Commonwealth v. Rutherfoord

• Decision Date: 15 June 1933
• Citation: 169 S.E. 909
• Parties: COMMONWEALTH. v. RUTHERFOORD.
• Court: Virginia Supreme Court

169 S.E. 909

COMMONWEALTH.

v.RUTHERFOORD.

Supreme Court of Appeals of Virginia.

June 15, 1933.

Error to Circuit Court of City of Richmond.

Proceedings by Helen M. B. Rutherfoord, opposed by the Commonwealth of Virginia, for relief from certain tax assessments. To review a judgment in favor of the plaintiff, the defendant brings error.

Judgment affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

W. W. Martin, of Richmond, for plaintiff in error.

John S. Barbour and G. Thomas Dunlop, both of Washington, D. C, for defendant in error.

BROWNING, Justice.

The commonwealth of Virginia, under the appropriate statute for such proceedings, assessed Mrs. Rutherfoord on her income and intangible personal property for taxes for the years 1928, 1929, and 1930, in the sum of $18,330.63. If she were legally assessable the amount is concededly correct.

She instituted proceedings under the applicable section of the Code of Virginia praying for relief from the assessments which she alleged were without warrant of law under the statutes of Virginia and under the Constitution of the United States, and that if the attempt to subject her to the burden of the tax was within the contemplation of the statutes of Virginia, then the enforcement of their provisions would be in violation of her rights as a citizen of the state of New York and the United States, and would deprive her of her property in derogation of the Fourteenth and Nineteenth Amendments of the Constitution of the United States.

The court below granted the prayer of the petition and declared the assessment void and exonerated the petitioner from payment of the tax.

The commonwealth made the assessments upon the theory that Mrs. Rutherfoord was, at the time they were made, domiciled in Virginia for the purposes of taxation and for every other purpose except that of voting.

The facts appear to be clearly and succinctly stated in the "Stipulation of Facts, " appearing in the record and therefore we quote them:

"Helen M. B. Rutherfoord, the applicant, hereinafter referred to as Mrs. Rutherfoord, is the wife of John Rutherfoord, hereinafter referred to as Judge Rutherfoord, to whom she was married in New Rochelle, New York, on the 19th day of July, 1927. She was born Helen Mason, in Philadelphia, Pennsylvania, and resided there and in Washington, D. C, until February 14, 1922, when she was married to John George Beresford, a citizen of the State of New York, residing at New Rochelle, County of Westchester, New York. Mr. Beresford died on the 25th day of May, 1925, leaving to her by his will a considerable estate which was partially invested in securities.

"During Mrs. Rutherfoord's marriage to Mr. Beresford she acquired and still owns certain improved real estate in Washington, D. C, consisting of a dwelling house known as 1602 Twentieth Street which was during her marriage to Mr. Beresford and still is occupied by her during a portion of each year. At the time of her marriage to Mr. Beresford she took up her residence and domicile with him at New Rochelle, State of New York, where he owned and occupied a dwelling house and in which they resided as their home. During Mrs. Rutherfoord's marriage to Mr. Beresford both he and she paid State income and other taxes as citizens and residents of the State of New York, always claiming their domicile in that State. Upon the death of Mr. Beresford she continued to reside in New Rochelle, New York, in the house she acquired by devise from her husband, and continued to maintain her domicile there and continued to pay income taxes and other taxes properly assessable against her by the State of New York as a citizen and resident of that State.

"On the 19th day of July, 1927, Mrs. Rutherfoord was married to Judge Rutherfoord at her home in New Rochelle, New York, and Mrs. Rutherfoord and Judge Rutherfoord have lived together amicably as husband and wife since that time.

"Prior to Mrs. Rutherfoord's marriage to Judge Rutherfoord she had discussed with him the question of her domicile after their marriage and whether by such marriage she would lose her status as a citizen of the State of New York. Judge Rutherfoord, as well asher attorney, had told her that in their opinion she would be free to maintain hex separate domicile wherever she chose. Judge Rutherfoord also told her that he was perfectly willing that she should maintain her domicile in New York State and that in any event he intended to abandon his domicile in Virginia.

