11 T.C. 116 (1948), 12925, Pentland v. C. I. R.

Docket Nº:12925.
Citation:11 T.C. 116
Opinion Judge:LEECH, Judge:
Party Name:ROBERT PENTLAND, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Attorney:Albert B. Bernstein, Esq., for the petitioner. Bernard D. Hathcock, Esq., for the respondent.
Case Date:July 30, 1948
Court:United States Tax Court
 
FREE EXCERPT

Page 116

11 T.C. 116 (1948)

ROBERT PENTLAND, JR., PETITIONER,

v.

COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

No. 12925.

United States Tax Court.

July 30, 1948

Petitioner, domiciled in Florida, in April 1942 entered the military service of the United States. Early in 1943 he was transferred from his post of duty in Washington, D.C., to an air command located near Fort Worth, Texas. He established his family and otherwise pursued a domestic life in the latter city. Upon being discharged from active military duty in October 1944, petitioner claimed the right to be and was paid by the Federal Government the cost of his transportation back to Miami, Florida. Prior to and during his military service, the principal businesses in which petitioner engaged were located in the State of Florida. Held, where one is serving in the armed forces of the United States, his intention to take up a new residence must be established by clear and convincing evidence. The record does not thus indicate that petitioner had a bona fide intention to establish his legal domicile in the State of Texas. Consequently, the respondent properly determined that petitioner was not entitled to report his income for the taxable year 1943 on a community tax basis.

Albert B. Bernstein, Esq., for the petitioner.

Bernard D. Hathcock, Esq., for the respondent.

This proceeding involves a deficiency in income tax for the calendar year 1943 in the amount of $15,168.02.

The sole issue is whether the respondent erred in determining that petitioner was not entitled to file his return for the taxable year on the community income basis.

FINDINGS OF FACT.

Petitioner is an individual. His income tax return for the year 1943 was filed with the collector of internal revenue at Dallas, Texas.

In April 1942 petitioner, a resident of Miami, Florida, volunteered to enter the United States Army. Petitioner was commissioned as an officer and first assigned to Washington, D.C. In the early part of 1943, petitioner's superiors determined to transfer him to one of the other air bases located throughout the United States. Petitioner was given the privilege of selecting the particular base to which to be transferred, and he chose the one located near Fort Worth, Texas. Petitioner arrived at the latter city about April 8, 1943. He promptly opened a checking account and later rented a safety vault at the Continental National Bank of Fort Worth. In May 1943 petitioner was joined in Fort Worth by his wife and daughter. Petitioner rented living quarters, consisting of three bedrooms, living room, dining room and bath. He employed one full time and one part time servant,

Page 117

for whom he secured living quarters across the street. Petitioner and his wife inspected several houses, with the thought of buying, but did not purchase. Petitioner borrowed $45,000 from the Continental National Bank of Fort Worth to repay outstanding bank loans in various parts of the country where he had business interests. He transferred his securities to the vault of the Continental National Bank of Fort Worth. Petitioner also purchased an interest in some oil properties in Fort Worth. When he became qualified, he voted once or twice in elections held in Fort Worth.

At the time petitioner entered the Army, he was a member of certain social clubs in Florida. He did not resign from these clubs, since membership fees were waived to those members serving in the military forces. During the time petitioner lived in Fort Worth he joined three social clubs, and he and his wife participated in the activities of those clubs. During this period charge accounts were also opened with several Fort Worth merchants.

When petitioner entered the Army he was a certified public account and senior member of the firm of Pentland, Purvis, Keller & Milton, of Miami, Florida. He was also chairman of the board of directors of Margaret Ann Grocery Stores, a Florida corporation. He owned approximately 42 or 43 per cent of the capital stock of that corporation. Margaret Ann Grocery Stores continued to pay salaries to its officers who were active in the military service of the United States. The accounting firm of which petitioner was the...

To continue reading

FREE SIGN UP