Pendleton v. Commonwealth

• Citation: 110 Va. 229,65 S.E. 536
• Court: Supreme Court of Virginia
• Decision Date: 16 September 1909
• Parties: PENDLETON. v. COMMONWEALTH.

65 S.E. 536

(110 Va. 229)

PENDLETON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 16, 1909.

1. Taxation (§ 59^*)—Personal Taxation-Liability.

The liability to personal taxation is determined not by one's citizenship, but by his residence, and hence in deciding such question whether or not he has relinquished his citizenship in the manner provided by Code 1904, § 40, is immaterial.

[Ed. Note.—For other cases, see Taxation, Dec. Dig. § 59.*]

2. Taxation (§ 20*)—Personal Tax—Nonresident.

The state has no jurisdiction to assess a tax as a personal charge against a nonresident, nor as a general rule can the personalty of a nonresident be taxed unless it has an actual situs within the state.

[Ed. Note.—For other cases, see Taxation, Cent. Dig. §§ 51-54; Dec. Dig. § 20.*]

3. Domicile (§§ 2, 4*)—Change—"Residence" —"Domicile."

The words "residence" and "domicile" are not convertible terms, the latter being a word of more extensive signification, and including, beyond mere physical presence at the particular place, positive or presumptive proof of an intention to make it a permanent abiding place; yet where a party is already abiding at a particular place while his domicile is elsewhere, and while so abiding he forms an intention to make it his home permanently, or for an indefinite period, and continues to abide there pursuant to such purpose, he thereby acquires a new domicile.

[Ed. Note.—For other cases, see Domicile, Cent. Dig. §§ 2, 5-23; Dec. Dig. §§ 2, 4.*

For other definitions, see Words and Phrases, vol. 3, pp. 2168-2179; vol. 8, pp. 7641, 7642; vol. 7, pp. 6151-6161; vol. 8, p. 7788.]

4. Taxation (§ 59*)—Personal Taxation— Residence.

Plaintiff declared in open court in 1907 that he was a resident of Washington City, and notified the assessor of the district in which his farm was situated, and where he had been assessed as a resident of this state, that he was a resident of such city. Since that time he and his family resided for the greater part of the time in that city, spending only a few days at his farm. Held, that he was not a resident of this state, so as to be subject to personal taxation in 1908.

[Ed. Note.—For other cases, see Taxation. Dec. Dig. § 59.*]

5. Banks and Banking (§ 119^2-*)—Relation Between Depositoe and Bank —"Bailment."

A general deposit in a bank creates the relation of debtor and creditor between the bank and the depositor, and, though called a deposit, it is a loan, and not a bailment.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. § 289; Dec. Dig. § 119.*

For other definitions, see Words and Phrases, vol. 1, pp. 673-676.]

6. Taxation (§ 95*) — Nonresidents — Bank Deposits.

Under Code 1904, § 487, making all personal estate within the commonwealth and the moneys and credits of persons residing therein subject to taxation, and section 489, relating to the construction of the revenue laws, the general deposits of a nonresident's money in a bank of this state are not taxable here.

[Ed. Note—For other cases, see Taxation, Cent. Dig. §§ 190-192; Dec. Dig. § 95.*]

Error to Circuit Court, Augusta County.

Petition by E. G. Pendleton for the correction of a personal tax assessment. The petition was dismissed, and plaintiff brings error. Reversed.

Jos. A. Glasgow and H. H. Kerr, for plaintiff in error.

William A. Anderson, Atty. Gen., for the Commonwealth.

BUCHANAN, J. The plaintiff in error, who was the plaintiff in the trial court, was assessed for the year 1908 with certain taxes in Pastures District, Augusta county, to wit, poll tax $1.50, on $50,000 of bonds, on $400 cash in bank, and on an income of $7,000. This assessment he claims was erroneous, on the ground that he was not a resident of the state during the year 1908. In the time prescribed by statute he filed his petition in the circuit court for that county to have said assessment corrected. The court declined to grant the relief sought, and dismissed his petition. To that order this writ of error was awarded.

It appears that the plaintiff owns, and has owned for 18 or 19 years, a farm in Augusta county, which he has improved and which he used occasionally as a summer home, but not continuously; that prior to the year 1907 for some 10 or 15 years he gave in or was assessed and paid a capitation tax and taxes on bonds and income in addition to taxes on his farm and tangible personal property in that county; that prior to the adoption of the present Constitution of the state he had registered as a voter, but whether or not he had ever voted does not appear; that he had not registered since the present Constitution had been in force; that at the December, 1907, term of court he had asked to be relieved from taxation on bonds, etc., in this state, upon the ground that he was a resident of Washington, District of Columbia, and not of this state, but the court had denied the relief sought; that he afterwards gave notice to the commissioner of the revenue of Pastures district in writing that he was not a resident of this state, and refused, when called upon by the commissioner in 1908, to give in for taxation the subjects of taxation from which he now seeks to be relieved. It further appears that the plaintiff's wife owns a residence in Washington, D. C, where he, she, their children, and servants have resided for the greater part of each year for more than 20 years; that they have spent a part of each year for some years at Atlantic City and Palm Beach, Fla., where his wife owns property; that they travel about a good deal; and that during the last two years his wife had been at his farm in Augusta county for ten days or two weeks, and he himself had been there two or three times during that period for a few days. He testified that he was a resident of Washington, D. C, where he resided the greater part of his time, and that he was not a resident of Virginia, and had so declared in open court upon his former motion to be relieved from said taxation, and prior to 1908 had notified the commissioner of the revenue that he was a resident of Washington, D. C, and not of this state.

The trial court based its refusal to grant the relief sought, not upon the ground that the plaintiff was a resident of this state, but upon the ground that he was a citizen thereof, and that in order to be entitled to the relief sought he must comply with the provisions of section 40 of the Code of 1904, which is as follows:

"Whenever a citizen of this state, by deed in writing, executed in the presence of and subscribed by two witnesses, and by them proved in the court of the county or corporation where he resides, or by open verbal declaration made in such court and entered of record, shall declare that he relinquishes the character of a citizen of this state, and shall depart out of the same, such person shall, from the time of such departure, be considered as having exercised his right of expatriation, so far as regards this state, and shall thenceforth be deemed no citizen thereof."

That section, as was properly conceded by the Attorney General, has no reference to residence or domicile, but relates entirely to citizenship and fealty, and the question of personal taxation is to be determined, not by the plaintiff's citizenship, but by his residence.

The state has no jurisdiction to assess a tax as a personal charge against a nonresident, nor as a general rule can the personalty of a nonresident be...