Baker v. Wis. Dep't of Taxation

• Decision Date: 15 June 1945
• Citation: 246 Wis. 611,18 N.W.2d 331
• Parties: BAKER v. WISCONSIN DEPARTMENT OF TAXATION.
• Court: Wisconsin Supreme Court

246 Wis. 611

18 N.W.2d 331

BAKER

v.WISCONSIN DEPARTMENT OF TAXATION.

Supreme Court of Wisconsin.

May 1, 1945.

Rehearing Denied June 15, 1945.

Appeal from an order of the Circuit Court for Milwaukee County; August E. Braun, Judge.

Affirmed.

Norman L. Baker appealed to the circuit court from an order of the Wisconsin Board of Tax Appeals affirming as assessment made by the Assessor of Incomes for Milwaukee county of Baker's income for the year 1941, and of income taxes, surtaxes, etc., based thereon. The order was confirmed by the circuit court and Baker appealed.

Norman L. Baker, of Milwaukee, for appellant.

John E. Martin, Atty. Gen., and Harold H. Persons, Asst. Atty. Gen., for respondent.

FRITZ, Justice.

On this appeal the principal question is whether the Assessor of Incomes for Milwaukee county and the Wisconsin Board of Tax Appeals (hereinafter called the Board) erred in determining (1) that Baker, whose domicile had been in Milwaukee county continuously since 1904, did not, beginning on January 1, 1941, and continuing during that year, in fact and as a matter of law, abandon his Milwaukee domicile and acquire a new domicile in Beulah, Michigan; and (2) that therefore his taxable income for the year 1941 was subject to taxation under Ch. 71, Wis. Stats. If the Board's determination in those respects was warranted by the evidence and the record on the hearing before the Board, then its decision and order were rightly confirmed by the circuit court's order from which Baker appealed, and there is no occasion to consider other questions raised by him in other respects. Briefly stated, Baker's contentions are that beginning January 1, 1941, he decided that a house on land which he owned in Beulah, Michigan, should be and was selected by him in good faith as his permanent home and domicile, without any intention of his having a home or domicile elsewhere or of ever returning to Wisconsin; that he then abandoned all evidence of residence and had no permanent place of abode in Wisconsin, and did not there spend in the aggregate more than seven months in a year; that all his declarations, acts and conduct are consistent with and prove his bona fide change of domicile to the new domicile established by him in Michigan; and that the only question involved is whether appellant in good faith intended to change his domicile.

Due consideration of all matters in the record, including Baker's testimony at the hearing on May 5, 1943, upon which the Board's decision and order were based, discloses that the record well warranted the Board finding the following facts stated in its decision. From 1907 to July 1941 Baker owned and occupied a family dwelling house on Summit Avenue in Milwaukee, which he conveyed to his wife in 1941. On his income prior to and including the year 1940 he paid, as a resident of Wisconsin, the income tax assessed thereon. In his income tax return filed in March 1941 for his 1940 income, he made a declaration to the effect that he had changed his residence from Milwaukee, Wisconsin, to Beulah, Michigan. Upon his failure in 1942 to file a return for his 1941 income, the Assessor on July 8, 1942, requested him to make such a return. On August 1, 1942, he stated in a return that Beulah, Michigan, was his legal residence and that in his view he was not subject to the income tax laws of Wisconsin. He omitted to state his gross income for 1941 or any statutory deductions. Thereupon, the Assessor determined that he considered Baker domiciled in Wisconsin for 1941 and subject to its income tax laws, and that his gross income for 1941 was $13,166; and upon this he levied the assessment which is in question herein. No deduction for personal exemptions was allowed to Baker, but in the income tax return filed for 1941 by his wife, who resided in the Summit Avenue family dwelling place in Milwaukee, she claimed the full personal exemption of $17.50 allowable to husband and wife under sec. 71.05(2)(b), Stats.

Ever since 1925, Baker has been continuously employed as an associate general counsel by the Northwestern Mutual Life Insurance Company (hereinafter called ‘Northwestern’) at its general offices in Milwaukee, and his work was such that he had to travel frequently out of Wisconsin to attend to Northwestern's litigation or other essential duties incidental to his employment. In 1925 Baker constructed a summer residence on his land at Beulah, and there he and his family resorted, and he spent his three week vacation and many week-ends and holidays during the summer months, and frequently also during the early spring and late fall. He usually traveled there by car ferry between Milwaukee and Ludington, Michigan, and then to Beulah by automobile; and returned to Milwaukee each Monday morning by the same travel accommodations. He planned on retiring from his employment upon becoming eligible to pension in October 1941; and resolved that he would change his legal domicile from Wisconsin to Michigan. In this he was prompted somewhat by his impression that he was being treated unfairly by an official charged with the statutory responsibility of assessing and enforcing the collection of income taxes in Milwaukee county. But early in 1941 Baker decided it would be inadvisable for him to resign his position with Northwestern because financial reasons then existing and the imminence of war made him hesitant to give up his well paid employment; and because, in view of his heavy sense of responsibility to Northwestern as the result of his long years of highly useful service and association, he concluded it was his duty to see to a successful termination important litigation entrusted to his care, which was pending throughout the country and would not be disposed of by the time of his anticipated retirement. In consequence of these circumstances he found it impossible to carry out his contemplated plan of living at Beulah during the entire year; but arranged to spend many week-ends there, leaving Milwaukee by car ferry Friday night and returning to Milwaukee early Monday morning.

In attempting to support his claim that he was not in Wisconsin in the aggregate of more than seven months in the year, and as he found that because of existing restrictions on transportation he could not conveniently continue making week-end trips to Beulah, he often also traveled and spent week-ends in Chicago, and returned to Milwaukee ordinarily on Monday morning in time to there perform the duties of his employment. Prior and up to 1941 Baker and his wife and others of his family made their home in their dwelling on Summit Avenue, and there kept their household...