Evening star., 1940-03-12

QraWn' as 10 peClLlOnerS lntent. Inc
difference is not as to what he in
tended in fact, but as to whether
that intent can be given the legal
effect which he claims for 1t. The
boards decision, therefore, Is re-
viewable.
The tax-imposing provision Is Sec
ton 754. 1t lays the tax upon "the
moneys and credits of any
person resident or engaged in busi-
ness within said District ="
Section 756 specifically defines resi-
dent" for purposes Of the assessment
and creates exemptions. The statute
carefully avoids using "domicil." But
clearly it applies to persons domi-
ciled in the District. Section 754
was the general, not special, taxing
act as to Intangible property. The
term it uses is resident" Without
more, its normal and usual meaning
is "domiciled." That is true as to
both inclusive and exclusive func-
ton. The section. therefore, un-
aided by Section 756, would tax DOM
iciliaries and no others.
AS the case has been presented
to us, we are not required to deter
mine whether section 756 was in
tended to extend the tax to others
than those already taxed by Sec
ton 754. Respondent, for it's own
purposes (cf. note 20 infra) has con-
ceded that the assessments were
invalid If rotif;oror ,,oe Mt loo,
iciled in the District on the taxable
dates. Nor is the case rested upon
the special definition contained in
section 756 as having either pre-
sumptive or conclusive effect in
determining domicil. As presented,
therefore, the issue is one of gen.
eral, not special, domicil.
Takes Two Forms.
So considered, we think petit
tloner's domicil has remained in
Massachusetts. 1t was there IN
1918 and concededly for some period
after his removal to Washington
Respondent fixes upon no specific
date for later shift, but asserts
merely that it occurred some time
prior to 1898.
Traditional formula requires con-
junction of physical presence and
animus manendi in the new location
to bring about domiciliary change.
There is no question here concerning
the fOrmer-conf1ict is confined to
the element OF intent. AS presented
it takes two forms: Cd whether,
disregarding the nature of petition
er's work and its situs, a sufficient
intention is shown by the facts; ~
whether the character of his duties
and the situs of performance make
the case different from one OF pri-
vate employment here or elsewhere
Respondent asserts that Federal
employment in the District is not
different, for purposes of deteImin-
ing domicil, from any other and
therefore that that element IN the
case is immaterial except as 1t may
bear factually upon the existence of
domiciliary intention just as private
employment under like circum-
stances would do 1t is claimed also
that, so considered. the facts estab-
lish the domiciliary change. Petit
toner takes the contrary position on
both contentious.
In the view we take of the case,
we do not undertake to determine
whether petitioner would be domi-
ciled here if he had come or had
remained in order to accept private
employment or engage in private
business. Boiled down to its essence,
the question here is whether a citi-
zen .and resident of a State must
surrender his State allegiance toB
all the purposes in which domicil
may be controlling when he accepts
Federal employment in the District
of indefinite or relatively permanent
duration. The question is not
whether he may do so if he wishes.
To hold that he must would create
startling consequences, including
unjust and untenable, not to say in
tolerable, Determinations.
Change of Domiciliation.
Some of them may be shown by IL
Illustrations stated in the briefs or at
the argument. Military and naval
men, it was conceded. would retain
domicil in the State of residence at
the tirle of appointment. This. re-
gardless of length of absence from
and lack of a domestic habitatior
in the State, presence Of one here
or length of residence in the Dis
trict. AS to them the presumption
of continuity remains in full force.
Likewise with elected officials, the
President, the Vice President, and
normally, members of Congress. So
also with cabinet officers and per-
sons holding only short-term or
temporary appointments in exec
utive, administrative and congress
sional services. These it is said,
either by reason of their limited
tenure and consequent assumed
brevity of service or, in the mill
tary branches, because of it's as
sumed compulsory character and re-
gardless of its permanence, occupy
special and preferred status which
prevents applying to them criteria
normally applicable to all others
In contrast with them, it is said,
are members of the Supreme Court
and other distinctively Federal
courts sitting in the District, men,
bers of administrative tribunals en-
joying long, though not unlimited
tenure, civil service employees, and
all others whose tenure is indefinite
or is not limited to a short term.
AS to these the argument is car
ried to the full length of the logic
implicit in the premises 1t is that
upon appointment and establish
ment of a place of abode in the
District, whether it be their only
or merely their principal one, with
intention to remain indefinitely for
the discharge of their duties and
only so-called floating" intention
to return on their completion, they
lose domiciliation in the State and
become dOmiciled forthwith in the