Corpus Juris Secundum, Legal Encyclopedia,
Volume 28, Domicile (Publication date 2003)
Treatise on the Law of Domicil -M.W. Jacobs, 1887. Google books
Why "domicile" and Becoming a "taxpayer" require your consent:
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Black's Law Dictionary, Sixth Edition, p. 485:
domicile. A person's legal home. That place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning. Smith v. Smith, 206 Pa.Super. 310, 213 A.2d 94. Generally, physical presence within a state and the intention to make it one's home are the requisites of establishing a "domicile" therein. The permanent residence of a person or the place to which he intends to return even though he may actually reside elsewhere. A person may have more than one residence but only one domicile. The legal domicile of a person is important since it, rather than the actual residence, often controls the jurisdiction of the taxing authorities and determines where a person may exercise the privilege of voting and other legal rights and privileges. The established, fixed, permanent, or ordinary dwellingplace or place of residence of a person, as distinguished form his temporary and transient, though actual, place of residence. It is his legal residence, as distinguished from his temporary place of abode; or his home, as distinguished from a place to which business or pleasure may temporarily call him. See also Abode; Residence.
"Citizenship," "habitancy," and "residence" are severally words which in particular cases may mean precisely the same as "domicile," while in other uses may have different meanings.
"Residence" signifies living in particular locality while "domicile" means living in that locality with intent to make it a fixed and permanent home. Schreiner v. Schreiner, Tex.Civ.App., 502 S.W.2d 840, 843.
For purpose of federal diversity jurisdiction, "citizenship" and "domicile" are synonymous. Hendry v. Masonite Corp., C.A.Miss., 455 F.2d 955.
[Black's Law Dictionary, Sixth Edition, p. 485]
Black's Law Dictionary, Sixth Edition, page 7
Abode. One's home; habitation; place of dwelling; or residence. Ordinarily means "domicile." Living place impermanent in character. Fowler v. Fowler, 156 Fla. 316, 22 So.2d 817, 818. The place where a person dwells. In re Erickson, 18 N.J.Misc. 5, 10 A.2d 142, 146. Residence of a legal voter. Pope v. Board of Education Com'rs, 370 Ill. 196, 18 N.E.2d 214, 216. Fixed place of residence for the time being. Augustus Co., for Use of Bourgeois v. Manzella, 19 N.J.Misc. 29, 17 A.2d 68, 70. For service of process, one's fixed place of residence for the time being; his "usual place of abode." Fed.R. Civil P.4. Kurilla v Roth, 132 N.J.L. 213, 38 A.2d 862, 864. See Domicile; Residence.
[Black's Law Dictionary, Sixth Edition, page 7 ]
Anderson v. Watt, 138 U.S. 694 (1891)
Holyfield v. Choctaw, 490 U.S. 30 (1989)
Sharon v. Hill, 26 F. 337 (1885) [inserts added]
““Citizenship” and “residence”, as has often been declared by the courts, are not convertible terms. ... “”The better opinion seems to be that a citizen of the United States is, under the amendment [14th], prima facie a citizen of the state wherein he resides , cannot arbitrarily be excluded therefrom by such state, but that he does not become a citizen of the state against his will, and contrary to his purpose and intention to retain an already acquired citizenship elsewhere. The amendment [14th] is a restraint on the power of the state, but not on the right of the person to choose and maintain his citizenship or domicile”“.
[Sharon v. Hill, 26 F. 337 (1885) [inserts added] ]
26 C.F.R §1.871-2: Determining Residence of Alien Individuals
Title
26: Internal Revenue
PART 1—INCOME TAXES
nonresident alien individuals
§ 1.871-2 Determining residence of alien individuals.
(b) Residence defined.
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.
26 C.F.R §1.871-4
§ 1.871-4 Proof of residence of aliens.
(a) Rules of evidence. The following rules of evidence shall govern in determining whether or not an alien within the United States has acquired residence therein for purposes of the income tax.
(b) Nonresidence presumed. An alien by reason of his alienage, is presumed to be a nonresident alien.
(c) Presumption rebutted--(1) Departing alien. In the case of an alien who presents himself for determination of tax liability before departure from the United States, the presumption as to the alien's nonresidence may be overcome by proof--
TITLE 26 App. > TITLE VI. > Rule 60
Rule 60. Proper Parties; Capacity
(c) Capacity:
The capacity of an individual, other than one acting in a fiduciary or other representative capacity, to engage in litigation in the Court shall be determined by the law of the individual’s domicile. The capacity of a corporation to engage in such litigation shall be determined by the law under which it was organized. The capacity of a fiduciary or other representative to litigate in the Court shall be determined in accordance with the law of the jurisdiction from which such person’s authority is derived.