"At the time of his marriage to Mrs. Rutherfoord Judge Rutherfoord was a citizen of and domiciled in the City of Richmond, State of Virginia. Immediately prior to his marriage he closed his law office in Richmond, sold his law library to C. M. Chichester and resigned his membership in the Westmoreland Club of Richmond where he had been a resident member. In November, 1927, he was elected to resident membership in the Metropolitan Club of Washington, D. C. Subsequently Judge Rutherfoord transferred his voting place to Mathews County, Virginia, as hereinafter stated, and took a nonresident membership in the Westmoreland Club of Richmond.

"After his marriage and during the remainder of the year 1927 and the greater part of the year 1928 Judge Rutherfoord was absent from the State of Virginia and had no physical place of abode of any kind there, having given up his rooms in Richmond in June, 1927. Since his marriage Judge Rutherfoord has had no physical place of abode anywhere other than the several places of abode owned by Mrs. Rutherfoord.

"On November 6, 1928, at the general election held in that month Judge Rutherfoord exercised the right of franchise as a registered voter in Lee Ward, Richmond, Virginia; subsequently, in February, 1929, he transferred his voting place from Lee Ward, Richmond, Virginia, to Battery Precinct, Westville District, Mathews County, Virginia, by proceedings as provided by Section 100 of the Code of Virginia, and voted in the said Battery Precinct at the Democratic Primary held on August 6, 1929.

"Judge Rutherfoord has filed as a legal resident of Virginia in 1927, 1928, 1929 and 1930 his State tax returns of income and intangible property, has paid the taxes assessed upon such returns and has also for the said years paid his State capitation tax as a resident of Virginia. Copies of said tax returns are attached hereto and made a part hereof and are designated as Commonwealth G, H, I and J respectively.

"During the spring of 1928 Mrs. Rutherfoord purchased an old place called 'Green Plains' in Mathews County, Virginia, and Judge Rutherfoord and Mrs. Rutherfoord subsequent to that time have occupied Green Plains at intervals, but in no year have they occupied it for as much as four months.

"Subsequent to her marriage to Judge Rutherfoord Mrs. Rutherfoord had spent a portion of her time each year in Washington, D. C, occupying the house which she owns at 1602 Twentieth Street, N. W., and a portion of the time each year at her residence at New Rochelle, New York, and a portion of the time during the years 1928, 1929 and 1930 at Green Plains in Mathews County, Virginia. Her residence at New Rochelle, New York, has never been closed since her marriage to Judge Rutherfoord and ever since establishing her domicile in New York in 1922 she has continued to pay as a resident all taxes properly assessable against her by the State of New York and the political subdivision thereof, including income taxes and taxes on her real estate and tangible personal property. Her income tax returns have been continuously filed in New York State as a resident of that State, including income tax returns filed in 1926, 1927, 1928, 1929 and 1930. Mrs. Rutherfoord paid income tax to the State of New York in the amount of ¥1, 161.71 on her income for the calendar year 1927, and on her income for the calendar year 1928 she paid to the State of New York income tax in the amount of $S95.82, and on her income for the calendar year 1929 she paid to the State of New York tax in the sum of $1,116.37.

"Mrs. Rutherfoord did not in the years 1927, 1928, 1929 and 1930, or any of them pay to the State of New York, or any political subdivision thereof, taxes on any intangible personal property owned by her for the reason that such intangible personal property was not assessable with property taxes under the laws of the State of New York or of the political subdivision of which the town of New Rochelle constitutes a part.

"Mrs. Rutherfoord is still a registered voter in the State of New York and has never voluntarily or knowingly changed her status with respect to her domicile in that State, and has not now and never has had any intention or desire to establish her domicile in the State of Virginia. It is now and has been since 1922 her intention and desire to continue to be a citizen of and domiciled in the State of New York.

"On January 7, 1931, Helen M. B. Rutherfoord was assessed by the Department of Taxation of the Commonwealth of Virginia with State income taxes and taxes on intangible personal property owned by her for the tax assessment years 1928, 1929 and 1930, based upon detailed information furnished voluntarily to the Department of Taxation by the attorneys for Mrs. Rutherfoord. but without waiver of any of her rights or of her protest hereinafter mentioned after said Department had requested such information and after she had declined and protested its right to require the same or to base any assessment against her thereon, in order merely to facilitate a judicial determination of all questions involved. Copies of said as-sessments are attached hereto and made a part hereof and are, designated as Commonwealth A, B, C, D, E and F. In assessing State income taxes the Department of Taxation has in pursuance of section 39 of the Tax Code of Virginia (Acts 1928, c. 45) deducted from the amount of income tax which would have otherwise been assessable in Virginia the full...