

_ licensed somewhere for- general la}

purposes, ei !

Moreover, the decision of the Colorado court

disregards the methods adopted by Congress to

‘ eliminate multiple taxation of the personal prop-

erty of members of the armed forces. Congress

sought tg do this by providing that only the state

2 $2 ON

‘enforcement

\ &

- 7 o | : aN 2 to ; | Gees

“of the serviceman’s, permanetit reidence ort .

— domicile could tax his personal property. |

The Senate Committee on, Military Affairs, *in

reporting the 1944 amendment to the Aet which

added the specific exemption for personal property?’

taxes stated (App. p..16) ee = Se ee

*.* *-The result has been that servicemen

find themselves at times subjected to personal-

‘property taxes on-the same preperty in tore

-» than one State-during the same ‘alendar year

by reason of being moved under orders.’

‘Thes problem arises largely from the fact that

personal property is assessed for tax#@ion on dif-

ferent dates by the various states and local -govern-

“thents, with the fesitt that & serviceman trans-

_ ferred from state to state could be taxed by each,

"state in which he held his personal property on the \.

assessment date. Congress sought to prevent, this a

by: providing that only the state of ‘the service-.

man’s permanent residence or domicile can tax his

" personal property. In the instant case, for ex-.

ample, the decision of the Supreme Court of Colo-

rado would prevent Colorado from taxing the petie

tioner if he is being taxed by Louisiana, his state’

_ of domicile; ‘but if petitioner is taxed by‘Colorado

and is then transferred to another state; the latter

could tax him again since Colorado was not his state

2 of domiciles Similarly, servicemen: domiciled in

states such as New York Which have no personal. .

| property tax could be taxed by each state in which

ee renee set

. & g ~ ¢

: S.- Rept 959, 78th Cong., 2d Sess

]

‘they “and ‘the?

multiple taxation referred tfin the Committee

\. pretation’ upon it.

Onesies ee

Report. Only.an application of Sectioh 514. in,

accordance with its express terms can: effectuate

e e

its purpose,

2. This Court’s decistons niake it abundantly.

e clear that exemptions. from taxation expressly es-

a z - : , e a . *. bs

tablished by Congress for federa® agencies and

Instrumentalities will not be Whittled-away by the

courts.” It is equally clear that when-Congress has

provided such an exemption it will ‘be interpreted’

by this Court:in keepingavith the broad purpose of

protecting that which Congress sought to immunize __

from. state taxation.* The Colorado court either

: soa eo, oS BR

property happened to be on the -

assessment day. Thus, the decision below exposes

members of the armed Le gr ag very type of*.

’

felt that those principles were inapplicable, or dis- mye

. : e 3 as 27 . . . ees

régarded thém when. in effect, it aniended the sfat-

utein order to place a,restrictive and narrow inter-

¢ #..»

\. This Court has declared that thé Soldiers’ and

| penors! Civil Relief Act is to be read with friendly

_ eyes\(Le Maistre v. Le fers,

;

It **is\always to be liberally. eonstruedsto protect

those: Who have been obliged to drop their own:

‘affairs to take up the burdens of theenation”’ -

(Boone v. Kightner, 319 U. S. 961,575). The rea-

_ * Pittman V..-Home Owners Corp., 308 U.S. 21; Federal Land

Bank v. Bismarck Co., 314 U. S. 95; Maricopa County vy.

Valley Bank, 318 U. S. 357.361; Carson y. Roane-Anderson -

Co., 342.U, 8. 232, 3 >. ote

* Pittman v. Home Owners Corji., supra; Federal Land Bani:

v. Bismayek (o., supra; Carson y. Roanie-Ande rson Co.. supra, :

333. U.S. 1,6), and that -

mp oela

soning of the Colorado court andthe strained con

struction of the statute reached ‘by that court seém

not in harmony with’ either the broad purposes of

the statute, the terms of the section, or. the appli-

Cable principles of statutory construction. |

| Having construed the section as it did, the Colo- ”

rado court stated that it would not consider the

: question of the constitutionality of the seetion’.’ ae.

seems beyond question that Section 514 is valid.

' Carson. ¥. Roane-Anderson ( '0., 342 UL S. at 233-

7 Nc ee BEAR See ee :

3. The decision below is\the f st to construe Sec-

‘tion 514. While the amowts involved in such per-

sonal property taxes ard rar ‘ly large, the decision

below stands as an Lt

thorities to imposd similar taxes upon hundreds

of thousands of members of the armed forces who

are serving elsewhere than in. their states of resi-.