[Title 26 Appendix, Rule 60(c)]
26 C.F.R §301.6362-6: Requirements relating to residence
Title
26: Internal Revenue
PART 301—PROCEDURE AND ADMINISTRATION
Seizure of Property for Collection of Taxes
§ 301.6362-6 Requirements relating to residence.
(3) Domicile defined.
For purposes of subparagraph (1)(ii) of this paragraph (b), and paragraph (d)(4) of this section, the term “domicile” shall mean an individual's fixed or permanent home. An individual acquires a domicile in a place by living there; even for a brief period of time, with no definite present intention of later removing therefrom. Residence without the requisite intention to remain indefinitely will not suffice to change domicile, nor will intention to change domicile effect such a change until accompanied by actual removal. A domicile, once acquired, is maintained until a new domicile is acquired.
Federal Rule of Civil Procedure, Rule 17(b)
Rule 17. Parties Plaintiff and Defendant; Capacity
(b) Capacity to Sue or be Sued.
The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual's domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., §§ 754 and 959(a).
Bouvier's Law Dictionary, 1856-Domicil
DOMICIL. The place
where a person has fixed his ordinary dwelling, without a
present intention of removal. 10 Mass. 488; 8 Cranch, 278; Ersk. Pr.
of Law of Scotl. B. 1, tit. 2, s. 9; Denisart, tit. Domicile, 1, 7, 18, 19;
Voet,
Pandect, lib. 5, tit. 1, 92, 97; 5 Madd. Ch. R. 379; Merl. Rep. tit.
Domicile; 1 Binn. 349, n.; 4 Humph. 346. The law of domicil is of great
importance in those countries where the maxim "actor sequitur forum
rei" is
applied to the full extent. Code Civil, art. 102, &c.; 1 Toullier, 318.
2. A man cannot be without a domicil, for he is not supposed
to have
abandoned his last domicil until he has acquired a new one. 5 Ves. 587;
3
Robins. 191; 1 Binn. 349, n.; 10 Pick. 77. Though by the Roman law a
man
might abandon his domicil, and, until be acquired a. new one, he was
without
a domicil. By fixing his residence at two different places a man may
have
two domicils at one and the same time; as, for example, if a foreigner,
coming to this country, should establish two houses, one in New York
and
the, other in New Orleans, and pass one-half of the year in each; he
would,
for most purposes, have two domicils. But it is to be observed that
circumstances which might be held sufficient to establish a commercial
domicil in time of war, and a matrimonial, or forensic or political
domicil
in time of peace, might not be such as would establish a principal or
testamentary domicil, for there is a wide difference in applying the
law of
domicil to contracts and to wills. Phill. on Dom. xx; 11 Pick. 410 10
Mass.
488; 4 Wash. C. C. R. 514.
3. There are three kinds of domicils, namely: 1. The domicil
of origin.
domicilium originis vel naturale. 2. The domicil by operation of law,
or
necessary domicil. 3. Domicil of choice.
4.-1. By domicil of origin is understood the home of a
man's parents,
not the place where, the parents being on a visit or journey, a child
happens to be born. 2 B. & P. 231, note; 3 Ves. 198. Domicil of origin
is to
be distinguished from the accidental place of birth. 1 Binn. 349.
5.-2. There are two classes of persons who acquire domicil
by
operation of law. 1st. Those who are under the control of another, and
to
whom the law gives the domicil of another. Among these are, 1. The wife.
2.
The minor. 3. The lunatic, &c. 2d. Those on whom the state affixes a
domicil. Among this class are found, 1. The officer. 2. The prisoner,
&c.
6.-1st. Among those who, being under the control of another,
acquire
such person's domicil, are, 1. The wife. The wife takes the domicil
of her
husband, and the widow retains it, unless she voluntarily change it,
or
unless, she marry a second time, when she takes the domicil of the second
husband. A party may have two domicils, the one actual, the other legal;
the
husband's actual and the wife's legal domicil, are, prima facie, one.
Addams' Ecc. R. 5, 19. 2. The domicil of the minor is that of the father,
or
in Case of his death, of the mother. 5 Ves. 787; 2 W. & S. 568; 3 Ohio
R.
101; 4 Greenl. R. 47. 3. The domicil of a lunatic is regulated by the
same principles which operated in cases of minors the domicil of such a person
may be changed by the direction, or with the assent of the guardian,
express
or implied. 5 Pick. 20.
7.-2d. The law affixes a domicil. 1. Public officers, such
as the
president of the United States, the secretaries and such other officers
whose public duties require a temporary residence at the capital, retain
their domicils. Ambassadors preserve the domicils which they have in
their
respective countries, and this privilege extends to the ambassador's
family.
Officers, soldiers, and marines, in the service of the United States,
do not
lose their domicils while thus employed. 2. A prisoner does not acquire
a
domicil where the prison is, nor lose his old. 1 Milw. R. 191, 2.
