Opinion
Docket Nos. 19148 19149.
1950-02-10
ROBERT W. SEELEY AND GLEN MCD. SEELEY, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.ROBERT W. SEELEY, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Raymond F. Garrity, Esq., for the petitioners. William A. Schmitt, Esq., and Pershing W. Bergard, Esq., for the respondent.
1. Upon the facts, held, petitioner was not a bona fide resident of a foreign country or countries during the taxable years involved within the meaning of section 116(a) of the Internal Revenue Code.
2. The amount of allowable deduction for medical expense determined. Raymond F. Garrity, Esq., for the petitioners. William A. Schmitt, Esq., and Pershing W. Bergard, Esq., for the respondent.
The respondent determined deficiencies in income tax against the petitioners for the calendar years 1943 and 1944 in the amounts of $6,644.34 and $6,199.87, respectively. Those amounts, together with the interest thereon, were paid by petitioners after the mailing of the respective notices of deficiency. Petitioners claim they are entitled to refunds of those amounts. In an amendment to the petition, petitioners also claim they are entitled to a further refund of $1,907.37. Although no deficiency was determined for 1942, that year is involved because of the Current Tax Payment Act of 1943. The petitioners abandoned their assignment of error with respect to the year 1942. They also concede:
* * * that for the period October 1, 1944 to December 31, 1944 (they are) taxable upon (Robert W. Seeley's) allocable compensation from General Motors Overseas Operations for the period, that is to say, upon one-fourth of the $18,005.46 received for the year 1944.
(Note: The basis for this concession is that, aside from the question of foreign residency, the compensation here involved was not received from sources without the United States.)
There are two issues presented:
(1) Was petitioner, Robert W. Seeley, a bona fide resident of a foreign country or countries during the years 1943 and 1944 as provided by section 116(a) of the Internal Revenue Code, as amended by section 148 of the Revenue Act of 1942?
(2) What portion of the $1,192.69 which petitioners expended for medical expenses in the taxable year 1943 is deductible from income for that year under section 23(x) of the Internal Revenue Code?
FINDINGS OF FACT.
Parts of the facts have been stipulated and they are so found.
Petitioners are husband and wife. The word ‘petitioner‘ when hereinafter used will refer to Robert W. Seeley. The principal office of Robert W. Seeley is c/o General Motors Overseas Operations, 1775 Broadway, New York, New York. The returns for the period involved were filed on the cash receipts and disbursements basis with the collector of internal revenue for the third district of New York.
The General Motors Overseas Operations is a division of General Motors Corporation devoted exclusively to the handling of its foreign trade. It has numerous subsidiary plants, branches, and offices located abroad, as well as many independent overseas distributors and dealers for its various products.
Petitioner has been associated with General Motors Overseas Operations since August 1, 1929. Prior to that he was employed in India, Ceylon, Bermuda, Malay, and Siam. He returned from those countries to the United States for purposes of vacation only. Petitioner's first assignment after joining General Motors Overseas Operations was as manager of the branch in Copenhagen, Denmark. That assignment became effective January 22, 1930. On April 1, 1933, he was made assistant managing director of the Denmark operations. On April 7, 1933, he returned to the United States, where he remained until April 1, 1937. In 1935 he made a trip of approximately three months' duration of the Scandinavian and other European countries for General Motors Overseas Operations.
On March 1, 1937, petitioner was appointed managing director of General Motors Nordiska A/B, an assembly plant located at Stockholm, Sweden. On April 1, 1937, petitioners, together with their two children, left the United States for Sweden, where petitioner actively assumed his new position.
Petitioners shipped their furniture to Stockholm, where they furnished an apartment at #15 Floragatan. They resided there until on or about February 3, 1941, when they returned to the United States. During their stay in Sweden their children attended Swedish schools. Petitioner took out membership in business and social clubs in Stockholm. They maintained no home in the United States during their stay in Sweden. In the course of this stay petitioner made one trip to the United States on company business, sailing from Sweden on the S.S. Gripsholm on May 29, 1939, and departing from the United States for Sweden on the S.S. Deutschland on August 16, 1939.