_ dence or domicile and who, under the decision, are

without protection from multiple taxation. The

wstaiit case alone will ‘determine Whether such

taxes may be _ass&sed upon more ‘than 2,000

‘servicemen, who-are teniporarily stationed in the'

’ City aind- County of Denver pursuant to military

, orders, as well as upon a considerable number of

servicemen stationed at other points in Colorado.

_ * We thimk that the decision. inferentially, at least, upholds :

the constitutionality. of the provision in so far as it-is given

limited application to a serviceman who has paid taxes<in his’

state of domicile. but Whose. personal property: would, under

the law ‘of the military duty state, be regarded as taxable by:

that state. *

‘itation to other taxing au-

“a . Bat ; ‘1 eR LA Vea aq oi ge ee argent ‘

eae CONCLUSION

Ze & as ae cae ge 5 ee

The’question is an Important one and the decision toy

below'seemis clearly in confiict withthe feders] stat- .

res ’ : _— . » " é <, 77 sie

ute. . Accordingly, ithis respectfully submitted that

this ‘petition for. a writ of certiorari should be:

granted. - - ¢.- | Git 4

- Roperr.L, Stern, |

X Acting Solicitor Genéral.

AUGUST 1952, : Reich sta iaitetch ss Sa ent

v a

- a.

@ 23 /

’ ehh

A) :

APPENDIX

Soldiers’ ps ‘Sailors’ Civil Relief Act of ot 0,

¢. 888, D4 Stat. 11738:

cs See. 100. “In order to provide for dvsiathen. |

and expedite. the natig ral defense under the-

emergent ¢ ‘-onditions which. are tifreatening the

peace and security of the United States and to

enablethe’ White d States the mor e successfully

to fulfill the requirements ef the national de-

fense, provision is, hereby. made to suspend |

_ enfore ‘ement of ¢ ‘ivil liabilities, in certain cases,

“ep ersonsin the'military service of the United

States i in order to enable such persons to devote”

+ thei ‘ir entire energy to the defense needs of the

Nattor, ance to this-end the following provi- f.

sions are madé‘fer the temporary’ suspension

of Tegal ‘proce eedingS and transactions which

may prejudice the civil Wights of persons in’

“such service during the period herein specified

ever which this Act remaiys in force.

(90'ULS.C, App., 1946 ed., Nec. 510.)

- See. 101, (1y"The “Dersons in-mili-

tary. service’? and the term “persous in the

military service of the United States’’, as used

inthis Act, shall ine ‘ude the following persons

and no others: All members of the Army of the

United States, the United States Navy, the

Marine Corps, the Coast Guard, and all officers

of the Public’ Health: Service detailed by

‘proper authority for duty either with the>

Army or the Navy. The term‘ military: serv-

iee’”, as wsed in this-Act, shall signify Federal

service on active duty with any branch of serv-

° vA

————s sé

¥ 19° <, | . ‘

ice heretofere referred to or y mentioned as well

as training or education under"the supagvi ision

% of the United States preliminary to induction,

into the militayy service. T he terms ‘active.

service’? or ‘tactrve duty’? shall include the

period during which a person in military

service is absent from duty on account of sick-

ness, wounds, leave, or other lawful | cause,

ewes e.. # a9 i y)

(50 wus S.C. App., 1946 ed., § sec, 511. )

Act ef July 2 By. 1944, e, 397, 58 Stat. 722: ,

sees * * * That segtion 514 of the. Soldiers’

and Sailors” Civil Relief Act of 1940 (54 Stat.

ae 9), as added by the Soldiers’ and Sailors’

‘ivil Relief Act Amendmeits of 1942 2 (56 Stat.