8.-3. The domicil of origin, which has already been explained,
remains until another has been acquired. In order to change such domicil;
there must be an actual removal with an intention to reside in the place
to
which the party removes. 3 Wash. C. C. R. 546. A mere intention to remove,
unless such intention is carried into effect, is not sufficient. 5 Greenl.
R. 143. When he changes it, he acquires a domicil in the. place of his
new
residence, and loses his original domicil. But upon a return with an
intention to reside, his original domicil is restored. 3 Rawle, 312;
1
Gallis. 274, 284; 5 Rob. Adm. R. 99.
9. How far a settlement in a foreign country will impress
a hostile
character on a merchant, see Chitty's Law of Nations, 31 to 50; 1 Kent,
Com.
74 to 80; 13 L. R. 296; 8 Cranch, 363; 7 Cranch, 506; 2 Cranch, 64 9
Cranch,
191; 1 Wheat. 46; 2 Wheat 76; 3 Wheat. 1 4 2 Gall. R. 268; 2 Pet. Adm.
Dec.
438 1 Gall. R. 274. As to its effect in the administration of the assets
of
a deceased non-resident, see 3 Rawle's R. 312; 3 Pick. R. 128; 2 Kent,
Com.
348; 10 Pick. R. 77. The law of Louisiana relating to the "domicil and
the
manner of changing the same" will be found in the Civil Code of Louisiana,
tit. 2, art. 42 to 49. See, also, 8 M. R. 709; 4 N. S. 51; 6 N. S. 467;
2 L.
R. 35; 4 L. R. 69; 5 N. S. 385 5 L. R. 332; 8 L. R. 315; 13 L. R. 297
11 L.
R. 178; 12 L. R. 190. See, on the subject generally, Bouv. Inst. Index,
h.t.
2 Bos. & Pul. 230, note 1 Mason's Rep. 411; Toullier, Droit Civil
Francais, liv. 1, tit. 3, n., 362 a 378; Domat, tome 2, liv. 1, s. 3;
Pothier, Introduction Generale aux Coutumes, n. 8 a 20; 1 Ashm. R. 126;
Merl. Rep. tit. Domicile 3 Meriv. R. 79; 5 Ves. 786; 1 Crompt. & J.
151; 1
Tyrwh. R. 91; 2 Tyrwh. R. 475; 2 Crompt. & J. 436 3 Wheat. 14 3 Rawle,
312;
7 Cranch, 506 9 Cranch, 388; 5 Pick. 20; 1 Gallis, 274, 545; 10 Mass.
488 11
Mass. 424; 13 Mass. 501 2 Greenl. 411; 3 Greenl 229, 354; 4 Greenl.
47; 8
Greenl. 203; 5 Greenl. 143; 4 Mason, 308; 3 Wash. C. C. R. 546; 4 Wash.
C.
C. R. 514 4 Wend, 602; 8 Wend. 134; 5 Pick. 370 10 Pick. 77; 11 Pick.
410; 1
Binn. 349, n.; Phil. on Dom. passim.
[Bouvier's Law Dictionary, 1856-Domicil]
Earley v. Hershey Transit Co., 55 F.Supp. 981, D.C.PA. (1944)
"The term ‘citizen‘, as used in the Judiciary Act with reference to the jurisdiction of the federal courts, is substantially synonymous with the term ‘domicile‘. Delaware, L. & W.R. Co. v. Petrowsky, 2 Cir., 250 F. 554, 557."
[Earley v. Hershey Transit Co., 55 F.Supp. 981, D.C.PA. (1944)]
Black's Law Dictionary, 4th Ed., p 310
The terms "citizen" and "citizenship" are distinguishable from "resident" or "inhabitant." Jeffcott v. Donovan, C.C.A.Ariz., 135 F.2d 213, 214; and from "domicile," Wheeler v. Burgess, 263 Ky. 693, 93 S.W.2d 351, 354; First Carolinas Joint Stock Land Bank of Columbia v. New York Title & Mortgage Co., D.C.S.C., 59 F.2d 35j0, 351. The words "citizen" and citizenship," however, usually include the idea of domicile, Delaware, L.&W.R.Co. v. Petrowsky, C.C.A.N.Y., 250 F. 554, 557; citizen inhabitant and resident often synonymous, Jonesboro Trust Co. v. Nutt, 118 Ark. 368, 176 S.W. 322, 324; Edgewater Realty Co. v. Tennessee Coal, Iron & Railroad Co., D.C.Md., 49 F.Supp. 807, 809; and citizenship and domicile are often synonymous. Messick v. Southern Pa. Bus Co., D.C.Pa., 59 F.Supp. 799, 800.
