OPINION.
Murdock, Judge:
The issue here is whether Joyce was entitled to file a joint return with her husband for the calendar year 1951, and section 51 (b) (2) of the Internal Revenue Code of 1939 makes that depend on whether or not the husband was a nonresident alien during all of the taxable year. The meanings of the words “nonresident” and “resident” depend to some extent upon the context in which they are used and, if in a statute, upon the purpose of the legislation. It is clear from the legislative history of section 51(b) (2) that Congress intended that no joint return should be filed unless both spouses had been residents of the United States for the entire tax year, but otherwise that history is not helpful. The best aids in determining the meaning of the word “nonresident” as used in section 51(b)(2) seem to be found in the Commissioner’s Regulations and in the generally understood meaning of the word as found in standard dictionaries.
The Commissioner, in Regulations 111, section 29.211-2, has published a definition of “nonresident alien” as used in section 51(b) (2). The Regulation refers to “an alien actually present in the United States” and the permanence or lack of permanence of his stay. The section concludes with the following sentence: “An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.” An identical sentence has been in the Regulations since 1934. John Henry Chapman, 9 T.C. 619, 621. At all times that Jacques, an alien, was present in the United States during 1949,1950, and the first 7 months of 1951, his stay in the United States was limited to a definite period by the immigration laws since the visas he had during that period limited his stay, first to 12 months and later to 24 months. The only circumstance explaining the fact that he was here on visas which limited his stay to a definite period was tliat lie never took the trouble to apply for a permanent visa. That could not be regarded as an exceptional circumstance. Cases involving an alien who could not obtain or who had adequate reason for not obtaining a permanent visa indicate what circumstances have been regarded as exceptional under this Regulation. D. L. Philippe, 26 T.C. 984; Marsman v. Commissioner, 205 F. 2d 335, affirming a Memorandum Opinion of this Court dated Feb. 21, 1950; Cristina de Bourbon Patino, 13 T.C. 816, affd. (C.A. 4) 186 F. 2d 962. Jacques was asked, “[W]hy didn’t you apply for a permanent visa before that time [March 1951] ?” And he answered, “I didn’t give much thought to it because I always considered as a resident in the United States. I never thought of difference in visas.” His other testimony indicates clearly, however, that he well knew the difference between a visa for a limited period and a permanent visa since he stated that each time he applied for a temporary visa he did not want to take the additional time which would have been necessary to obtain a permanent visa. The record shows that Jacques was never employed after he left Argentina in April 1949, and it was not for lack of available time or because of any exceptional circumstance that he did not apply for a permanent visa earlier. It was apparently due to indifference. Thus, it appears that there was an “absence of any exceptional circumstances” to account for the fact that his stay in the United States as an alien was limited to a definite period by the immigration laws, and the Commissioner’s determination that he was a nonresident alien is supported by the Commissioner’s Regulations and the facts in the case.
That determination is also supported by the facts in this case when considered with the usual meaning of “resident” and related words as given in current dictionaries. The noun “resident” is defined in Webster’s New International Dictionary, Second Edition, Unabridged, G. & C. Merriam Company, 1950, as “One who resides in a place; one who dwells in a place for a period of more or less duration. Resident usually implies more or less permanence of abode.” The adjective is defined in the same dictionary as “Dwelling, or having an abode, for a continued length of time; residing, as on one’s own estate.” The same authority defines “reside” “1. To settle oneself * * * in a place; * * * to remain or stay; * * * 2. To dwell permanently or continuously; to have a settled abode for a time.” The definition of the noun “residence” includes the following: “Act or fact of abiding or dwelling in a place for some time; act of making one’s home in a place.”
Counsel for the petitioner criticizes his adversary’s failure to name a place outside the United States of which Jacques was a resident at any time material hereto. He thus misconceives what the question is
and wliat is and who has the burden of proof. D. L. Philippe, supra, at 989. The question is: Was J acques a resident of the United States during all of 1951? The petitioner has the burden of proof to show that he was. Counsel for the petitioner does not name any place in the United States where Jacques ever established any residence, if he deemed that necessary, but relies upon a general sort of understanding which J oyce and J acques had at the time they were married that his future home, their future home, would be in the United States but they did not then decide where in the United States. It is obvious from the above definitions that a nonresident alien cannot establish a residence in the United States by intent alone since there must be an act or fact of being present, of dwelling, of making one’s home in the United States for some time in order to become a resident of the United States. Some permanence of living within borders is necessary to establish residence. Cases involving the question of whether and under what circumstances a person with an established residence in a place ceases to be a resident of that place because of absence are not in point.
