Arbaugh v. District of Columbia

176 F.2d 28, 85 U.S. App. D.C. 97, 1949 U.S. App. LEXIS 2996

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 23, 1949
• Docket: No. 9913
• Status: Published

Opinions

PRETTYMAN, Circuit Judge.

This is a petition to review a decision of the Board of Tax Appeals for the District of Columbia. The question is whether the petitioner was or was not domiciled in the District of Columbia for income tax purposes on the last days of the taxable years 1945 and 1946.¹

Petitioner came to the District of Columbia from Indiana in 1936 to take a position in the Federal Government employ. She has been so employed ever since. The Board of Tax Appeals found:

“At the time she left Indiana and came to the District of Columbia she did not have any intention to abandon 'her domicile or legal residence in Indiana, and since that time she has not had suoh intention or the intention to acquire a domicile or legal residence in the District of Columbia.”

The Board also found:

“Petitioner has not at all times since coming to the District of Columbia in 1936 intended to return to Indiana and resume her former home there * *

These findings were premised quite carefully and precisely upon the testimony. Seemingly contradictory upon first impression, the findings are in fact descriptive of the state of mind of petitioner, and probably also of vast numbers of other people. She simply had no definite and fixed intention either to go back to Indiana or to stay in the District of Columbia. She testified: “I have no expectations to go anywhere. I have no expectations, further, to stay here. I have no expectations of any kind.” And again she said: “I have not had any intention of going anywhere, any more than I have had any intention of staying in the District.”

We agree with the Board that the answer to the problem is to be found in District of Columbia v. Murphy.² The Court there said, 314 U.S. at page 454, 62 S.Ct. 303, at page 309, 86 L.Ed. 329:

“ * * * we hold that persons are domiciled here who live here and have no fixed and definite intent to return and make their homes where they were formerly domiciled.”

The Court made perfectly clear its meaning by repeating the rule in the following language, 314 U.S. at page 456, 62 S.Ct. at page 310:

“In order to retain his former domicile, one who comes to the District to enter Government service must always have a fixed and definite intent to return and take up his home there when separated from the service."

The principle thus laid down by the Supreme Court may or may not be in conflict with the general idea that one does not lose a domicile until he has a fixed intent to establish another one.³ However that may be, it seems perfectly clear that the Court held that for District of Columbia income tax purposes a person in Government employ here does not retain his former domicile unless he has a -fixed and definite intent to return to it. The effect of this rule is that a person without any intent one way or the other is domiciled here if he lives here. This petitioner testified: “My home is where I am.”

The decision of the Board of Tax Appeals is, therefore,

Affirmed.

1 53 Stat. 1087 (1939), as amended, D.C.Codo § 47 — 1502 (1940).

2 1941, 314 U.S. 441, 62 S.Ct. 303, 80 L.Ed. 329.

3 28 C.J.S., Domicile. § 13a.