Petitioner's return to the United States on or about February 3, 1941, was made at the direction of the management of General Motors Overseas Operations, New York City, for the purpose of discussing the war situation and its impact upon the company's business in Sweden and upon himself and his family.
Petitioner appointed an acting manager for the Swedish branch and maintained his apartment and domestic help in Stockholm for approximately six months after his return to the United States.
Upon his arrival in the United States petitioner's passport was picked up and, after the completion of his discussions with the management, he was told to go on vacation until further advised.
When he returned from his vacation petitioner was told by the company that, due to wartime travel restrictions, he could not at that time return to Sweden and that they would wait for a more opportune time for his return. Beginning June 1, 1941, petitioner was stationed in New York and on September 1, 1941, his position was changed to staff assistant, Pacific Region.
Upon their arrival in the United States petitioners rented an apartment in Bronxville, New York, and they and their children lived there until June 20, 1942, when petitioner was assigned to a position in England. Neither petitioner's wife nor his children accompanied him to England. His wife then moved to an apartment in Central Park South, New York City. His son attended college in Maine prior to entering the United States Navy and his daughter attended a school in Massachusetts.
Petitioner's position in England was that of staff assistant, British Isles Region, and, in addition, he was on the board of directors of Vauxhall Motors, Ltd., and managing director of General Motors, Ltd. At the same time he still remained as managing director of General Motors Nordiska A/B, which position he had never relinquished, and he was actively consulted on matters pertaining to that branch of the company's business. On one occasion the acting manager of General Motors Nordiska A/B flew to London for the purpose of discussing the operations in Sweden with petitioner.
Petitioner's duty as staff assistant of the British Isles Region was to find out just what was happening to the divisions of General Motors Overseas Operations located there and periodically to report to the general manager in New York. The assignment there was temporary.
Petitioner was able to obtain a passport in order to go to England, since that country was an ally of the United States and General Motors Overseas Operations was doing much manufacturing for the British armed forces.
After the commencement of his British assignment on June 20, 1942, petitioner made the following trips back to the United States for business discussions and home leave:
Returned to United States Sep. 27, 1942— via plane
Departed . . . Nov. 25, 1942— via plane
Returned to United States May 2, 1943— via plane
Departed . . . July 9, 1943— via plane
Returned to United States Dec. 23, 1943— via plane
Departed . . . Feb. 25, 1944— via plane
Returned to United States June 15, 1944— via plane
The first 2 weeks of each of the trips made on May 2 and December 23, 1943, to the United States constituted vacations, while the remainder of such trips was devoted to business matters pertaining solely to the English operations. With the commencement of the June 15, 1944, trip petitioner went on a vacation which extended until October 1, 1944. In all, petitioner had 22 days of vacation during 1943 and 114 days during 1944.
As of October 1, 1944, Robert W. Seeley was appointed assistant operations manager, and general manager on the staff, New York, although he continued to remain, as before, as managing director of General Motors Nordiska A/B.
Effective July 23, 1945, the restrictions on civilian travel were removed with respect to all countries in Europe except Germany, Austria, and Italy.
On August 25, 1945, petitioner returned to Sweden as managing director of General Motors Nordiska A/B and he and petitioner Glen McD. Seeley took up their residence there. He relieved the man whom he had appointed as acting manager.
The compensation of petitioner from General Motors Overseas Operations for personal services rendered totaled $18,465.95 for the year 1942, $21,973.02 for the year 1943, and $18,005.46 for the year 1944. During the years 1942 and 1943 petitioner Glen McD. Seeley had no income.
Petitioner's salary when he was general manager of Nordiska was paid by General Motors Nordiska A/B and Nordiska continued to pay his salary until about September 1, 1941, at which time he was paid by the New York office.
Petitioner's salary was paid by the New York office during his assignment as staff assistant, British Isles Region.
In their return for 1942 petitioners included in income the $18,465.95 above referred to; in the returns for 1943 and 1944, however, the $21,972.02 and $18,005.46 were not included in income. In the notices of deficiency the respondent has treated all these amounts as taxable. Petitioners did not report or pay any income tax on these amounts of compensation to either Sweden or Great Britain.
