Dromey v. Wis. Tax Comm'n

• Court: Wisconsin Supreme Court
• Writing for the Court: WICKHEM
• Citation: Dromey v. Wis. Tax Comm'n, 227 Wis. 267, 278 N.W. 400 (Wis. 1938)
• Decision Date: 15 March 1938
• Parties: DROMEY v. WISCONSIN TAX COMMISSION et al.

227 Wis. 267

278 N.W. 400

DROMEY

v.WISCONSIN TAX COMMISSION et al.

Supreme Court of Wisconsin.

March 15, 1938.

Appeal from a judgment of the Circuit Court for St. Croix County; George Thompson, Judge.

Affirmed.

Action by John P. Dromey, administrator of the estate of Charles Jensch, to set aside a determination of the Wisconsin Tax Commission affirming a decision of the income tax board of review of St. Croix county and denying a claim for refund of income tax for the calendar year 1934 paid under protest. The trial court ordered judgment affirming the determination of the Tax Commission. Judgment was entered on August 27, 1937. Plaintiff appeals.

S. W. Jensch, of Hudson (A. B. Christofferson of St. Paul, Minn., of counsel), for appellant.

Orland S. Loomis, Atty. Gen., and Harold H. Persons, Asst. Atty. Gen., for respondents.

WICKHEM, Justice.

[1] The first contention of plaintiff is that decedent Jensch had removed from the state and was a nonresident since 1929, and that all income taxes levied in years following 1929 were void for want of jurisdiction over decedent. This question was resolved against the contentions of plaintiff by all of the administrative tribunals dealing with the question, and by the circuit court. It will be necessary to set forth the facts in some detail in disposing of this contention.

Following his graduation from high school in 1890, decedent was employed by the Chicago, St. Paul, Minneapolis & Omaha Railway Company, and in 1928 was the comptroller of the company in St. Paul. Beginning January 1, 1929, he was also the comptroller of the Chicago & Northwestern Railway Company, with headquarters in Chicago. The change of work required his constant presence in Chicago and the maintenance of business headquarters there. Up to the time of the change decedent had resided in Hudson, Wis., with his wife and family, commuting daily to St. Paul. The house in which they had lived in Hudson was owned by the wife. After the change of occupation, decedent rented a room in Highland Park, Ill., and spent five nights a week there, returning usually to Hudson on Sunday. Decedent paid the taxes and repairs upon the home and maintained the family, making an allowance to his wife, out of which she paid such expenses as he did not directly pay. Decedent continued to make contributions to his church in Hudson, and also to the community chest, and to maintain a telephone in the Hudson home listed in his home. At the time decedent moved to Chicago he moved all of his personal effects and belongings, discontinued his membership in fraternal organizations in Hudson, and joined certain clubs in Chicago. He notified the Tax Commission of his change of residence in 1929 when he moved to Chicago. He did not vote either in Wisconsin or Illinois after his removal to Highland Park. He accounted for his wife continuing to live in Hudson by the fact that her aged mother (who, however, did not live with her) needed her care. The question whether decedent would ultimately live in Highland Park or some other city near Chicago had never been determined. On his return of income for the year 1934, taxpayer reported his salary received from the Chicago & Northwestern Railway. Attached to this was a claim that the property was exempt because earned entirely outside of Wisconsin. He also made a claim for deduction of living expenses incurred outside of Wisconsin as an expense of his business. The explanation contains a statement that the taxpayer is and has been a resident of the city of Hudson, St. Croix county, Wis., for the past 45 years, maintaining his home there with his wife and children. In stating his claim for deduction, the statement reads: “The deduction is claimed for only those expenses incurred while living in Chicago, Illinois, during approximately five days a week away from his home.”

The evidence amply sustains the finding of fact that the taxpayer had never effectively changed his residence or domicile.

Section 71.01, Stats.1933, provides: “Every natural person domiciled in the state of Wisconsin, and every other natural person who maintains a permanent place of abode within the state or spends in the aggregate more than seven months of the income year within the state, shall be presumed to be residing within the state for the purposes of determining liability for income taxes and surtaxes.”

[2] Up to 1929, decedent was concededly a resident of Wisconsin. The well-established rule with respect to change of residence or domicile is thus stated in Will of Eaton, 186 Wis. 124, 202 N.W. 309, 312: “A domicile once established is not lost until a new one is acquired. Every one must at all times have a domicile somewhere. Where an actual domicile has once been established, two things are necessary to create a new domicile-first, an abandonment of the old domicile, and second, the intention and establishment of a new domicile. The mere intention to abandon a domicile once established is not of itself sufficient to create a new domicile, for before a person can be said to have changed his domicile, even though he manifests an intention to abandon the old domicile, a new domicile must be shown.”

See, also, Kellogg v. Supervisors of Winnebago County, 42 Wis. 97.

There is no evidence of abandonment by deceased of his Wisconsin domicile or residence, and the establishment of a new one elsewhere. The taxpayer simply roomed in Highland Park during the five days of each week when business required his presence in Chicago. He maintained a home in Hudson, and his wife remained there. His child returned there as to a home. He paid the household expenses, contributed to the community chest, and maintained his church membership at Hudson. Concededly, his abode in Highland Park was not a permanent one or one which he had any fixed intention of presently adopting as a permanent abode, domicile, or residence. It was simply a response to the necessities of his work. It furnished him shelter during the period when he was not at home. The place at Hudson was the home to which he...