Semple v. Commonwealth

• Decision Date: 22 October 1918
• Citation: Semple v. Commonwealth, 181 Ky. 675, 205 S.W. 789 (Ky. Ct. App. 1918)
• Parties: SEMPLE v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

205 S.W. 789

181 Ky. 675

SEMPLE v. COMMONWEALTH.

Court of Appeals of Kentucky.

October 22, 1918

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.

Action by the Commonwealth of Kentucky, by one of its revenue agents, against W. C. Semple. Judgment for the Commonwealth in county court, and defendant appealed to circuit court from whose judgment defendant appeals, and the Commonwealth prosecutes cross-appeal. Reversed on appeal, and affirmed on cross-appeal.

Bruce &amp Bullitt and Keith L. Bullitt, all of Louisville, for appellant.

Matt J Holt, of Louisville, for the Commonwealth.

THOMAS J.

The principal question in this case, upon the correct solution of which depends the disposition of this appeal, is whether on September 1, 1913, and September 1, 1914, the appellant, W. C. Semple, was a legal resident of Jefferson county, Ky. or was he at those times, as he contends, domiciled in and a legal resident of the state of Texas. It arises in this way:

A revenue agent of the state attempted, under the provisions of section 4260 of the Kentucky Statutes, in the county court of Jefferson county, to have assessed as omitted property certain enumerated articles of personal property, both tangible and intangible, claiming that the appellant was the owner of it upon the dates mentioned, and that at those times he was a resident of Jefferson county. A denial by appellant of all the material facts alleged in the statement filed by the revenue agent formed the issues, and upon trial in the county court the property was assessed as contended by the commonwealth through its revenue agent. An appeal was prosecuted to the Jefferson circuit court, and a trial there resulted in a similar judgment, but excluded from assessment certain stock owned by the appellant in a corporation which the circuit court decided was assessed and the taxes paid by that corporation. From that judgment the appellant prosecutes this appeal, and the commonwealth prosecutes a cross-appeal, seeking to correct what it claims was error on the part of the lower court in declining to assess the corporate stock.

The facts disclosed by the record upon the issue of appellant's residence are that he is a man without a family or any one dependent upon him; that prior to 1909 he had from infancy resided with his parents in the city of Minneapolis, Minn. During that year, his parents both being dead, he purchased a farm, consisting of two large tracts of land, near Mercedes, Tex., and moved upon the farm into a house located thereon, with the intention of making it his permanent home. From that time on he cultivated and managed the farm, doing some of the work himself, and having others to assist him either as hired hands or tenants. One of the latter resided with him and looked after the household affairs, as well as the premises generally, when appellant would be away. Up until 1913 appellant spent most of his time upon his farm, except during extremely hot weather, when he would visit his old home, or some other more comfortable climate. He would sometimes spend a portion of the winter in Florida.

In July, 1913, appellant made a visit to his uncle, a Mr. Culbertson, in the city of Louisville, and remained as a guest of the latter until some time in September, 1913, when he leased an apartment in the city, which he furnished with household goods shipped from Minneapolis, and which, when in Louisville, he thereafter occupied. Before leasing the apartment, he began negotiations for the purchase of a controlling amount of stock in the Torbitt & Castleman Company, a corporation doing business in the city of Louisville, which, under the advice of his uncle, appellant had concluded would be a profitable investment. Directly thereafter the purchase of stock was made and appellant was elected vice president and secretary of the corporation, but with no official duties to perform, and none of which he did. It is shown without contradiction that this investment was made for speculative purposes only, and not with any intention that it should be a permanent holding, and it was made largely upon the advice of appellant's uncle. After appellant had been made an officer of the corporation, and about November 1, 1913, he returned to his home in Texas, where he remained until about December 20th of that year, when he came to Louisville to spend the Christmas holidays. About the middle of January, 1914, he again returned to his Texas home, staying there on this occasion until about May 1st following, when he came back to Louisville to attend the Derby races. After the races were over he visited in the South, returning to Louisville for a short while, and just prior to September 1, 1914, he visited in New York, and on that date was not in Kentucky, but in the latter city. His movements after that time are not so pertinent to the issues involved in this case, but as a matter of fact it is shown that upon his return from New York he remained a short while in Louisville, from whence he again returned to his Texas farm. From that time until the trial of the case he visited alternately between his Texas home and St. Louis, Louisville, and other places, at his pleasure.

When appellant rented his first apartment, he could not procure it for a shorter period of time than one year, and, according to his testimony, not knowing how long he would hold the stock which he had purchased, and desiring to have a suitable place to spend his time when in Louisville, he agreed to and did contract for the apartment for the whole year, which extended beyond September 1, 1914. After that, being dissatisfied with the apartment which he had, he engaged another at the Weissinger-Gaulbert for a similar period of time and for the same reason. Neither of the apartments was occupied by appellant more than one-third or one-fourth of the time throughout his tenancy. He paid poll tax in the state of Texas from the time he purchased his farm there, and reported and paid income tax in that state to the federal government. He has never voted anywhere, and from some cause not explained in the record he has not paid taxes on personal property in the state of Texas. It is shown by a witness testifying for appellant that the latter took a prominent part in the social and civic affairs of the town of Mercedes and the community in which he lived, and was universally regarded as a citizen of that place.

When appellant came to Louisville on his first visit, be brought an automobile with him, which he used for pleasure, and afterward sold it and purchased another in the city of Louisville. These luxuries he also took with him to other places he would visit. He had a deposit account with the Fidelity & Columbia Trust Company, but none of this was used or intended to be used in any business local to the county of Jefferson, but only for personal expenses. The question then is: Under these facts, and viewed in the light of the law upon the subject, where was appellant's residence?

It seems to be quite universally the rule that the true location of one's domicile or legal residence for the purpose of taxation is a question of both fact and intention; i. e., the facts, as exhibited by conduct, and the expressed intention must coincide in determining one's place of residence. Neither can have an exclusively controlling effect. If one's acts and conduct conclusively show his residence to be in one place, his intention that it shall be in another place may not override the facts, so as to locate his residence elsewhere. Such an intention is a mere floating one, and is not decisive of the question. Baker...