J acques’ purpose in coming to the United States was to marry Joyce and, as soon as that was accomplished, he left the United States and did not return for almost 2 years, except for 3 brief visits for purposes other than to establish residence. It might be argued that his residence would merge with Joyce’s at some place in the United States under some circumstances, but such a contention would not be supported by the facts in this case. The couple left J oyce’s home immediately after their marriage never to return for more than 2 years that we know of and with hot only no intention to return to Houston for homemaking purposes but with mutual intention not to make their future home there.
J acques never in any way made himself a resident of any community in the United States, as for example, by obtaining living quarters in or employment in or near any such community, by attending or joining any church or community activities, by applying for membership in any club or community group, or by indicating in any way his residence there, as might be helpful in proving residence.
He never had any dwelling of any kind in the United States which he ever intended to make his residence. He arrived first in Houston, Texas, after leaving Argentina. The record does not show how long he stayed there or where he had his living quarters while he was there, but it is clear that he never established any residence there and he never even intended to reside there.
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OPINION.
Murdock, Judge:
The issue here is whether Joyce was entitled to file a joint return with her husband for the calendar year 1951, and section 51 (b) (2) of the Internal Revenue Code of 1939 makes that depend on whether or not the husband was a nonresident alien during all of the taxable year. The meanings of the words “nonresident” and “resident” depend to some extent upon the context in which they are used and, if in a statute, upon the purpose of the legislation. It is clear from the legislative history of section 51(b) (2) that Congress intended that no joint return should be filed unless both spouses had been residents of the United States for the entire tax year, but otherwise that history is not helpful. The best aids in determining the meaning of the word “nonresident” as used in section 51(b)(2) seem to be found in the Commissioner’s Regulations and in the generally understood meaning of the word as found in standard dictionaries.
The Commissioner, in Regulations 111, section 29.211-2, has published a definition of “nonresident alien” as used in section 51(b) (2). The Regulation refers to “an alien actually present in the United States” and the permanence or lack of permanence of his stay. The section concludes with the following sentence: “An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances.” An identical sentence has been in the Regulations since 1934. John Henry Chapman, 9 T.C. 619, 621. At all times that Jacques, an alien, was present in the United States during 1949,1950, and the first 7 months of 1951, his stay in the United States was limited to a definite period by the immigration laws since the visas he had during that period limited his stay, first to 12 months and later to 24 months. The only circumstance explaining the fact that he was here on visas which limited his stay to a definite period was tliat lie never took the trouble to apply for a permanent visa. That could not be regarded as an exceptional circumstance. Cases involving an alien who could not obtain or who had adequate reason for not obtaining a permanent visa indicate what circumstances have been regarded as exceptional under this Regulation. D. L. Philippe, 26 T.C. 984; Marsman v. Commissioner, 205 F. 2d 335, affirming a Memorandum Opinion of this Court dated Feb. 21, 1950; Cristina de Bourbon Patino, 13 T.C. 816, affd. (C.A. 4) 186 F. 2d 962. Jacques was asked, “[W]hy didn’t you apply for a permanent visa before that time [March 1951] ?” And he answered, “I didn’t give much thought to it because I always considered as a resident in the United States. I never thought of difference in visas.” His other testimony indicates clearly, however, that he well knew the difference between a visa for a limited period and a permanent visa since he stated that each time he applied for a temporary visa he did not want to take the additional time which would have been necessary to obtain a permanent visa. The record shows that Jacques was never employed after he left Argentina in April 1949, and it was not for lack of available time or because of any exceptional circumstance that he did not apply for a permanent visa earlier. It was apparently due to indifference. Thus, it appears that there was an “absence of any exceptional circumstances” to account for the fact that his stay in the United States as an alien was limited to a definite period by the immigration laws, and the Commissioner’s determination that he was a nonresident alien is supported by the Commissioner’s Regulations and the facts in the case.
That determination is also supported by the facts in this case when considered with the usual meaning of “resident” and related words as given in current dictionaries. The noun “resident” is defined in Webster’s New International Dictionary, Second Edition, Unabridged, G. & C. Merriam Company, 1950, as “One who resides in a place; one who dwells in a place for a period of more or less duration. Resident usually implies more or less permanence of abode.” The adjective is defined in the same dictionary as “Dwelling, or having an abode, for a continued length of time; residing, as on one’s own estate.” The same authority defines “reside” “1. To settle oneself * * * in a place; * * * to remain or stay; * * * 2. To dwell permanently or continuously; to have a settled abode for a time.” The definition of the noun “residence” includes the following: “Act or fact of abiding or dwelling in a place for some time; act of making one’s home in a place.”