[Black's Law Dictionary, 4th Ed., p 310]
Black's Law Dictionary, 4th Ed., p 311
Domicile and citizen are synonymous in federal courts, Earley v. Hershey Transit Co., D.C. Pa., 55 F.Supp. 981, 982; inhabitant, resident and citizen are synonymous, Standard Stoker Co. v. Lower, D.C.Md., 46 F.2d 678, 683.
[Black's Law Dictionary, 4th Ed., p 311]
Newman-Green v. Alfonso Larrain, 490 U.S. 826 (1989)
Petitioner Newman-Green, Inc., an Illinois corporation, brought this state law contract action in District Court against a Venezuelan corporation, four Venezuelan citizens, and William L. Bettison, a United States citizen domiciled in Caracas, Venezuela. Newman-Green's complaint alleged that the Venezuelan corporation had breached a licensing agreement, and that the individual defendants, joint and several guarantors of royalty payments due under the agreement, owed money to Newman-Green. Several years of discovery and pretrial motions followed. The District Court ultimately granted partial summary judgment for the guarantors and partial summary judgment for Newman-Green. 590 F.Supp. 1083 (ND Ill.1984). Only Newman-Green appealed.
At oral argument before a panel of the Seventh Circuit Court of Appeals, Judge Easterbrook inquired as to the statutory basis for diversity jurisdiction, an issue which had not been previously raised either by counsel or by the District Court Judge. In its complaint, Newman-Green had invoked 28 U.S.C. § 1332(a)(3), which confers jurisdiction in the District Court when a citizen of one State sues both aliens and citizens of a State (or States) different from the plaintiff's. In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State. See Robertson v. Cease, 97 U.S. 646, 648-649 (1878); Brown v. Keene, 8 Pet. 112, 115 (1834). The problem in this case is that Bettison, although a United States citizen, has no domicile in any State. He is therefore "stateless" for purposes of § 1332(a)(3). Subsection 1332(a)(2), which confers jurisdiction in the District Court when a citizen of a State sues aliens only, also could not be satisfied because Bettison is a United States citizen. [490 U.S. 829]
When a plaintiff sues more than one defendant in a diversity action, the plaintiff must meet the requirements of the diversity statute for each defendant or face dismissal. Strawbridge v. Curtiss, 3 Cranch 267 (1806).{1} Here, Bettison's "stateless" status destroyed complete diversity under § 1332(a)(3), and his United States citizenship destroyed complete diversity under § 1332(a)(2). Instead of dismissing the case, however, the Court of Appeals panel granted Newman-Green's motion, which it had invited, to amend the complaint to drop Bettison as a party, thereby producing complete diversity under § 1332(a)(2). 832 F.2d 417 (1987). The panel, in an opinion by Judge Easterbrook, relied both on 28 U.S.C. § 1653 and on Rule 21 of the Federal Rules of Civil Procedure as sources of its authority to grant this motion. The panel noted that, because the guarantors are jointly and severally liable, Bettison is not an indispensable party, and dismissing him would not prejudice the remaining guarantors. 832 F.2d at 420, citing Fed.Rule Civ.Proc. 19(b). The panel then proceeded to the merits of the case, ruling in Newman-Green's favor in large part, but remanding to allow the District Court to quantify damages and to resolve certain minor issues.{2}
[Newman-Green v. Alfonso Larrain, 490 U.S. 826 (1989)]
Williams v. North Carolina, 325 U.S. 226 (1945)
Under our system of law, judicial power to grant a divorce -- jurisdiction, strictly speaking -- is founded on domicil. Bell v. Bell, 181 U.S. 175; Andrews v. Andrews, 188 U.S. 14. The framers of the Constitution were familiar with this jurisdictional prerequisite, and, since 1789, neither this Court nor any other court in the English-speaking world has questioned it. Domicil implies a nexus between person and place of such permanence as to control the creation of legal relations and responsibilities of the utmost significance. The domicil of one spouse within a State gives power to that State, we have held, to dissolve [325 U.S. 230] a marriage wheresover contracted. In view of Williams v. North Carolina, supra, the jurisdictional requirement of domicil is freed from confusing refinements about "matrimonial domicil," see Davis v. Davis, 305 U.S. 32, 41, and the like. Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance. It also touches basic interests of society. Since divorce, like marriage, creates a new status, every consideration of policy makes it desirable that the effect should be the same wherever the question arises.
