Reiersen v. Commissioner of Revenue

• Decision Date: 22 June 1988
• Docket Number: No. 87-872.,87-872.
• Citation: 524 N.E.2d 857,26 Mass. App. Ct. 124
• Parties: FREDERICK D. REIERSEN & another vs. COMMISSIONER OF REVENUE.
• Court: Appeals Court of Massachusetts

26 Mass. App. Ct. 124

524 N.E.2d 857

FREDERICK D. REIERSEN & another¹ vs. COMMISSIONER OF REVENUE.

No. 87-872.

Appeals Court of Massachusetts, Suffolk.

April 8, 1988.

June 22, 1988.

Present: GRANT, KASS, & SMITH, JJ.

Barry A. Bachrach for the taxpayers.

Jamin Raskin, Assistant Attorney General, for the Commissioner of Revenue.

KASS, J.

For the years 1977, 1978, and 1979, Frederick D. Reiersen claimed exemption from income tax liability to the Commonwealth on the grounds that he was domiciled in the Republic of the Philippines and earned his entire income from sources in that country. See G.L.c. 62, §§ 1(f), 4, & 5A. The Commissioner of Revenue (commissioner) determined Reiersen's domicil to be in Worcester, a ruling which the Appellate Tax Board (board) affirmed.²

Although where a person is domiciled is mainly a question of fact, Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn., 327 Mass. 631, 632 (1951), the elements to be considered in locating a domicil present a question of law.³ See Hawes v. Club Ecuestre El Commandante, 598 F.2d 698, 699, 702 (1st Cir.1979); Bailey & Van Dorn, Taxation § 491 (1986). The taxpayer argues that the commissioner and the board have applied criteria superseded by the opinions in Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 576-577 (1974), Dane v. Registrars of Voters of Concord, 374 Mass. 152, 161-162 (1978), Ramos v. Registrars of Voters of Norfolk, 374 Mass. 176, 179 (1978), and Coulombre v. Registrars of Voters of Worcester, 3 Mass. App. Ct. 206, 208 (1975). Those cases relied heavily on the analysis of domicil which appears in the Restatement (Second) of Conflict of Laws (1969). "A person's domicil is usually the place where he has his home." Id. at § 11 comment a. Home, in turn, is "the place where a person dwells and which is the center of his domestic, social and civil life." Id. at § 12. A change of domicil occurs "when a person with capacity to change his domicil is physically present in a place and intends to make that place his home for the time at least; `the fact and intent must concur.'" Hershkoff v. Registrars of Voters of Worcester, 366 Mass. at 576-577 (citations omitted). See also Opinion of the Justices, 5 Met. 587, 589 (1843); Restatement (Second) of Conflict of Laws §§ 15-16 & 18 (1969).

For his part, the commissioner urges that the definition of domicil articulated for voter registration purposes in the Hershkoff line of cases may be more flexible than is appropriate for tax cases. If, the commissioner suggests, a classic formulation of domicil, such as appears in Commonwealth v. Davis, 284 Mass. 41, 49-50 (1933), is applied, the domicil compass needle infallibly points to Worcester.

We sketch the facts found by the board, with some amplification from uncontroverted evidence in the record. In 1966, having completed high school, Reiersen went to work as a junior maintenance man at Sprague Electric Company in Worcester. He advanced rapidly and within four years began to travel on troubleshooting and "set up" missions for Sprague to Hong Kong, Korea, Mexico, the Philippines, and Taiwan. In 1974 he spent six months in the Philippines, where Sprague was consolidating some seventy percent of its overseas semiconductor assembly and packaging operations.

The Philippines task took on long term aspects and in May, 1975, Reiersen moved his wife and children there. Mrs. Reiersen, however, did not like living in the Philippines, and in 1977, expecting a baby, she returned to Worcester. There she and the children resumed residence at 14 Minthrone Street, a house which belonged to her aunt and which Reiersen bought in 1980 to have as a place for his wife and children and as an investment. Reiersen's responsibilities in the Philippines grew, and he flourished. He became the managing director of Sprague Philippines, Inc., an operation that employs from 750 to 1,200 persons and for which Reiersen has plenary executive responsibility.

About twice a year Reiersen comes to Worcester to deal personally (rather than by electronic means) with the Sprague central office and to visit with his family. The marriage between the Reiersens persists as a legal status out of respect for in-laws and religious feelings. Reiersen supports his wife and children. Otherwise, there is no conjugal relationship — sexual, spiritual, or societal. When he visits in Worcester, Reiersen stays at the house he owns with his wife, but they do not share a bedroom. Mrs. Reiersen's domicil is not in issue in the case; it is undoubtedly in Worcester. See note 2, supra. A wife who lives apart from her husband can acquire a separate domicil. Restatement (Second) of Conflict of Laws § 21 & comment d (1969).