Counsel for the petitioner criticizes his adversary’s failure to name a place outside the United States of which Jacques was a resident at any time material hereto. He thus misconceives what the question is
and wliat is and who has the burden of proof. D. L. Philippe, supra, at 989. The question is: Was J acques a resident of the United States during all of 1951? The petitioner has the burden of proof to show that he was. Counsel for the petitioner does not name any place in the United States where Jacques ever established any residence, if he deemed that necessary, but relies upon a general sort of understanding which J oyce and J acques had at the time they were married that his future home, their future home, would be in the United States but they did not then decide where in the United States. It is obvious from the above definitions that a nonresident alien cannot establish a residence in the United States by intent alone since there must be an act or fact of being present, of dwelling, of making one’s home in the United States for some time in order to become a resident of the United States. Some permanence of living within borders is necessary to establish residence. Cases involving the question of whether and under what circumstances a person with an established residence in a place ceases to be a resident of that place because of absence are not in point.
J acques’ purpose in coming to the United States was to marry Joyce and, as soon as that was accomplished, he left the United States and did not return for almost 2 years, except for 3 brief visits for purposes other than to establish residence. It might be argued that his residence would merge with Joyce’s at some place in the United States under some circumstances, but such a contention would not be supported by the facts in this case. The couple left J oyce’s home immediately after their marriage never to return for more than 2 years that we know of and with hot only no intention to return to Houston for homemaking purposes but with mutual intention not to make their future home there.
J acques never in any way made himself a resident of any community in the United States, as for example, by obtaining living quarters in or employment in or near any such community, by attending or joining any church or community activities, by applying for membership in any club or community group, or by indicating in any way his residence there, as might be helpful in proving residence.
He never had any dwelling of any kind in the United States which he ever intended to make his residence. He arrived first in Houston, Texas, after leaving Argentina. The record does not show how long he stayed there or where he had his living quarters while he was there, but it is clear that he never established any residence there and he never even intended to reside there. The testimony of both Jacques and Joyce shows that they had no intention of living with or near J oyce’s parents in Houston, Texas. Joyce, being questioned with relation to their stay in Cuba and any obligation to come back to the United States said, “I was very happy to be independent, and I had just gotten away from my family and I said, well, it might be better to be in Cuba. If I am here [in the United States] my mother will come poking in and see what is happening.” Jacques testified, “We like better to live in New York than in Houston, certainly.”
Jacques made a temporary visit to New York prior to his marriage, but he had no intention of remaining there, except to make at least a pretense of hunting for a job. He next went to Cuba and then returned to the United States, but where he stayed when he returned is not shown by the record. He was married in Houston on October 1, 1949. It seems clear that, as a single man, he never established any residence in the United States in anticipation of marriage or otherwise, never had any living quarters except those of a very temporary nature and did not become a resident of the United States within the usual meaning of that word as given in dictionary definitions.
Immediately after the wedding he and Joyce left Houston on their way to Cuba where they arrived a few days later. Neither of them was present in the United States at any time during the remainder of 1949. They rented a furnished apartment in Havana which they continued to occupy until April 14, 1950. They spent all of their time during 1950 outside of the United States, except for 2 weeks in New York visiting friends preliminary to their sailing for Europe. They did not enter the United States again until March 1951, when they came to Miami for about 2 weeks to buy a yacht. They had been occupying a rented house in Havana and they continued to occupy that house until about August 6, 1951. Meanwhile, however, they made another brief trip of about 3 weeks to Miami to take possession of the yacht and returned in it to Havana.
Jacques at all times from April 29, 1949, when he first arrived in the United States, until August 1, 1950, held a visa good for only a limited stay, and his stays during that time were for extremely limited periods. It was not until after August 6, 1951, that he was ever present in the United States on a permanent visa. He and Joyce left Cuba on August 6, 1951, and proceeded on the yacht to the vicinity of New York City where the yacht remained docked and they lived on it, for 6 or 7 months. It is not necessary for the purpose of this case to decide whether or not Jacques then became a resident of the United States because after the beginning of 1951 it was too late since the Code provides that no joint return shall be made if either the husband or the wife at any time during the taxable year is a nonresident alien.
Reviewed by the Court.
Decision will be entered for the respondent.