It is one thing to reopen an issue that has been settled after appropriate opportunity to present their contentions has been afforded to all who had an interest in its adjudication. This applies also to jurisdictional questions. After a contest, these cannot be relitigated as between the parties. Forsyth v. Hammond, 166 U.S. 506, 517; Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 30; Davis v. Davis, supra. But those not parties to a litigation ought not to be foreclosed by the interested actions of others, especially not a State which is concerned with the vindication of its own social policy and has no means, certainly no effective means, to protect that interest against the selfish action of those outside its borders. The domiciliary origin should not be bound by an unfounded, even if not collusive, recital in the record of a court of another State. As to the truth or existence of a fact, like that of domicil, upon which depends the power to exert judicial authority, a State not a party to the exertion of such judicial authority in another State, but seriously affected by it, has a right, when asserting its own unquestioned authority, to ascertain the truth or existence of that crucial fact.{6} [325 U.S. 231]
These considerations of policy are equally applicable whether power was assumed by the court of the first State or claimed after inquiry. This may lead, no doubt, to conflicting determinations of what judicial power is founded upon. Such conflict is inherent in the practical application of the concept of domicil in the context of our federal system.{7} See Worcester County Trust Co. v. Riley, 302 U.S. 292; Texas v. Florida, 306 U.S. 398; District of Columbia v. Murphy, 314 U.S. 441. What was said in Worcester County Trust Co. v. Riley, supra, is pertinent here.
Neither the Fourteenth Amendment nor the full faith and credit clause . . . requires uniformity in the decisions of the courts of different states as to the place of domicil, where the exertion of state power is dependent upon domicil within its boundaries.
302 U.S. 292, 299. If a finding by the court of one State that domicil in another State has been abandoned were conclusive upon the old domiciliary State, the policy of each State in matters of most intimate concern could be subverted by the policy of every other State. This Court has long ago denied the existence of such destructive power. The issue has a far reach. For domicil is the foundation of probate jurisdiction, precisely as it is that of divorce. The ruling in Tilt v. Kelsey, 207 U.S. 43, regarding the probate of a will is equally applicable to a sister-State divorce decree:
The full faith and credit due to the proceedings of the New Jersey court do not require that the courts of New York shall be bound by its adjudication on the question of domicil. On the contrary, it is open to the courts of any state, in the trial of a collateral issue, to determine, upon the evidence produced, the true domicil of the deceased.
207 U.S. 43, 53. [325 U.S. 232]
Although it is now settled that a suit for divorce is not an ordinary adversary proceeding, it does not promote analysis, as was recently pointed out, to label divorce proceedings as actions in rem. Williams v. North Carolina, supra, at 297. But, insofar as a divorce decree partakes of some of the characteristics of a decree in rem, it is misleading to say that all the world is party to a proceeding in rem. See Brigham v. Fayerweather, 140 Mass. 411, 413, 5 N.E. 265, quoted in Tilt v. Kelsey, supra, at 52. All the world is not party to a divorce proceeding. What is true is that all the world need not be present before a court granting the decree, and yet it must be respected by the other forty-seven States provided -- and it is a big proviso -- the conditions for the exercise of power by the divorce-decreeing court are validly established whenever that judgment is elsewhere called into question. In short, the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact. To permit the necessary finding of domicil by one State to foreclose all States in the protection of their social institutions would be intolerable.
But to endow each State with controlling authority to nullify the power
of a sister State to grant a divorce based upon a finding that one spouse
had acquired a new domicil within the divorcing State would, in the
proper functioning of our federal system, be equally indefensible. No
State court can assume comprehensive attention to the various and potentially
conflicting interests that several States may have in the institutional
aspects of marriage. The necessary accommodation between the right of
one State to safeguard its interest in the family relation of its own
people and the power of another State to grant divorces can be left
to neither State.
The problem is to reconcile the reciprocal respect to be accorded by
the members of the Union to their adjudications [325 U.S. 233] with
due regard for another most important aspect of our federalism whereby
"the domestic relations of husband and wife . . . were matters reserved
to the States," Popovici v. Agler, 280 U.S. 379, 383-384, and do not
belong to the United States. In re Burrus, 136 U.S. 586, 593-594. The
rights that belong to all the States, and the obligations which membership
in the Union imposes upon all, are made effective because this Court
is open to consider claims, such as this case presents, that the courts
of one State have not given the full faith and credit to the judgment
of a sister State that is required by Art. IV, § 1 of the Constitution.
[Williams v. North Carolina, 325 U.S. 226 (1945)]
Senate Report 89-1708:
Federal Tax Lien Act of 1966
Under present law, for notice of a tax lien to be effective, it must be filed in the office designated by the law of the State where the property subject to the lien is situated. Where the State has not designated an appropriate office, notice of the lien is required to be filed with the clerk of *3732 the Federal district court. In the latter case, too, the place of filing is determined by where the property subject to the lien is deemed to be situated.
The Internal Revenue Service takes the position that real property is situated where it is physically located. On this point there is no dispute. There is some dispute, however, as to where personal property, both tangible and intangible, is situated. The Service takes the position that as to both types of personal property, the domicile of the taxpayer determines the situs of the property. It further takes the position that, under existing law, a State may designate only one office for filing of notice of tax liens. Thus, the Service contends that as to the personal property of a taxpayer, notice of a Federal tax lien is valid as against all persons when the notice is filed in one office designated by the laws of the State where the taxpayer is domiciled. If the State designates more than one office, the Service takes the position that is is as if the State did not designate any office, and thus that the place to file a notice of lien is with the clerk of the appropriate Federal district court.
