Evening star., 1940-03-11


committee on Fiscal Affairs of
the House District Committee de-
clared this afternoon that if the
Court of Appeals decision re-
garding the personal property tax
Is broad enough to have the same
application to the local income
tax, then it is certainly evident
the income tax will have to be
repealed"
A decision that may figure i'm
portantly in the collection of the
District income tax was handed
down today by the United States
Court Of Appeals for the District of
Columbia. The decision held that
Federal employe on duty here
was entitled to claim domicile in
Boston and therefore to be exempt
from the personal property tax.
Some observers Immediately took
the position that if this rule applied
to the property levey it would hold
with equal force to that on income.
The Court of Appeals decision vir.
tually upholds the avowed intention
OF the State of Massachusetts to re-
sist, in the courts if necessary, the
attempts of the District of Columbia
to tax inhabitants" of Massachu-
sets.
The Bay State officially has gone
on record in defense of Federal
workers here who are domiciled in
Massachusetts,, through a statement
by Henry F. Long, commissioner Of
Corporations and taxation.
Paid Under Protest.
The Appellate Court decision,
which reversed the finding of the
Board of Tax Appeals, was rendered
in the case of James j. Sweeney. a
Justice Department attorney, who
had paid under protest assessments
OF 88 cents on intangible personality
for 1888 and 1899, contending that
although he was employed here. his
| domicile was at all times in Boston.
He had sought refund which the
board denied.
"One who comes to the District
and remains to render service to
| the Government which requires his
presence here may retain his domi-
cile in the State from which he
comes until the service terminates,
unless he gives clear evidence of his
intention to forego his State allie
glance" said the Appeals Court de-
cision, written by Associate Justice
Wiley Rutledge.
Held Supported by Policy.
This conclusion, we think, is sup
ported by sound policy, the clear
weight Of judicial authority, many
instances of congressional recogni.
ton in principle and the long,
established custom and practice Of
other officials and departments.
Whether the principle is stated
in terms of a presumption of con-
tinuity of State domiciliation during
the Federal employment, or of priv.
ilege derived from the dual form OF
government, is perhaps matter
OF more theoretical than practical
consequence. The privilege, Of
course, could be waived. The pre-
sumption would require strong evi.
dence to overcome it. In either
case the State domicile could not
be overthrown by mere proof of
long residence during performance
or ambiguous showing of intention
of change.
"The considerations which have
been held controlling require that
evidence of intention to change be
clear and unequivocal, whether its
effect be waiver of privilege or to
| overcome presumption. The evi-
dence here was not unequivocal.
Except for the payment of taxes on
his Intangible personality (the rec
ord does not show that Massachu.
sets taxes it except as to income),
petitioner has done all that any one
could do, circumstanced as he has
been. to maintain his State domi-
ciliation. 1t follows that he was
not domiciled in the District on the
taxable dates and that the taxes
assessed against him as domicilary
were invalid.
Decision Is Limited.
ave have limited the decision to
the issue of domicile as it has been
presented. In doing so. we express
no opinion as to other issues which
might have been, but were not pre-
sented, including the questions
whether section 756 should be con-
| strued as intended to impose the
tax upon persons not domiciled here,
but situated as was petitioner and
whether if so, it would be valid.
Whether. in view of the more
recent Supreme Court decisions, in
order to prevent the District from
being made a tax-dodging refuge
by Federal employees domiciled else
where, Congress could impose taxes
upon them here conditioned upon
their failure to pay like taxes in the
States. or might do so to some ex-
tent upon theory of commercial or
business domicile, we are not re-
quired to determine.
Federal legislation in aid of State
policy is not new, though it is q
recently expanded, phenomenon.
But these questions have not been
briefed or argued. We think they
should not be decided without ma
ture deliberation on full and ade.
Quate presentation. Their impor-
tance and the doubtful character of
the consequences, in addition to the
lack of aid from counsel, require us
to dispose of the case on the basis
upon which it was presented. We
(See TAX. Page A.Ih