In a claim for refund of taxes filed for the calendar year 1943, petitioner made no reference to his being a resident of England, but claimed that he was a resident of Sweden. In an explanatory sheet attached to his 1944 income tax return, petitioner stated that he considered himself a resident of Sweden during that calendar year. In his petition petitioner stated that he resided temporarily in London.
During the taxable year 1943 petitioners paid medical expenses totaling $1,192.69. In their return for that year they claimed, as the allowable deduction under section 23(x) of the Internal Revenue Code, the sum of $1,107.64. The Commissioner has allowed as a deduction only $8.99 of the above sum and has disallowed the balance of $1,098.65.
OPINION.
HILL, Judge:
Petitioner contends that he was a bona fide resident of a foreign country or countries for the years involved within the meaning of section 116(a) of the Internal Revenue Code,
SEC. 116. EXCLUSIONS FROM GROSS INCOME.In addition to the items specified in section 22(b), the following items shall not be included in gross income and shall be exempt from taxation under this chapter:(a) EARNED INCOME FROM SOURCES WITHOUT THE UNITED STATES—(1) FOREIGN RESIDENT FOR ENTIRE TAXABLE YEAR.— In the case of an individual citizen of the United States, who establishes to the satisfaction of the Commissioner that he is a bona fide resident of a foreign country or countries during the entire taxable year, amounts received from sources without the United States (except amounts paid by the United States or any agency thereof) if such amounts constitute earned income as defined in paragraph (3); but such individual shall not be allowed as a deduction from his gross income any deductions properly allocable to or chargeable against amounts excluded from gross income under this subsection.
His status as a resident of Sweden was unimpaired by his absence therefrom during the taxable years, since such absence was an enforced one beyond his control and he at all times intended to, and he did, in fact, return to that country as soon as possible.
He also argues:
In the alternative, petitioner became a resident of England when he went there on June 20, 1942, since his assignment was in line with his ‘foreign status‘ employment and was of indefinite duration.
The respondent maintains that neither position is tenable.
The legislative history of section 116(a) was discussed in Arthur J. H. Johnson, 7 T.C. 1040, so we shall not repeat it here. We note from Walter J. Baer, 6 T.C. 1195, and Swenson v. Thomas, 164 Fed.(2d)783, that the term ‘residence‘ as used in section 116(a) does not mean ‘domicile,‘ and from Audio Gray Harvey, 10 T.C. 183, that ‘in the absence of any categorical statutory definition of residence, the facts in each case affect the result in that regard.‘ In other words, we must examine the facts presented here to determine whether the granting of the relief sought would be within the purpose of Congress in placing section 116(a) in the Internal Revenue Code.
We do not find any other case in which the facts or circumstances are easily comparable with those here presented; hence, the several cases involving this question give us scant aid in solution of our problem. However, there is a definition of ‘sojourn,‘ ‘residence,‘ and ‘domicile‘ contained in Beale, Conflict of Laws, vol. 1, p. 109, sec. 10.3, which gives us some help. It there states as follows:
* * * The difference between three conceptions, that of sojourn, residence, and domicil (not now including domicil by operation of law) is one purely of intention. To become a sojourner, no intention whatever is necessary, merely the fact of personal existence in the place. For residence there is an intention to live in the place for the time being. For the establishment of domicil the intention must be not merely to live in the place but to make a home there.
We shall first consider petitioner's principal contention that he was a resident of Sweden during the years 1943 and 1944. The facts disclose that petitioner arrived in this country from Sweden on February 3, 1941, and that he never returned to that country until August 25, 1945. Approximately six months after his arrival here he gave up his apartment in Stockholm and released his domestic help there. From that time until his return in 1945 he never maintained any abode in Sweden. In June, 1941, after vacationing from February 3, he was assigned to work in the United States. His wife and two children were here with him, where his children continued their education.
In addition petitioner neither reported income nor paid any taxes to any foreign country or countries during the years involved. ‘ * * * Though of course not conclusive, we regard the point of taxes paid one to be weighed in determining foreign residence * * * .‘ Audio Gray Harvey, supra, p. 190.
We think that those facts show that petitioner, at least from the date that he was assigned work here in June, 1941, which was about the same time he gave up his apartment and domestic help in Sweden, was no longer a bona fide resident of Sweden within the meaning of section 116(a), supra.