In most cases the courts have sustained the Revenue Service's interpretation of existing law and have held that the filing of notice of a tax lien against personal property was valid when filed at a taxpayer's domicile. In some cases, however, the courts have held that a filing of notice was not valid respect to a particular property of a taxpayer where the property was deemed to be situated elsewhere than at the taxpayers' domicile. [FN2] These conflicting authorities have created uncertainty not only for the Government but also for creditors, who, as a result, do not know where to look in order to determine if notice of a tax lien is on file.
The amendment made by your committee clarifies existing law by providing specific rules with respect to the place of filing a notice of a Federal tax lien against both real and personal property. As against real property, a notice of tax lien is to be filed in the one office designated by the State where the property is physically located. As against (all types of) personal property, a notice of tax lien is to be filed in the one office designated by the State where the taxpayer resides. In either case, where the State designates more than one office, notice of the lien is to be filed with the appropriate Federal district court.
The amendment requires notice of a tax lien to be filed where a taxpayer resides, and not at his domicile, as presently contended by the Internal Revenue Service, because of the difficulty in determining a person's domicile, based as it is on (among other things) his state of mind. On the other hand, for purposes of determining the residence of corporations and partnerships, the amendment provides specific rules for determining their residence. Under the amendment, the residence of a corporation or a partnership is deemed to be the place at which its principal executive office is located. This is the most readily identifiable of all offices that a business may maintain, appearing, as it does, on the annual reports filed with most States and on similar returns, and avoids the uncertainty of determining which of the many business offices that a taxpayer may maintain is its principal one.
*3733 The amendment made by your committee also provides a rule for determining the residence of a taxpayer who resides out of the country. For purposes of filing a notice of tax lien, a taxpayer who resides abroad is deemed to reside in Washington, D.C. Thus, a notice of tax lien filed against his personal property is to be filed with the Recorder of Deeds for the District of Columbia.
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Martinez v. Bynum, 461 U.S. 321 (1983)
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West's Words & Phrases
A "domicile" is the place where the law regards a person to be, regardless of whether he is corporeally found there. U.S. v. Novero, D.C.Mo., 58 F.Supp. 275, 278.
Term "domicile" connotes a place with which a person has a connection for certain legal purposes, e.g., jurisdiction, determination of legitimacy, descent of personal property. In re Moore's Estate, 415 P.2d 653, 656, 68 Wash.2d 792.
"Domicile" implies a nexus between a person and place of such permanence as to authorize control of legal status, relationship and responsibilities of the domiciliary. Dosamantes v. Dosamantes, Tex.Civ.App., 500 S.W.2d 233, 236.
[West's Words& Phrases]
Black's Law Dictionary, Rev. 4th Ed. .
In international law, a residence at a particular place, accompanied with positive or presumptive proof of an intention to continue there for an unlimited time. Domicile may be deemed to be of three sorts,-- domicile by birth, domicile by choice, and domicile by operation of law. The first is the common case of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio motu; the last is consequential, as that of the wife arising from marriage. Story, Confl. Laws, § 46. and see railroad Co. v. Kimbrough, 115 Ky. 512, 74 S.W. 229; Johnson v. Harvey, 261 Ky. 522, 88 S.W.2d 42, 46, 47.
Domicile of Origin
The home of the parents. That which arises from a man's birth and connections. the domicile of the parents at the time of birth, or what is termed the "domicile of origin," constitutes the domicile of the infant, and continues until abandoned, or until acquisition of a new domicile in a different place.
Foreign Domicile
A domicile established by a citizen or subject of one sovereignty within the territory of another.
National Domicile
The domicile of a person, considered as being within
the territory of a particular nation, and not with
reference to a particular locality or subdivision of a
nation.Quasi National Domicile
One involving residence in a state. See National Domicile.
[Black's Law Dictionary, Rev. 4th Ed.]
California Elections Code, Sections 2020-2035
DIVISION 2. VOTERS
CHAPTER 1. VOTER QUALIFICATIONS
Article 2. Determination of Residence and Domicile
SECTION 2020-20352020. The term of domicile is computed by including the day on which the person's domicile commenced and by excluding the day of the election.
2021. (a) A person who leaves his or her home to go into anotherstate or precinct in this state for temporary purposes merely, with the intention of returning, does not lose his or her domicile.
(b) A person does not gain a domicile in any precinct into which he or she comes for temporary purposes merely, without the intention of making that precinct his or her home.
2022. If a person moves to another state with the intention of making it his or her domicile, the voter loses his or her domicile in this state.
