Mitchell v. Delaware State Tax Commissioner

• Decision Date: 14 February 1945
• Citation: 42 Del. 589,42 A.2d 19
• Court: Delaware Superior Court
• Parties: WILLIAM W. MITCHELL, Appellant, v. DELAWARE STATE TAX COMMISSIONER, Appellee

42 A.2d 19

42 Del. 589

WILLIAM W. MITCHELL, Appellant, v. DELAWARE STATE TAX COMMISSIONER, Appellee

Superior Court of Delaware, New Castle

February 14, 1945

Appeal from a decision of the State Tax Board.

The decision of the State Tax Board is reversed, and the cause is remanded for such action as may be necessary in conformity herewith.

Vincent A. Theisen for the appellant.

William H. Bennethum for the appellee.

LAYTON C. J., RODNEY and TERRY, J. J., sitting.

OPINION

LAYTON, Chief Justice:

The appellant petitioned the Tax Commissioner to be relieved from the payment of the State Income Tax for the taxable year 1940, on the ground that he was not a resident of Delaware at any time during that year. The prayer of the petition was denied, and after a formal hearing before the Tax Board the ruling of the Commissioner was affirmed. This appeal is pursuant to Rule 86b of this Court.

There is little or no dispute as to the facts. The appellant was born in California in 1903, and about one year later was brought by his parents to Delaware. He attended the local public schools, and, undoubtedly, became domiciled in this State. In 1924, he left Delaware to enter the Forestry School of the University of Idaho, with no intention, as he says, of returning to this State; but while a student at the Idaho University he filed a Civil Service application for employment in the United States Forestry Service in which he stated his legal residence to be in Delaware. The application, as filed, was never altered for the reason, as it was alleged, that the appellant did not want to lose his Civil Service priority. On graduation in 1928 the appellant asserts that he had no intention of returning to Delaware permanently to remain, but because of poor health he did return and remained here convalescing until the Fall of 1931. He then obtained employment as a fireman in the State of Pennsylvania, and remained in that employment until December 31, 1933, when he accepted a position in the United States Forestry Service. These facts were offered evidently in an effort to show that the appellant had abandoned his domicile in Delaware as early as 1924 when he left to attend the University of Idaho. During this time, and until after 1940, the appellant's mother maintained a home in Wilmington which he visited with some frequency. There is nothing in the record to show that the appellant acquired a domicile in Idaho, Pennsylvania, or elsewhere, and under the familiar rule that a domicile once established continues until it is superseded by a new one, he remained domiciled in Delaware.

The appellant's position in the Forestry Department was non-political, being under the rules of the Civil Service, permanent in character in line with the appellant's chosen profession, and meant a considerable advancement to him. The duties required his constant presence in Washington and on January 1, 1934, he removed to that city and has since lived there in the same apartment house and in the same employment. He rented an unfurnished apartment and furnished it completely with furnishings bought in Washington. He had transferred his church membership in Wilmington to a Washington Church, and became a member of several social organizations connected with the church. He opened and maintained banking and purchasing accounts in the city, and contributed to the Washington Community Chest Fund and other local churches. He described himself as being of Washington in a will made in 1938. He paid personal property taxes in the District of Columbia in the years 1937, 1938 and 1939; and in 1940 he registered with the Selective Service in Washington. In March, 1939, the United States Supreme Court held that salaries of federal employees were taxable by the states of their residence. State Tax Commission of Utah v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950. The appellant asserts that the decision created much confusion among the federal employees in the District of Columbia, and being uncertain of his status, he, while on a visit to Delaware, filed a Delaware income tax return for the year 1939, and paid the tax. Shortly after he filed a District of Columbia income tax return for the same year, and paid the tax also. It appears that he resisted the right of the District to charge him with liability for income taxes in 1939 and 1940 on the ground that he was domiciled in Delaware, but without avail; and in April 1941, he filed a District of Columbia income tax return and paid a tax on the income which he had earned during the year 1940, no part of which was derived from any source in Delaware. The appellant voted at elections in Delaware from 1933 to and including the general election held in November, 1940. His explanation of his voting in this State in 1940 was that he desired to vote at the presidential election, and there being no elective franchise in the District of Columbia, he presented the facts of his case to a Delaware Registration Board while in Wilmington on a visit, was permitted to register as a qualified voter, and subsequently did vote at the election. At an informal hearing before the Delaware State Tax Board in October, 1940, he claimed Delaware as his residence for Civil Service and voting purposes, advanced the same claim of status in a letter to the Tax Commissioner in February, 1942, and it was not until November of that year that he formally renounced his claim of residence in Delaware for all purposes.

Section 2 of Article V of the Constitution of Delaware provides that no one is entitled to vote at a general election held in this State unless he has been a resident of the State for one year next preceding the election; and 144, Sec. 110 (b) of the Revised Code of 1935, as amended by Chapter 61, Volume 42, Delaware Laws, defines the word "taxable" for income tax purposes as meaning "A natural person twenty-one years of age or over, who is a resident of the State of Delaware or who has been a resident of the State of Delaware at any time during the income year." In the constitutional provision and in the statute the word "resident" is synonymous with the legal term "domiciled." 1 Beale, Confl. Laws, 111, 112.

The ruling of the State Tax Board was based on the view that the appellant had failed to sustain the burden of proving a change of domicil from Delaware to the city of Washington having regard for his asserted claim of residence in this State for Civil Service and voting purposes, and his actually voting here in 1940. A consideration of the law of domicil is made necessary.

In New York Trust Co. v. Riley, (Del. Sup.) 24 Del.Ch. 354, 16 A.2d 772, 783 (affirmed, 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885), the essentials of domicil of choice were said to be: "the fact of physical presence at a dwelling place and the intention to make that place home. There must be a concurrence of fact and intent. * * * There must be an actual abandonment of the first domicile coupled with an intention not to return to it, and the acquisition of a new domicile by actual residence in another place with the intention of making that place a permanent home. Whether one has changed his domicile from one place to another must depend largely on his intention. The intention must be of permanent or indefinite living at a given place, not for mere temporary or special purposes, but with a present intention of making that place home unless or until something uncertain or unexpected shall induce the adoption of some other permanent home; or, negatively expressed, there must be an absence of any present intention of not residing at the place permanently or for an indefinite time. It follows that absence from one's place of residence, even for a long time on business, pleasure, reasons of health, education of children, or other special purpose, will not effect a change of domicile if, all the while, the person intends to be absent only for the accomplishment of the temporary purpose and...