In the Philippines, Reiersen rents a house (as a foreigner, he may not, under local law, own land), possesses a Philippines driver's license, owns an automobile, keeps a bank account, files tax returns, holds a Philippine residence certificate, belongs to social clubs, and maintains extensive business and social contacts. Reiersen expressed no ambivalence about where he chose to live and work. "I come from nothing, and I had it all there in the Philippines and I continue to have it all there, and I met — I have never had many friends here in Massachusetts, and I developed a lot of friends there, and I just love the country and I love its people." If not employed by Sprague, he nonetheless would consider his business and social opportunities to be in the Philippines Since moving to the Philippines, he has spent two weeks out of each year (i.e., less than four percent of the year) in the United States.

On the other side of the domicil ledger, Reiersen has not given up American citizenship (a minor factor, as domicil has no necessary connection with rights of citizenship, Rummel v. Peters, 314 Mass. 504, 513 1943), shows Worcester as his residence on an American passport (Reiersen testified he thought he was required to do so, but if he were mistaken on that score, would change it on the next renewal), maintains a Massachusetts driver's license, owns an interest in the Worcester house, and maintains a bank account in Massachusetts.

As we have indicated, the parties have enthusiastically debated whether the meaning of domicil is the same for all purposes. To illustrate: Is a person's domicil for purposes of State taxation (founded, presumably, on an obligation to pay for government services and protection)⁴ necessarily the same as that person's marital domicil (where the concern may be the welfare of the family unit)? The question has enlivened scholars, judges, and lawyers for the better part of the century.

Orthodoxy favors the unitary concept and counts among its adherents Mr. Justice Holmes who, in Williamson v. Osenton, 232 U.S. 619, 625 (1914), wrote:

"The very meaning of domicil is the technically pre-eminent headquarters that every person is compelled to have in order that certain rights and duties that have been attached to it by the law may be determined citation omitted.

In its nature it is one, and if in any case two are recognized for different purposes it is a doubtful anomaly."⁵

See to the same effect, and in chronological order, 1 Beale, Conflict of Laws § 9.4 (1935); Restatement (Second) of Conflict of Laws § 11 comment o (which, however, countenances the notion of "rare exceptions"); Elkins v. Moreno, 435 U.S. 647, 669 n. 29 (1978); Toll v. Moreno, 284 Md. 425, 442 (1979); Nagaraja v. Commissioner of Rev., 352 N.W.2d 373, 377 n. 8 (Minn. 1984).

The majority of jurisdictions, however, when they have been obliged to apply the term domicil, have decided that it displays varying hues as its application shifts. See Hayes v. Regents of Kentucky State Univ., 362 F. Supp. 1172, 1174-1175 (E.D. Ky. 1973); McDonald v. Hartford Trust Co., 104 Conn. 169, 177 (1926); Smith v. Croom, 7 Fla. 81, 150 (1857); In re Estate of Jones, 192 Iowa 78, 82 (1921); Worden v. Mercer County Bd. of Elections, 61 N.J. 325, 343 (1972); Gladwin v. Power, 21 A.D.2d 665 (N.Y. 1964); Reese, Does Domicil Bear a Single Meaning? 55 Colum.L.Rev. at 591-592; Weintraub, An Inquiry into the Utility of "Domicile" as a Concept in Conflicts Analysis, 63 Mich.L.Rev. 961, 984 (1965). See also Reese, The Second Restatement of Conflict of Laws Revisited, 34 Mercer L.Rev. 501, 518-519 (1983).

Massachusetts cases have not confronted the question between the unitary and the flexible approach to domicil, and it is possible to marshal cases for either proposition. One line of cases seems to assume that a person may have only one domicil;⁶ another posits that a person may have only one domicil for the same purposes,⁷ leaving the implication that one may have different domicils for different purposes. One suspects that the question has more doctrinal than practical significance. Courts are usually obliged to wrestle with only one domicil question at a time. In a close case, "decision of a question of domicil may sometimes depend upon the purpose for which the domicil concept is used in the particular case." Restatement (Second) of Conflict of Laws § 11 comment o.

So far as the case before us is concerned, the dichotomy in standards of domicil urged by the government need not, and does not, exist, i.e., domicil as defined in Hershkoff v. Registrars of Voters of Worcester, 366 Mass. at 576-577, is not different from domicil as defined in Commonwealth v. Davis, 284 Mass. at 50. The Davis opinion speaks of "the place of actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode" and of "the principal seat of his residence, of his business, pursuits, connexions, attachments, and of his political and municipal relations." Ibid. Compare the reference in Hershkoff, at 576, to "the center of his domestic, social and civil life." There is a difference in accent in the two cases as to what works a change in domicil....