Ye is amended. to read as follows

“*Sem 914. (1) For the purposes of taxation

" in‘respect of any person, or.of his personal

property, income, or gross income, by. any —

State, Territory, possession, or politica il sub-

division of any of the. foregoing, or by the

District of Columbia, such person shall not .:

be- deemed to have lost a residence or

sion, or. political subdivision of any of the

foregoing, or in the District of Co'umbia,

solely. by ‘reason of being, absent therefrom _

.. in éompliance with military or naval orders, |

ar to have acquired a residence or domi-’

cile in, or to have ‘become reside ‘nt in or a resi-_

‘dent of, any other State, Ter ritor ¥, possession,

domicile in any State, Territory, posses-"

l4 paar ures

or political subdivision of any of the foregoing,

or the District of Columbia. while, and solely

by reason of being, so absent. For the pur-

poses vf taxation in respect of the \personal

property, income, or gross income of any such

person by any State, Territory, possession, or

political subdivision of any of the foregoing, or

_ the District of Columbia, of Which such person

is nota resident or in which he is not domiriled,

- compensation eA military or: naval service

shall not be detmed income for services -per-.

formed within, or ‘from sources within, such

State, Territory, possession, political subdivi-—

sion, or District, and personal property shall -

—hot he deemed to be located or present in or to

have a situs for taxation in such State, Terri- |

tory, possession, or political subdivision, oradis-

trict: Provided, That nothing.contained in this

section shall prevent taxation by any State,

Territory, possession, or politi¢al subdivision’

of any of the foregoing, or thé Dist rict of Co- \-

-lumbia in respect of personal property. used in

or arising from a trade or businéss. if it other- -

wise has Jurisdiction. This section shall be

effective as of September 8, 1939, except that it

Shall not require the crediting or refunding of

any tax paid prior to October 6, 1942,

*(2) When used in this section, (a) the _

térm ‘personal property’ shall inelude tangible

hicles ), and (bh) the term ‘taxation’ shalk in-

clude but not be limited to lieénses, fees, or ex-

and intangihje property (including motor ve-.

-CISES Imposed in) respect to motor vehicles aD is

the use thereof: Provided? That. the lieernse,-

fee,or excise required by the State. Territory,

¢ ,

the person is a resident or in which he is domi-

Ciled has been paid.’ >

(50 U.8.04, App.@) 946 ed., See, oe +.)

Bee. 2. Nothing contained in this Act shall be |

construed to require.the crediting or refundin

of any tax in respect of tangibls personal. piop-

erty (including license®, fees, or excise im

posed in respect of motor vehicles or the use

thereof) paid prior to the date of its enact-

ment.

a ee, tore.

+50 U.S.C. App’, 1946 ed., See, OT4 note.)

Rep. No. 959, 78th Cong., 2d Sess. pp. 1-2%

The Committee on Military Affairs, to whom

~ WasTeferred the bill, H: R..4733. to amend sec-

tion 5H of the Soldiers’ and Sailors’ Civil Re-

lief Act; having considered the same. submit

the following report.thereon; with the. reeom-_

mendation that it do pass.

” o'Phe-purpese of the proposed legislation is to.

Clarify the intent of sectién 514 of the Soldiers’

and Sailors’ Cid Relief Act as added by see-

tion 17 of the act of October 6, 1942 (56 Stat.

. Possession, or Distriet of Columbia of ‘which -.

769, 777). When that provision of law was .

added to the act to relieve persons in ‘service -

from liability’ of - double taxation by being

° . : . s

moved from one'State to another under orders, -

it was intended .that it should apply to per-

sonal-property taxes as wellas to income taxes.

As presently constituted. it primarily affects

taxes in respect te income and other taxes

hased on residence or domicile, byt it does not

prevent the. State of “temporary résidence™

from. taxing‘ tangible personal. property ae-

os & °&

16 |

. p : vs’ ; ; ee 5

tually located in such ‘State so long as the tax

_ + does not depend on residence or domicile, . 4

fewStates have taken the position that tangible

_ personal property of military personnel who

are only- temporarily within théir jurisdiction

_ ‘does not acquire a situs for taxation, but it.has

been held that ‘section 514 of the act as now

Written does not affect the right of a State to

' assess personal-property taxes. on property

Within its jurisdiction. The result: has been

that servicemen find themselves ‘at times sub-

jected to personal-property taxes on the same.

property in more than one State during the

same calendar year by reason of being. moved

under orders. =» sane eee tear eet

Your committee considers that the existing

law pertaining to State taxation of -the per-

sonal property of persons in military service

present in the various States in complhance

_ With military orders should he clarified : that

bs the military personnel concerned should not be

“subjected to multiple taxation of’ personal

' property by the various States an® should be’

giventhe same protection as to personal prop-

erty taxes as is now provided in respect of in-

come taxes, — | | *

~ “ eee 7 ae

> :

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a oS i a AS ESS

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