Whitehouse v. Commissioner
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Bluebook
Whitehouse v. Commissioner, (1st Cir. 1992).
Opinion
USCA1 Opinion
July 7, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 91-2282
JOHN H. WHITEHOUSE AND
CAROL A. WHITEHOUSE,
Petitioners, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent, Appellee.
____________________
ERRATA SHEET
The opinion of this Court issued on April 29, 1992, is
amended as follows:
On page 5, Line 4 delete "at 7" and insert "3,7 (1st Cir.
1986)".
April 29, 1992
___________________
No. 91-2282
JOHN H. WHITEHOUSE AND
CAROL A. WHITEHOUSE,
Petitioners, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent, Appellee.
__________________
APPEAL FROM THE UNITED STATES TAX COURT
[Hon. Herbert L. Chabot, U.S. Tax Court Judge]
____________________
___________________
Before
Breyer, Chief Judge,
___________
Selya and Cyr, Circuit Judges.
______________
___________________
Izen & Associates, P.C. and Joe Alfred Izen, Jr., on
________________________ _____________________
appellant's Response to Motion to Transfer.
James A. Bruton, Acting Assistant Attorney General, Gary R.
_______________ _______
Allen, Gilbert S. Rothenberg and Doris D. Coles, Attorneys, Tax
_____ _____________________ ______________
Division, Department of Justice, on Memorandum in Support of
Motion to Transfer.
__________________
__________________
Per Curiam. This appeal springs from a decision of the
___________
Tax Court. The government, contending that venue properly
lies in the Second Circuit, has moved to transfer.
Venue over appeals from decisions of the Tax Court is
governed by 26 U.S.C. 7482(b). In "the case of a
petitioner . . . other than a corporation," venue lies in the
circuit in which the petitioner's "legal residence" is
located. 26 U.S.C. 7482(b)(1)(A). Thus, the essential
question is: where do the Whitehouses "reside?"
According to the petition that the Whitehouses filed in
the Tax Court, their legal residence is in West Suffield,
Connecticut -- which of course lies in the Second Circuit.
That would end the matter, except that, in opposing the
government's motion to transfer, the Whitehouses submitted an
affidavit in which Mrs. Whitehouse swore that although she
and her husband "did reside at an address in West Suffield,
Connecticut, the boundary line between Connecticut and
Massachusetts ran through our front yard." The Whitehouses
argue that this means they "resided partly within the State
of Connecticut and partly within the State of Massachusetts,"
and, we take it, that venue was therefore proper in the First
Circuit as well as the Second Circuit.
We disagree. For purposes of determining venue under
section 7482, the term "legal residence" means "domicile."
Brewin v. Commissioner of Internal Revenue, 72 T.C. 1055
______ __________________________________
-3-
(1979), rev'd on other grounds, 639 F.2d 805 (D.C.Cir. 1981).
______________________
A person can have only one domicile at a time. General
_______
Electric Co. v. Cugini, 640 F.Supp. 113, 115 (D.P.R. 1986).
____________ ______
See also Shafer v. Children's Hospital Society, 265 F.2d 107,
________ ______ ___________________________
120-21 (D.C.Cir. 1959); Hardin v. McAvoy, 216 F.2d 399, 403
______ ______
(5th Cir. 1954); Syme v. Rowton, 555 F.Supp. 33, 36 (D.Mont.
____ ______
1982). The Whitehouses' "legal residence" for venue purposes
is either in Massachusetts or in Connecticut; it cannot be in
both states.
Although the one-domicile rule ordinarily finds
expression in cases where the person has two or more
residences, it has also been applied to cases where the
person has one residence that lies in two jurisdictions. For
example, in Blaine v. Murphy, 265 F. 324, 325 (D.Mass. 1920),
______ ______
the defendants in a diversity-jurisdiction case lived at the
State Line Hotel, on the border of Massachusetts and New
York. The court decided that for diversity purposes the
defendants were domiciled in Massachusetts because "[t]he
place where a person habitually eats, sleeps and makes his
home is his domicile," and "the part of the hotel in which
the defendants habitually eat and sleep is in Massachusetts."
Id. See also Teel v. Hamilton-Wenham Regional School
___ _________ ____ _________________________________
District, 433 N.E.2d 907 (Mass.App. 1982) ("it may generally
________
be said that one resides in the jurisdiction in which he
sleeps"); Abington v. North Bridgewater, 23 Pick. (Mass.) 170
________ _________________
-4-
(1840) ("if a man has a dwellinghouse, situated partly within
one jurisdiction and partly in another . . . he shall be
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Related
Walton Hardin v. James L. McAvoy and Knox Corporation
216 F.2d 399 (Fifth Circuit, 1955)
Verna Z. Shafer v. Children's Hospital Society of Los Angeles, California
265 F.2d 107 (D.C. Circuit, 1959)
Roger C. Brewin and Mary T. Brewin v. Commissioner of Internal Revenue, Kurt H. And Jolanda M. Teil v. Commissioner of Internal Revenue
639 F.2d 805 (D.C. Circuit, 1981)
Bernard H. Dornbusch v. Commissioner of Internal Revenue Service, Karl L. Dahlstrom
860 F.2d 611 (Fifth Circuit, 1988)
Syme v. Rowton
555 F. Supp. 33 (D. Montana, 1982)
Teel v. Hamilton-Wenham Regional School District
433 N.E.2d 907 (Massachusetts Appeals Court, 1982)
Brewin v. Commissioner
72 T.C. 1055 (U.S. Tax Court, 1979)
Blaine v. Murphy
265 F. 324 (D. Massachusetts, 1920)
General Electric Co. v. Cugini
640 F. Supp. 113 (D. Puerto Rico, 1986)
Clark & Reid Co. v. United States
804 F.2d 3 (First Circuit, 1986)
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