Evening star., 1940-03-12
Text of Tax Decision
Federal EmpIoye Wins Against D. c.
In Fight Involving DomiciIe y

The text of the Court of Appeals
decision, holding James J. Sweeney,
a Federal employe working in
Washington and maintaining legal
residence in Massachusetts, is not
subject to the District Intangible
property tax, follows:
The question presented is whether
petitioner is subject to the tax on
intangible personally imposed by
Sections 754 and 756. Title 20, Dis
trict of Columbia Code.
The language of the sections fol-
lows:
"754 Exemption, ETC., from tax
alton of personal property; rate of
taxation The moneys and
credits, including moneys loaned
and invested, bonds and shares of
stock Except the stock of banks
and other corporations within the
District of Columbia the taxation
of which banks and corporations is
herein provided for) of any person,
firm, association or corporation resi-
dent or engaged in business within
said District shall be scheduled and
appraised in the manner provided
by section 753 of this title for list
ing and appraisal of tangible per-
sonal property and assessed at their
fair cash value, and as taxes on said
moneys and credits there shall be
paid to the tax collector of said
District not less than five-tenths of
! per centum of the value thereof.
Gully l, 1902, 80 Stat. 618, c. 1852, sec.
6, par. 2; Sept. l, 1916, 80 Stat. TIT, C.
433, sec. II; Mar. 3, 1917. 80 Stat.
1046, C, 100, sec. 9; June 20, 1922, AZ
Stat. 669, C. 249; July 3, 1926; A Stat.
1893, c. 759, sec. A."
"756. Resident of the District of
Columbia defined. Any person main
tanning place of abode in the Dis
trict of Columbia on the first day of
July of taxable year, and for the
three months prior thereto, shall be
considered as resident for the pur-
pose of assessment on Intangible
property wherever located, unless
evidence shall be submitted to the
assessor of the District of Columbia,
satisfactory to him, that such intan-
gible personal property or the in
come thereof is taxed to said person
in some other jurisdiction, or that
the assets of a corporation or asso-
citation represented by shares or GER
tificates constituting such Intangible
personal property, are taxed by the
State in which such corporation or
association is chartered or organized
and in which such person has a le-
gal residence, in lieu of tax upon
such shares or certificates: Provided,
that cabinet officers and persons in
the service of the United States
Government elected for definite
term of Office shall not be considered
as residents of the District of Co.
lumbla for the purposes of this Sec
ton. (July 3, 1926. A Stat. 1893, C.
759, sec. 2; Feb. 18, 1929, As Stat.
1927, C. 259, sec. ~"
Paid Assessments Under Protest.
He paid assessments for 1888 and
1889 under protest, claiming that
his domicile has been at all times
in Boston, Mass The Board of Tax
Appeals denied his claim for refund
holding that he was domiciled on
the taxable dates in the District.
1t also increased the assessments to
include taxes on funds and Securl-
ties, petitioners ownership of which
was disclosed only at the hearing,
and imposed penalties for nonpay-
ment of the increases when due.
This action is not contested except
as it also is involved in the question
of domicil. The appeal is from the
boards decision so rendered.
Petitioner was domiciled in Bos-
ton in 1918, when he first came to
the District as a member of the
military service of the United
States. Since his discharge here in
1919 he has resided continuously
in the District. He married in 1924,
and since 1888 he and his wife have
maintained their only domestic es-
tablishment in a rented apartment
which respondent contends is their
legal domicil. He has been en-
ployed continuously by the Federal
Government, as civil service en-
ploye until 1928, since then as an
attorney in the Department of JUS
tice under appointments some of
which were limited in duration. He
has at all times by word and act
steadfastly maintained that his per-
manent home, legal residence and
domicil are in Boston, and has de-
clared repeatedly his intention to
return on expiration of his public
service here, with view to run
ming for public office or seeking
judicial appointment in his home
State. He asserts that he has re-
sided here at all times only tempo
rarily in order to discharge his
governmental duties, always with
the intention of returning home on
their completion and never with
that of living permanently in the
District or making it other than
a place of sojourn or temporary
abode as required by his duties.
Vii VIC OlIlcl lldllQ, lCSkOIlOCllt
says that petitioners long continued
residence in Washington has ripened
into domiciliary change; that his
home, principal headquarters and
only domestic establishment are
here; that he has no other in
Massachusetts, or elsewhere; that
his motive in remaining here to
take and perform work is imma-
terlal, as are the facts that it is
governmental and that the situs of
performance is the National Capital.
1t is urged that his subjective in
tention to retain his legal domicil
in Massachusetts, cannot overcome
these facts and amounts to no more
than floating intention to return
to his former place of abode at some
future period" which will not de-
feat the newly acquired residence
or the rights and obligations which
attach to it." 1t is said also that
the board has found as fact that
petitioners domicil was in the Dis
trict on the taxable dates, and that