Swent v. Commissioner

2 T.C.M. 1186, 1943 Tax Ct. Memo LEXIS 9

• Court: United States Tax Court
• Decided: December 30, 1943
• Docket: Docket No. 1194.
• Status: Unpublished

Opinion

J. W. Swent and Ursula L. Swent, Husband and Wife v. Commissioner.

Swent v. Commissioner

Docket No. 1194.

United States Tax Court

1943 Tax Ct. Memo LEXIS 9; 2 T.C.M. (CCH) 1186; T.C.M. (RIA) 43529;

December 30, 1943

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Nathan Moran, Esq., for the petitioners. H. R. Horrow, Esq., for the respondent.

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ARUNDELL

Memorandum Opinion

ARUNDELL, Judge: The Commissioner has determined a deficiency in income tax of $3,788.46 for the taxable year 1938. The facts have all been agreed to by the parties and a single question of law is submitted for our decision. That question is whether or not petitioners are entitled to the exclusion from their gross income of the amount of $27,000 received by petitioner J. W. Swent as compensation for services rendered in the Republic of Mexico. The petitioner was out of the United States and in Mexico 216 days during the year 1938 and present in the United States 149 days. Petitioner's wife Ursula was in Mexico a total of 185 days during the year 1938 and in the United States 180 days. The specific periods are shown in the following tables:

J. W. Swent	No. of
In Mexico	Days
Jan. 1 to Feb. 16	47
Mar. 30 to June 15	78
Aug. 18 to Sept. 7	20
Oct. 22 to Dec. 31	71
Days in Mexico	216

Ursula L. Swent	No. of
In Mexico	Days
Jan. 1 to Feb. 16	47
Mar. 30 to June 15	78
Nov. 2 to Dec. 31	60
Days in Mexico	185
	No. of
In the United States	Days
Feb. 17 to March 29	41
June 16 to Aug. 17	64
Sept. 8 to Oct. 21	44
Days in the United States	149
	No. of
In the United States	Days
Feb. 17 to March 29	41
June 16 to Nov. 1	139
Days in the United States	180

The Commissioner stands upon the proposition that the exclusion provision of section 116(a) is applicable only when the six months' period of nonresident is made up of six calendar months. This proposition was fully considered in Michel J. A. Bertin, 1 T.C. 355, and rejected. For the reasons set forth in the Bertin case the determination of the Commissioner is reversed.

Decision will be entered under Rule 50.