2023. If a person moves to another state as a place of permanent residence, with the intention of remaining there for an indefinite time, he or she loses his or her domicile in this state, notwithstanding that he or she intends to return at some future time.
2024. The mere intention to acquire a new domicile, without the fact of removal avails nothing, neither does the fact of removal without the intention.
2025. A person does not gain or lose a domicile solely by reason of his or her presence or absence from a place while employed in the service of the United States or of this state, nor while engaged in navigation, nor while a student of any institution of learning, nor while kept in an almshouse, asylum or prison. This section shall not be construed to prevent a student at an institution of learning from qualifying as an elector in the locality where he or she domiciles while attending that institution, when in fact the student has abandoned his or her former domicile.
2026. The domicile of a Member of the Legislature or a Representative in the Congress of the United States shall be conclusively presumed to be at the residence address indicated on that person's currently filed affidavit of registration.
2027. The place where a person's family is domiciled is his or her domicile unless it is a place for temporary establishment for his or her family or for transient objects. Residence in a trailer or vehicle or at any public camp or camping ground may constitute a domicile for voting purposes if the registrant complies with the other requirements of this article.
2028. If a person has a family fixed in one place, and he or she does business in another, the former is his or her place of domicile, but any person having a family, who has taken up an abode with the intention of remaining and whose family does not so reside with him or her, is a domiciliary where he or she has so taken up the abode.
2029. The domicile of one spouse shall not be presumed to be that of the other, but shall be determined independently in accordance with this article.
2030. A domiciliary of this state who marries a person employed temporarily in this state in the service of the United States government, may elect to retain his or her domicile for the purpose of qualifying as an elector only, except that his or her domicile in this state shall terminate if the domiciliary qualifies as an elector in any other state or any territory.
2031. If a person has more than one residence and that person maintains a homeowner's property tax exemption on the dwelling of one of the residences pursuant to Section 218 of the Revenue and Taxation Code, there shall be a rebuttable presumption that the residence subject to the homeowner's property tax exemption is that person's domicile. However, this presumption shall not apply in the event any other residence is listed as the person's current residence address on any driver's license, identification card or vehicle registration issued to that person by, and on file with, the Department of Motor Vehicles.
If a person has more than one residence and that person claims a renter's tax credit for one of the residences pursuant to Section 17053.5 of the Revenue and Taxation Code, there shall be a rebuttable presumption that the residence subject to the renter's tax credit is that person's domicile. However, this presumption shall not apply in the event any other residence is listed as the person's current residence address on any driver's license, identification card, or vehicle registration issued to that person by, and on file with, the Department of Motor Vehicles. This section shall not be applicable to state or federal elected officials.
2032. Except as provided in this article, if a person has more than one residence and that person has not physically resided at any one of the residences within the immediate preceding year, there shall be a rebuttable presumption that those residences in which he or she has not so resided within the immediate preceding year are merely residences as defined in subdivision (c) of Section 349 and not his or her domicile.
2033. Whenever the house number or the mailing address of a voter has been changed and the voter's domicile is the same, the public agency authorizing the change shall notify the county elections official in writing of the change and the county elections official shall make the change on the voter's affidavit of registration and a new affidavit shall not be required.
2034. A person domiciled in a house or apartment lying in more than one precinct shall be registered as domiciled in the precinct designated by the county elections official on the basis of the street address or other precinct the county elections official considers appropriate unless the person requests, either by letter or in person at the office of the county elections official, that he or she wishes to be domiciled for registration purposes in another precinct in which his or her house or apartment lies. In order to fulfill the requirements of this section, the letter of request shall include the name, signature, and residence address of the requester.
2035. A person duly registered as a voter in any precinct in California who removes therefrom within 14 days prior to an election shall, for the purpose of that election, be entitled to vote in the precinct from which the person so removed until the close of the polls on the date of that election.
TITLE 26 > Subtitle A > CHAPTER 1 > Subchapter N > PART III > Subpart B > § 911
§ 911. Citizens or residents of the United States living abroad(d) Definitions and special rules
For purposes of this section—
(3) Tax home
The term “tax home” means, with respect to any individual, such individual’s home for purposes of section 162 (a)(2) (relating to traveling expenses while away from home). An individual shall not be treated as having a tax home in a foreign country for any period for which his abode is within the United States.
8 C.F.R §316.5: Residence in the United States
[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR316.5]
[Page 716-718]
TITLE 8--ALIENS AND NATIONALITY
CHAPTER I--DEPARTMENT OF HOMELAND SECURITY
PART 316_GENERAL REQUIREMENTS FOR NATURALIZATION--Table of Contents
Sec. 316.5 Residence in the United States.
