Commonwealth v. Bogigian

• Decision Date: 09 January 1929
• Parties: COMMONWEALTH v. BOGIGIAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 531

164 N.E. 472

COMMONWEALTH

v.BOGIGIAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1929.

Exceptions from Superior Court, Suffolk County; Elias B. Bishop, Judge.

Action by the Commeonwealth against Hagop Bogigian and others. The court found for plaintiff, and defendants bring exceptions. Exceptions overruled, and judgment entered for plaintiff.

R. A. Cutter, Asst. Atty. Gen., for the Commonwealth.

W. B. Grant and H. E. Whittemore, both of Boston, for defendants.

CROSBY, J.

This is an action of contract brought under G. L. c. 62, § 41, as amended by St. 1925, c. 186, to recover taxes assessed by the commissioner of corporations and taxationupon income received by the defendant during the calendar years 1921, 1922 and 1923.

It is alleged in the plaintiff's declaration that the defendant was on the first day of January in each of these calendar years a resident of Lancaster, in the County of Worcester in this Commonwealth, and that he received income upon which the commissioner of corporations, acting under G. L. c. 62, had assessed taxes in the sum set forth in the declaration. The defendant in his answer alleged that he was not on the first day of January 1921, nor at any time since that date, a resident of Massachusetts, but was on that date and for many years previous thereto a resident of Fresno, California; and that the assessments during the years in question were in violation of his rights under the Constitution of the United States. The case was tried before a judge of the Superior Court, sitting without a jury. At the close of the evidence each party presented requests for rulings. The defendant excepted to certain rulings allowed at the request of the plaintiff, and to the refusal to allow other rulings requested by him. The judge found for the plaintiff, and the case is before us on exceptions to the rulings so given and refused.

The principal contention of the defendant is that upon the entire evidence as matter of law he ceased to have his domicil at Lancaster in this Commonwealth in 1915, and that the judge should have found in his favor on all the counts of the declaration.

It appears from the evidence that in 1905 or 1906 the defendant bought a farm, in Lancaster, upon which he made extensive improvements at an expense of at least $20,000; and that he and his wife lived there. He does not contend that his domicil was elsewhere before 1915. It further appears that on February 27, 1915, he wrote to the chairman of the Board of Selectmen of Lancaster that he had decided to make his legal residence in Fresno, California, and requested the removal of his name from the voting list. This letter was written after he had received a bill from the town for an additional tax, which he paid under protest. In 1915 his name was stricken from the list of voters by the board of registrars, and no poll tax was assessed to him during the years 1915 to 1923 inclusive. The assessors made no investigation of the facts respecting his residence. He testified that in 1903 or 1904 he bought a ranch of one hundred and sixty acres in Fresno County; that between 1908 and 1910 he sold twenty acres, and the remaining land was rented by him for farming purposes until 1911, when he decided to develop it and proceeded to do so; that in 1916 he began raising upon the land grapes and other crops; that he did not go to California from 1904 to 1907; that he and his wife went there in the fall of 1907, remaining about two and one half months, after which they came east and went to Europe for six months and, on returning, went to Lancaster, that being their home at that time. In November or December 1908, he went to California alone, spending five or six months there at a hotel in Fresno. Early in the summer of 1909 he returned to Lancaster where he stayed for a time and then with his wife went to various watering places. In the winter of 1909-10 they spent two or three months at Riverside, California; when his wife returned east he went north for two or three months to Fresno County and then returned to Lancaster. During the spring and fall months of the years 1910 to 1914 he was in California, and during the winter months, and in the summer and early fall, he was in the east, where he maintained headquarters at his home in Lancaster. From 1914 to 1920, inclusive, he was in California most of the time supervising the development of his ranch and the raising of fruit. From 1914 to 1917 his wife was with him every winter, but she has not been in California since the winter of 1917-1918, and it appeared that she has not been in good health for some years. He has had no room in a hotel or place of abode in California since 1920. His place in Lancaster consists of eighty-three acres upon which are several buildings, the main dwelling house containing fifteen rooms. His wife has lived at the house regularly since 1918, and several servants are employed. He lived there except when he was travelling, and away in Washington and other places. While living in Lancaster he went to Boston almost daily by train and had an office there from October 1, 1911, until July 1924. In 1920 he sold the ranch in California at a large profit and now owns no property in California.

The defendant testified, subject to the plaintiff's exception, that his domicil during the years 1921, 1922 and 1923 was in California. He also testified that he has rendered Federal tax returns from California since 1915; that he voted in Fresno County in the spring of 1915, and paid his taxes in the city of Fresno, which was the county seat. There was evidence that during many years he had been an extensive traveller and had spent much time in Washington where he was interested in many matters in connection with the Federal government, and pending before both houses of Congress, and the various State departments. He testified that since 1914 he had attempted at different times to sell his place in Lancaster, and had offered it to various charitable organizations, but had been unable to dispose of it.

As to some of the taxes involved in this case questions of procedure have heretofore been raised and passed upon by this court. Bogigian v. Commissioner of Corporations & Taxation, 248 Mass. 545, 143 N. E. 671;Bogigian v. Commissioner of Corporations & Taxation, 256 Mass. 142, 152 N. E. 375. The decisions in those cases, however,...