Sweeney v. District of Columbia

Decision Date11 March 1940
Docket NumberNo. 7361.,7361.
PartiesSWEENEY v. DISTRICT OF COLUMBIA.
CourtU.S. Court of Appeals — District of Columbia Circuit

Joseph A. Cantrel and James J. Sweeney, both of Washington, D. C., for petitioner.

Elwood H. Seal, Vernon E. West, and Glenn Simmon, all of Washington, D. C., for respondent.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

Writ of Certiorari Denied May 20, 1940. See 60 S.Ct. 1082, 84 L.Ed. ___.

RUTLEDGE, Associate Justice.

The question presented is whether petitioner is subject to the tax on intangible personalty imposed by Sections 754 and 756, Title 20, District of Columbia Code.1 He paid assessments for 1938 and 1939 under protest, claiming that his domicil has been at all times in Boston, Massachusetts. The Board denied his claim for refund, holding that he was domiciled on the taxable dates in the District. It also increased the assessments to include taxes on funds and securities, petitioner's ownership of which was disclosed only at the hearing, and imposed penalties for nonpayment of the increases when due. This action is not contested except as it also is involved in the question of domicil. The appeal is from the Board's decision so rendered.

Petitioner was domiciled in Boston in 1918, when he first came to the District as a member of the military service of the United States. Since his discharge here in 1919, he has resided continuously in the District. He married in 1924, and since 1933 he and his wife have maintained their only domestic establishment in a rented apartment which respondent contends is their legal domicil. He has been employed continuously by the Federal Government, as a Civil Service employee until 1928, since then as an attorney in the Department of Justice under appointments some of which were limited in duration. He has at all times by word and act steadfastly maintained that his permanent home, legal residence and domicil are in Boston, and has declared repeatedly his intention to return on expiration of his public service here, with a view to running for public office or seeking a judicial appointment in his home state. He asserts that he has resided here at all times only temporarily in order to discharge his governmental duties, always with the intention of returning home on their completion and never with that of living permanently in the District or making it other than a place of sojourn or temporary abode as required by his duties.2

On the other hand, respondent says that petitioner's long-continued residence in Washington has ripened into domiciliary change; that his home, principal head-quarters and only domestic establishment are here; that he has no other in Massachusetts or elsewhere; that his motive in remaining here to take and perform work is immaterial, as are the facts that it is governmental and that the situs of performance is the national capital. It is urged that his subjective intention to retain his legal domicil in Massachusetts cannot overcome these facts and amounts to no more than a "floating intention to return to his former place of abode at some future period," which "will not defeat the newly acquired residence or the rights and obligations which attach to it."3 It is said also that the Board has found as a fact that petitioner's domicil was in the District on the taxable dates, and that the finding is conclusive as being supported by substantial evidence. Both parties have proceeded on the theory that domicil in the legal sense is the fulcrum of the tax.

The question in the present case concerns a Federal employee. That only Federal officials can determine it creates an embarrassment from which escape would be desirable. But a doubtful escape in order to avoid the embarrassment merely would create a greater one.4

We do not consider the Board's finding conclusive. Domicil is a compound of fact and law. When there is no question concerning the applicable law and conflict concerns only the facts, the Board's determination is conclusive if supported by substantial evidence. But where, upon admitted or undisputed facts, the decision turns on controverted legal principles, it is reviewable. Here there is no dispute as to the essential facts. The conflict relates only to their legal effect. That is true though opposite inferences are drawn as to petitioner's intent. The difference is not as to what he intended in fact, but as to whether that intent can be given the legal effect which he claims for it. The Board's decision, therefore, is reviewable.

The tax-imposing provision is Section 754. It lays the tax upon "the moneys and credits * * * of any person * * * resident or engaged in business within said District * * *." (Italics supplied) Section 756 specially defines "resident" for purposes of the assessment and creates exemptions.5 The statute carefully avoids using "domicil." But clearly it applies to persons domiciled in the District. Section 754 was the general, not a special, taxing act as to intangible property. The term it uses is "resident." Without more, its normal and usual meaning is "domiciled."6 That is true as to both inclusive and exclusive function. The section, therefore, unaided by Section 756, would tax domiciliaries and no others.