(a) General.Unless otherwise specified, for purposes of this chapter, including Sec. 316.2 (a)(3), (a)(5), and (a)(6), an alien's residence is the same as that alien's domicile, or principal actual dwelling place, without regard to the alien's intent, and the duration of an alien's residence in a particular location is measured from the moment the alien first establishes residence in that location.
Tax home. Your tax home is the general area of your main place of business, employment, or post of duty, regardless of where you maintain your family home. Your tax home is the place where you permanently or indefinitely work as an employee or self-employed individual. If you do not have a regular or main place of business because of the nature of your work, then your tax home is the place where you regularly live. If you do not fit either of these categories, you are considered an itinerant and your tax home is wherever you work.
For determining whether you have a closer connection to a foreign country, your tax home must be in existence for the entire current year, and must be located in the same foreign country to which you are claiming to have a closer connection.
Foreign country. In determining whether you have a closer connection to a foreign country, the term "foreign country" means"
- Any territory under the sovereignty of the United Nations or a government other than that of the United States.
- The territorial waters of the foreign country (determined under U.S. law),
- The seabed and subsoil of those submarine areas which are adjacent to the territorial waters of the foreign country and over which the foreign country has exclusive rights under international law to explore and exploit natural resource, and
- Possessions and territories of the United States.
Establishing a closer connection. You will be considered to have a closer connection to a foreign country than the United States if you or the IRS establishes that you have maintained more significant contacts with the foreign country than with the United States. IN determining whether you have maintained more significant contacts with the foreign country than with the United States, the facts and circumstances to be considered include, but are no limited to the following:
1. The country of resident you designate on forms and documents.
2. The types of official forms and documents you file, such as Form W-9, Form W-8BEN, or Form W-9ECI.
3. The location of
a. Your permanent home.
b. Your family.
c. Your personal belongings, such as cars, furniture, clothing, and jewelry,
d. Your current social, political, cultural, professional, or religious affiliations,
e. Your business activities (other than those that constitute your tax home),
f. The jurisdiction which you hold a driver's license,
g. The jurisdiction ion which you vote, and
h. Charitable organizations to which you contribute.
It does not matter whether your permanent home is a house, an apartment, or a furnished room. It also does not matter whether you rend or own it. It is imporant, however, that your home be available at all times, continuously and not solely for short stays.
You cannot claim you have a closer connection to a foreign country if either the following applies.
- You personally applied, or took other steps during the year, to change your status to that of a permanent resident, or
- You had an application pending for adjustment of status during the current year.
Steps to change your status to that of a permanent resident includes, but are not limited to, the filing of the following forms.
Form I-508, Waiver of Rights, Privileges, and Exemptions and Immunities
Form I-485, Application to Register Permanent Residence to Adjust Status
I-130, Petition for Alien Relative, on your behalf
Form I-140, Immigrant Petition for Alien Worker, on your behalf.
Form ETA-750, Application for Alien Employment Certification, on your behalf
Form DS-230, Application for Immigrant Visa and Alien Registration
Form 8840. You must attach a fully completed Form 8840 to your income tax return to claim you have a closer connection to a foreign country or countries.
If you do not have to file a return, send the form to the Internal Revenue Service Center, Austin TX 73301-0215, by the due date for filing Form 1040NR or Form 1040NR-EZ. The due date for filing is discussed in chapter 7.
If you do not timely file Form 8840, you cannot claim a closer connection to a foreign country or countries. This does not apply if you can show by clear and convincing evidence that y7ou took reasonable action to become aware of the filing requirements and significant steps to comply with those requirements.
Arnold & Ramsey v. United Ins. Co., 1 Johns.Cas. 363 (N.Y.Sup. 1800)
"As long as public ministers and consuls confine themselves to the business appertaining to their public characters, their domicil is not changed, but remains in the country from which they are deputed, and they are not subjects of the country in which they reside. ( Vattel, 231. Martens, 155. 229.) But if they engage in business inconsistent with, or foreign to their public or diplomatic character, they are thenceforth to be considered as domiciliating themselves abroad, and becoming as subjects, amenable to the ordinary jurisdiction of the state. ( Vattel, 711--714.) As they contribute, by their industry and property, when engaged in trade, to aid the government under which they reside, it is but reasonable, that the enemies of that government should have a right to hold their property responsible, as that of an enemy."
[Arnold & Ramsey v. United Ins. Co., 1 Johns.Cas. 363 (N.Y.Sup. 1800)]
California Election Code, section 349:
349. (a) "Residence" for voting purposes means a person's domicile.
(b) The domicile of a person is that place in which his or her
habitation is fixed, wherein the person has the intention of remaining,
and to which, whenever he or she is absent, the person has the intention
of returning. At a given time, a person may have only one domicile.
(c) The residence of a person is that place in which the person's habitation
is fixed for some period of time, but wherein he or she does not have the
intention of remaining. At a given time, a person may have more than
one residence.