Petitioner, in support of his contention, stresses section 29.211-5 of Regulations 111, which, inter alia, is set forth in the margin.
Petitioner interprets this regulation to mean that a person who has once established a residence must abandon it before he can acquire residence elsewhere, and, since petitioner never abandoned his residence in Sweden, he was a bona fide resident of that country, citing Federico Stallforth, 30 B.T.A. 546; affd., 77 Fed.(2d) 548; L. E. L. Thomas, 33 B.T.A. 725; Walter J. Baer, supra. We believe the facts, as above outlined, dispute petitioner's statement that he never abandoned his residence in Sweden. Some considerable time before the taxable year involved he had given up his living quarters there and severed all ties with that country except to correspond occasionally with the ‘so-called‘ acting manager of the Swedish operation of General Motors Overseas Operations.
SEC. 29.116-1. EARNED INCOME FROM SOURCES WITHOUT THE UNITED STATES.— * * * Whether the individual citizen of the United States is a bona fide resident of a foreign country shall be determined in general by the application of the principles of sections 29.211-2, 29.211-3, 29.211-4, and 29-211-5 relating to what constitutes residence or nonresidence, as the case may be, in the United States in the case of an alien individual.SEC. 29.211-2. DEFINITION.— A ‘nonresident alien individual‘ means an individual—(a) Whose residence is not within the United States; and(b) Who is not a citizen of the United States.The term includes a nonresident alien fiduciary.An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned. 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.SEC. 29.211-5. LOSS OF RESIDENCE BY ALIEN.— An alien who has acquired residence in the United States retains his status as a resident until he abandons the same and actually departs from the United States. An intention to change his residence does not change his status as a resident alien to that of a nonresident alien. Thus, an alien who has acquired a residence in the United States is taxable as a resident for the remainder of his stay in the United States.
In addition, section 29.211-2 of Regulations 111 should be read with section 29.211-5. It is there stated than an alien who comes to the United States for an extended stay ‘becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned.‘
It may be true, as petitioner contends, that it was impossible for him to return to Sweden, due to circumstances caused by the war, but we think that that argument could also be used in support of respondent's position. If, as petitioner says, it was impossible for him to return to Sweden, did he not then, from the time it was determined that conditions would not permit his return, fully intend to be a resident of the United States until those conditions were removed? We think, in view of the facts above outlined here, that that question must be answered in the affirmative.
We can find no merit in petitioner's alternative contention that he was a resident of England from June, 1942, through 1943 and part of 1944. This contention is obviously an afterthought. In the claims for refund filed for the years involved he always claimed himself to be a resident of Sweden. In his petition he makes two references to his residing in London temporarily and also reference to the assignment as being temporary.
Petitioner was in England after going there in 1942 only 99 days before he returned to the United States by plane in that same year to report foreign conditions in the British Isles. He remained here approximately 2 months. He made two trips by plane from England in 1943, and again he remained in this country for approximately 2 months on each trip. He returned to England by plane on February 25, 1944, for his last trip to that country. He finally returned to the United States by steamship in June 1944. All in all, petitioner devoted less than 2 years to his mission in England and during that period he was in the United States for approximately 6 months. At all times during the period involved his family was residing in the United States. Hence, we believe he was merely sojourning, not residing, in England during the years involved.
We conclude, therefore, that petitioner was not a bona fide resident of a foreign country or countries during the year involved within the meaning of section 116(a), supra.
During the taxable year 1943 petitioner incurred medical expenses of $1,192.69. The respondent determined that petitioner's corrected net income was $23,674.08. Under section 23(x) of the code pertaining to the year 1943, the amount of deductible medical expense was limited to the amount that exceeded 5 per cent of net income computed without the benefit of the deduction for medical expense. Five per cent of the amount of the corrected net income as determined by the respondent is $1,183.70. Therefore, since we have held above that respondent's determination as to petitioner's net income for the year 1943 was proper, petitioner's allowable medical deduction for 1943 is the difference between $1,192.69 and $1,183.70, or $8.99, as determined by respondent.
Decisions will be entered for respondent.