As the case has been presented to us, we are not required to determine whether Section 756 was intended to extend the tax to others than those already taxed by Section 754. Respondent, for its own purposes (cf. note 20, infra), has conceded that the assessments were invalid if petitioner was not domiciled in the District on the taxable dates.7 Nor is the case rested upon the special definition contained in Section 756 as having either presumptive or conclusive effect in determining domicil.8 As presented, therefore, the issue is one of general, not special, domicil.9

So considered, we think petitioner's domicil has remained in Massachusetts. It was there in 1918 and concededly for some period after his removal to Washington. Respondent fixes upon no specific date for a later shift, but asserts merely that it occurred some time prior to 1938.10

Traditional formula requires conjunction of physical presence and animus manendi in the new location to bring about a domiciliary change. There is no question here concerning the former — conflict is confined to the element of intent. As presented it takes two forms: (1) whether, disregarding the nature of petitioner's work and its situs, a sufficient intention is shown by the facts; (2) whether the character of his duties and the situs of performance make the case different from one of private employment here or elsewhere. Respondent asserts that Federal employment in the District is not different, for purposes of determining domicil, from any other and therefore that that element in the case is immaterial except as it may bear factually upon the existence of domiciliary intention just as private employment under like circumstances would do. It is claimed also that, so considered, the facts establish the domiciliary change.11 Petitioner takes the contrary position on both contentions.

In the view we take of the case, we do not undertake to determine whether petitioner would be domiciled here if he had come or had remained in order to accept private employment or engage in private business. Boiled down to its essence, the question here is whether a citizen and resident of a state must surrender his state allegiance for all the purposes in which domicil may be controlling when he accepts Federal employment in the District of indefinite or relatively permanent duration.12 The question is not whether he may do so if he wishes. To hold that he must would create startling consequences, including unjust and untenable, not to say intolerable, discriminations.

Some of them may be shown by illustrations stated in the briefs or at the argument. Military and naval men, it was conceded, would retain domicil in the state of residence at the time of appointment.13 This, regardless of length of absence from and lack of a domestic habitation in the state, presence of one here or length of residence in the District. As to them the presumption of continuity remains in full force. Likewise with elected officials, the President, the Vice President and, normally, members of Congress. So also with cabinet officers and persons holding only short-term or temporary appointments in executive, administrative and Congressional services. These, it is said, either by reason of their limited tenure and consequent assumed brevity of service or, in the military branches, because of its assumed compulsory character and regardless of its permanence, occupy special and preferred status which prevents applying to them criteria normally applicable to all others. In contrast with them, it is said, are members of the Supreme Court and other distinctively Federal courts sitting in the District,14 members of administrative tribunals enjoying long, though not unlimited tenure,15 Civil Service employees, and all others whose tenure is indefinite or is not limited to a short term. As to these the argument is carried to the full length of the logic implicit in the premises. It is that upon appointment and establishment of a place of abode in the District, whether it be their only or merely their principal one, with intention to remain indefinitely for the discharge of their duties and only a so-called "floating" intention to return on their completion, they lose domiciliation in the state and become domiciled forthwith in the District. The conclusion is applied even to Senators and Congressmen in the not infrequent cases of those who succeed, practically speaking, in establishing an indefinite tenure and, resting upon the demonstrated confidence of constituents, maintain their only or principal domestic establishments here.16 In short, except for the...

To continue reading

Request your trial
33 cases
  • White v. Manchin, s. 16312
    • United States
    • Supreme Court of West Virginia
    • July 13, 1984
    ...city. See generally District of Columbia v. Murphy, 314 U.S. 441, 454-55, 62 S.Ct. 303, 309, 86 L.Ed. 329 (1941); Sweeney v. District of Columbia, 113 F.2d 25, 32 (D.C.Cir.), cert. denied, 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402 (1940); Richardson v. Richardson, 258 Ala. 423, 426, 63 So.......
  • Williams v. State of North Carolina
    • United States
    • United States Supreme Court
    • May 21, 1945
    ...82 L.Ed. 268; State of Texas v. Florida, 306 U.S. 398, 59 S.Ct. 563, 830, 83 L.Ed. 817, 121 A.L.R. 1179; Sweeney v. District of Columbia, 72 App.D.C. 30, 113 F.2d 25, 129 A.L.R. 1370, certiorari denied 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402. Compare District of Columbia v. Murphy, 314 U......
  • Harris v. Kellogg, Brown & Root Servs., Inc.
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • December 16, 2015
    ...to change must be 'clear and unequivocal.”' Turek v. Lane , 317 F.Supp. 349, 350 (E.D.Pa.1970) (citing Sween e y v. District of Columbia , 113 F.2d 25, 33 (D.C.App.1940) ); see also Deckers v. Rose , 592 F.Supp. 25, 27 (M.D.Fla.1984) (“As a member of the military service, plaintiff is presu......
  • Mittleman's Estate v. C. I. R.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 3, 1975
    ...395, 68 S.Ct. 525, 541-542, 92 L.Ed. 746, 765-766 (1948). See also 26 U.S.C. § 7482(c)(1) (1970); Sweeney v. District of Columbia, 72 App.D.C. 30, 32, 113 F.2d 25, 27, 129 A.L.R. 1370 (1940), Cert. denied, 310 U.S. 631, 60 S.Ct. 1082, 84 L.Ed. 1402 (1940); Hughes v. Commissioner of Internal......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT