CITES BY TOPIC:  domicile

Compare: resident

PDF Corpus Juris Secundum, Legal Encyclopedia, Volume 28, Domicile (Publication date 2003)

PDF Affidavit of Domicile: Probate, Form #04.223 -SEDM

Wikipedia: Domicile

PDF Affidavit of Citizenship, Domicile, and Tax Status, Form #02.001-SEDM

PDF Buck v. Utah State Tax Commission, 2022 UT 11 (2022)

Treatise on the Law of Domicil -M.W. Jacobs, 1887.  Google books

  • PDF PDF (44 Mbytes, Large file!)

Why "domicile" and Becoming a "taxpayer" require your consent:



Commissioner v. Chicasaw Nation, 515 U.S. 450 (1995)

Regarding Oklahoma's income tax, the Court of Appeals declared that the State may not tax the wages of members of the Chickasaw Nation who work for the Tribe, including members who reside in Oklahoma outside Indian country.

The holding on tribal members who live in the State outside Indian country runs up against a well-established principle of interstate and international taxation—namely, that a jurisdiction, such as Oklahoma, may tax all the income 463*463 of its residents, even income earned outside the taxing jurisdiction:[11]

"That the receipt of income by a resident of the territory of a taxing sovereignty is a taxable event is universally recognized. Domicil itself affords a basis for such taxation. Enjoyment of the privileges of residence in the state and the attendant right to invoke the protection of its laws are inseparable from responsibility for sharing the costs of government . . . . These are rights and privileges which attach to domicil within the state. . . . Neither the privilege nor the burden is affected by the character of the source from which the income is derived." New York ex rel. Cohn v. Graves, 300 U. S. 308, 312-313 (1937).

This "general principl[e] . . . ha[s] international acceptance." American Law Institute, Federal Income Tax Project: International Aspects of United States Income Taxation 4, 6 (1987); see, e. g., C. Cretton, Expatriate Tax Manual 1 (2d ed. 1991) ("An individual who is resident in the UK is subject to income tax on all his sources of income, worldwide."). It has been applied both to the States, e. g., Shaffer v. Carter, 252 U. S. 37, 57 (1920); see 2 J. Hellerstein & W. Hellerstein, State Taxation § 20.04, p. 20-13 (1992), and to the Federal Government, e. g., Cook v. Tait, 265 U.S. 47, 56 (1924); see 1 J. Isenbergh, International Taxation 45-56 (1990).[12]

[Commissioner v. Chicasaw Nation, 515 U.S. 450 (1995)]

[EDITORIAL: Notice that they are talking about extraterritorial tax liability as being connected with domicile and identify domicile as a PRIVILEGE. All privileges are avoidable or we have unconstitutional involuntary servitude. And yet in Cook v. Tait , the court said Cook was domiciled in Mexico. So, the presumption of domicile in the statutory geographical "United States" was established in that case MERELY by calling himself a "U.S. citizen" on the 1040 return he filed the year that was the subject of that case! Apparently, the status of "U.S. citizen" as an office in the national government has a domicile INDEPENDENT of the person filling the office! This is ALSO why 26 C.F.R. §1.1-1(a) can impose the income tax upon WORLDWIDE income of those DOMICILED in the statutory geographical "United States".

The lesson learned is that you should NEVER claim to be a "U.S. citizen" on any government tax form, because it is an OFFICE in the national government domiciled in the District of Columbia and not at the place the OFFICER physically lives or has a domicile at. This is further explained in:

Civil Status (Important!), SEDM

So, the presumption of domicile in the statutory geographical "United States" was established in that case MERELY by calling himself a "U.S. citizen" on the 1040 return he filed the year that was the subject of that case! There are two levels to what happened with Cook.

  • The first level is the story for public consumption: that Cook never relinquished his American nationality and therefore remained a "citizen of the United States" and that he could therefore be taxed on that basis on all of his income worldwide. Cook's argument against that failed, as it had been already decided in previous cases that WHERE CONGRESS has POWER TO TAX, it is not limited to the territory of the United States. Cook's case helped to foster the MYTH that merely being American somehow makes you subject to income taxation on your worldwide income. This created the MYTH is that CONGRESS had power to tax Cook just because he was an American Citizen.
  • The second level of the story NOT for public consumption is that Congress has to give you actual consideration or "benefit" in some quantifiable form before they can actually tax you. The REALITY is that Cook filed a 1040 return and ACCEPTED the consideration of a lower tax rate on the first $4,000 of the taxable income he reported on his return. That consideration was offered ONLY to those who accept the status of "citizen or resident of the United States". That is why they ASKED on the form whether the person is a "citizen or resident of the United States", because back then, a nonresident alien would also use a 1040 for his tax return. A few years later, realizing it was weird to keep asking Americans ever year whether they were citizens, and wanting to obscure the knowledge that there was any choice, they decided to STOP asking the filer to state his status and instead they just used a DIFFERENT form for nonresident aliens, so that everyone who filed a 1040 from then on would be AUTOMATICALLY accepting the consideration offered to United States persons. That includes a trade or business graduated rate on income from sources in the United States, a standard deduction or being allowed to include certain personal expenses in itemized deductions.

These demons KNEW that in order to lawfully tax, they had to provide some substantive consideration or "benefit", or else they would be depending solely on someone's declaration of a status in order to rip that person off. Such a rip off could be challenged as fraud, but with the SSN's acceptance of consideration, they knew that basing the tax entirely on use of the civil status of "U.S. citizen" and use of the SSN franchise mark ALONE would NEVER be able to avoid the resulting obligation no matter how unfair or unjust it might appear to him or to the public.

Cook's declaration of status was not the ENTIRE problem so much as the consideration or actual financial "benefit" he pursued and accepted. Since 1938 the choice of 1040 as the return one files is all it takes to expressly accept that consideration. That consideration includes:

  • Graduated rate of tax with lower tax rate for low income people. Otherwise, the nonresident alien rate in 26 U.S.C. §871 is a flat 30%.
  • Deductions under 26 U.S.C. §162
  • Foreign earned income exclusions under 26 U.S.C. §911.
  • Exemptions.

But it is the CONSIDERATION that is disclosed in IRC as being inherent in the United States person status (not the nominal status itself) that causes the obligation to stick to the taxpayer like the tar baby stuck to Brier Rabbit.

HOWEVER, even THE ABOVE are not actual consideration if the party would otherwise be a nonresident alien with no "trade or business" earnings, all of whose earnings were EXCLUDED rather than EXEMPTED by statute or fundamental law. To claim consideration in that case is actually FRAUD. See:

Excluded Earnings and People, Form #14.019

Since the SSN became ubiquitous after 1937, the United States status of the individual is presumed in 26 C.F.R. §301.6109-1(g)(1)(i), which creates the rebuttable PRESUMPTION that one is a PRIVILEGED statutory "U.S. citizen".The consideration associated with United States person status is tacitly accepted by even non-filers, once IRS does that SFR exam and the non-filer still does not file and therefore defaults to the IRS' determination. This is because the substitute for returns they do as part of the Notice of Deficiency process is the RESIDENT 1040 rather than the 1040NR, and they just ASSUME the standard deductions that constitute the consideration.

More on the above at:

Tax Return History-Citizenship -complete history about how state nationals were deceived into filing the WRONG tax form: the 1040. The correct form is the 1040NR

Lawrence v. State Tax Commission, 286 U.S. 276 (1932)

Appellant, a citizen and resident of Mississippi, brought the present suit to set aside the assessment of a tax upon so much of his net income for 1929 as arose from the construction by him of public highways in the State of Tennessee. The taxing statute was challenged on the ground that in so far as it imposes a tax on income derived wholly from activities carried on outside the state, it deprived appellant of property without due process of law, and that in exempting corporations, which were his competitors, from a tax on income derived from like activities carried on outside the state, it denied to him the equal protection of the laws.

The obligation of one domiciled within a state to pay taxes there, arises from unilateral action of the state government in the exercise of the most plenary of sovereign powers, that to raise revenue to defray the expenses of government and to distribute its burdens equably among those who enjoy its benefits. Hence, domicile in itself establishes a basis for taxation. Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the responsibility for sharing the costs of government. See Fidelity & Columbia Trust Co. v. Louisville, 245 U.S. 54, 58Maguire v. Trefry, 253 U.S. 12, 14, 17Kirtland v. Hotchkiss, 100 U.S. 491, 498Shaffer v. Carter, 252 U.S. 37, 50. The Federal Constitution imposes on the states no particular modes of taxation, and apart from the specific grant to the federal government of the exclusive 280*280 power to levy certain limited classes of taxes and to regulate interstate and foreign commerce, it leaves the states unrestricted in their power to tax those domiciled within them, so long as the tax imposed is upon property within the state or on privileges enjoyed there, and is not so palpably arbitrary or unreasonable as to infringe the Fourteenth Amendment. Kirtland v. Hotchkiss, supra.

Taxation at the place of domicile of tangibles located elsewhere has been thought to be beyond the jurisdiction of the state, Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194Frick v. Pennsylvania, 268 U.S. 473, 488-489; but considerations applicable to ownership of physical objects located outside the taxing jurisdiction, which have led to that conclusion, are obviously inapplicable to the taxation of intangibles at the place of domicile or of privileges which may be enjoyed there. See Foreign Held Bond Case, 15 Wall. 300, 319Frick v. Pennsylvania, supra, p. 494. And the taxation of both by the state of the domicile has been uniformly upheld. Kirtland v. Hotchkiss, supraFidelity & Columbia Trust Co. v. Louisville, supraBlodgett v. Silberman, 277 U.S. 1Maguire v. Trefry, supra; compare Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204First National Bank v. Maine, 284 U.S. 312.

The present tax has been defined by the Supreme Court of Mississippi as an excise and not a property tax, Hattiesburg Grocery Co. v. Robertson, 126 Miss. 34; 88 So. 4; Knox v. Gulf, M. & N.R. Co., 138 Miss. 70; 104 So. 689, but in passing on its constitutionality we are concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it. See Educational Films Corp. v. Ward, 282 U.S. 379, 387Pacific Co. v. Johnson, 285 U.S. 480Shaffer v. Carter, supra, pp. 54-55.

It is enough, so far as the constitutional power of the state to levy it is concerned, that the tax is imposed 281*281 by Mississippi on its own citizens with reference to the receipt and enjoyment of income derived from the conduct of business, regardless of the place where it is carried on. The tax, which is apportioned to the ability of the taxpayer to bear it, is founded upon the protection afforded to the recipient of the income by the state, in his person, in his right to receive the income, and in his enjoyment of it when received. These are rights and privileges incident to his domicile in the state and to them the economic interest realized by the receipt of income or represented by the power to control it, bears a direct legal relationship. It would be anomalous to say that although Mississippi may tax the obligation to pay appellant for his services rendered in Tennessee, see Fidelity & Columbia Trust Co. v. Louisville, supraFarmers Loan & Trust Co. v. Minnesota, supra, still, it could not tax the receipt of income upon payment of that same obligation. We can find no basis for holding that taxation of the income at the domicile of the recipient is either within the purview of the rule now established that tangibles located outside the state of the owner are not subject to taxation within it, or is in any respect so arbitrary or unreasonable as to place it outside the constitutional power of taxation reserved to the state. Maguire v. Trefry, supra; see Fidelity & Columbia Trust Co. v. Louisville, supra.

The Supreme Court of Mississippi found it unnecessary to pass upon the validity of so much of the statute, added by the amendment of 1928, as exempted domestic corporations from the tax on income derived from activities outside the state. It said that if the amendment were valid, appellant could not complain; if invalid, he would still be subject to the tax, since the act which it amended, § 11, c. 132, Laws of 1924, would then remain in full force, and under it individuals and domestic corporations are taxed alike. Knox v. Gulf, M. & N.R. Co., supra.

282*282 But the Constitution, which guarantees rights and immunities to the citizen, likewise insures to him the privilege of having those rights and immunities judicially declared and protected when such judicial action is properly invoked. Even though the claimed constitutional protection be denied on non-federal grounds, it is the province of this Court to inquire whether the decision of the state court rests upon a fair or substantial basis. If unsubstantial, constitutional obligations may not be thus avoided. See Ward v. Love County, 253 U.S. 17, 22Enterprise Irrigation District v. Canal Co., 243 U.S. 157, 164Fox River Paper Co. v. Railroad Commission, 274 U.S. 651, 655. Upon one of the alternative assumptions made by the court, that the amendment is discriminatory, appellant's constitutional rights were infringed when the tax was levied upon him, and state officers acting under the amendment refrained from assessing the like tax upon his corporate competitors. See Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 246. If the Constitution exacts a uniform application of this tax on appellant and his competitors, his constitutional rights are denied as well by the refusal of the state court to decide the question, as by an erroneous decision of it, see Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 508, 512 et seq.; Smith v. Cahoon, 283 U.S. 553, 564, for in either case the inequality complained of is left undisturbed by the state court whose jurisdiction to remove it was rightly invoked. The burden does not rest on him to test again the validity of the amendment by some procedure to compel his competitors to pay the tax under the earlier statute. Iowa-Des Moines Nat. Bank v. Bennett, supra, p. 247. See Cumberland Coal Co. v. Board of Revision, 284 U.S. 23. We therefore conclude that the purported non-federal ground put forward by the state court for its refusal to decide the constitutional question was unsubstantial and 283*283 illusory, and that the appellant may invoke the jurisdiction of this Court to decide the question.

[Lawrence v. State Tax Commission, 286 U.S. 276 (1932)]

State of Texas v. Florida, 307 U.S. 398 (1939)

"Residence in fact, coupled with the purpose to make the place of residence one's home, are the essential elements of domicile. Mitchell v. United States, 21 Wall. 350Pannill v. Roanoke Times Co., 252 F. 910Beekman v. Beekman, 53 Fla. 858; 43 So. 923; Babcock v. Slater, 212 Mass. 434; 99 N.E. 173; Matter of Newcomb, 192 N.Y. 238; 84 N.E. 950; Beale, Conflict of Laws, § 15.2. We conclude, as the Special Master found, that Green ceased to have a place of residence in Texas after 1911. About 1914 he gave up his nominal place of abode in the room which he had rented in Terrell, Texas, and which in fact he had never occupied. After that he was never identified in fact with any place of residence in Texas, and there was 425*425 nothing in his life to connect him with a Texas home other than his frequent statements that his legal residence was in Texas. While one's statements may supply evidence of the intention requisite to establish domicile at a given place of residence, they cannot supply the fact of residence there; Matter of Newcomb, supra, 250Matter of Trowbridge, 266 N.Y. 283, 292; 194 N.E. 756; and they are of slight weight when they conflict with the fact. Feehan v. Tax Comm'r, 237 Mass. 169, 171; 129 N.E. 292; Dorrance's Estate, 309 Pa. 151; 163 A. 303. This is the more so where, as here, decedent's declarations are shown to have been inspired by the desire to establish a nominal residence for tax purposes, different from his actual residence in fact. Thayer v. Boston, 124 Mass. 132Feehan v. Tax Comm'r, supraMatter of Trowbridge, supra; Beale, supra, § 41C. In such circumstances the actual fact as to the place of residence and decedent's real attitude and intention with respect to it as disclosed by his entire course of conduct are the controlling factors in ascertaining his domicile. Thayer v. Boston, supra. When one intends the facts to which the law attaches consequences, he must abide the consequences whether intended or not. National City Bank v. Hotchkiss, 231 U.S. 50, 56Dickinson v. Brookline, 181 Mass. 195, 196; 63 N.E. 331."

[. . .]

The presupposition of jurisdiction in this case is the common law doctrine of a single domiciliary status. That 429*429 for purposes of legal rights and liabilities a person must have one domicile, and can have only one, is an historic rule of the common law and justified by much good sense. Nevertheless, it often represents a fiction. Certainly in many situations the determination of a man's domicile is by no means the establishment of an event or a fact that exists in nature. Even assuming that there is general agreement as to the elements which in combination constitute domicile, a slight shift of emphasis in applying the formula produces contradictory results. But, on the whole, the doctrine of domicile has adequately served as a practical working rule in the simpler societies out of which it arose. More particularly, its difficulties of application were circumscribed when wealth predominantly consisted of realty and tangibles, and when restricted modes of transportation and communication conditioned fixity of residence. In view of the enormous extent to which intangibles now constitute wealth, and the increasing mobility of men, particularly men of substance, the necessity of a single headquarters for all legal purposes, particularly for purposes of taxation, tends to be a less and less useful fiction. In the setting of modern circumstances, the inflexible doctrine of domicile — one man, one home — is in danger of becoming a social anachronism. Recent applications and modifications of this rule to satisfy the vague contours of the due process clause have hardly mitigated its inadequacies for our day. E.g., Frick v. Pennsylvania, 268 U.S. 473Blodgett v. Silberman, 277 U.S. 1Farmers Loan & Trust Co. v. Minnesota, 280 U.S. 204First National Bank v. Maine, 284 U.S. 312.

The facts in this case doubtless present a bizarre story. But in Green's peregrinations from state to state, in the multiplicity of his residences, and in the conflicting appeals which various states made upon his interests from 430*430 time to time, the case is hardly unique nor are analogues to it unlikely to appear in the future. As a result, this Court is asked to determine the conflicting claims of different states of the Union to a share of the estate of individuals who, as a matter of hard fact, at different periods and contemporaneously invoked and enjoyed such benefits as the existence of state governments confer. It is asked to do so by applying an old doctrine of limited validity to modern circumstances whereby, through the elusive search for an often non-existent fact called domicile, only one state to the exclusion of all others would be allowed to levy a tax. The inherent difficulties of this problem have been widely recognized.[2] The old formulas are simply inadequate to the new situation. On the other hand, it is not for this Court in these cases of multiple residences to evolve new taxing policies based on more equitable considerations than the all-or-nothing consequence of the old domiciliary rule.

I am not unaware of the dilemma presented by such a situation as the Dorrance litigation.[3] The circumstances attending the Green estate do not preclude like possibilities. But merely because no other means than litigation have as yet been evolved to adjust the conflicting 431*431 claims of several states in a single estate is not sufficient reason for utilizing as a basis of our jurisdiction oversimplified formulas of the past that have largely lost their relevance in the contemporary context.

The controlling assumption in taking jurisdiction in this case is that the ascertainment of a single domicile for Green is merely the determination of a fact. The auxiliary assumption is the existence of solid danger that the highest courts of four states will ascertain this fact in four different ways. Texas has no standing here except on the basis that three state courts will despoil her of her rights by leaving no assets in the estate out of which to satisfy her claim. But the fact that the political officers of four states make claims to an estate so as to safeguard any possible interest, is hardly a substantial reason for assuming that their judiciaries will sanction the claims.

It is not to be assumed that the state courts will make findings dictated solely by fiscal advantages to their states. The contrary assumption must be made — and the assumption rests on adjudicated experience, e.g., Matter of Trowbridge, 266 N.Y. 283; 194 N.E. 756. To the extent that there is danger that out of the same events four state courts will spell four different domiciles, it is inherent in the search for a domiciliary status. The result is arrived at not through ascertainment of an external fact but by attributions made as a matter of law to satisfy the supposed abstract legal requirement of a single domicile no matter what the actualities of human behavior may be. Even a small change of portions in the admixture of factors which in combination yield the legal concept of domicile, may place the domicile in one state rather than another and, thereby, give estate duties to this state rather than that. But the state treasuries are not alone under powerful motives to exploit the doctrine of domicile. The tax systems of different states have varying degrees of attraction for those in control of an estate, and it is to 432*432 their natural interest to seek a single, inclusive disposition of the elusive issue of domicile by having the original jurisdiction of this Court invoked.

It is hardly an answer that this Court can protect itself against feigned controversies. The difficulty is that in these modern multiple residence situations the issue of domicile is too often an inherently feigned issue. Two state courts can very legitimately find two different domiciles, in that two equally competent tribunals utilizing the same outward facts in the alembic of the same common law concept of domicile may easily distil contradictory conclusions. Merely to avoid such a conflict is not enough to give jurisdiction.[4] The variant that this case presents is the allegation that if the claims of all four states prevail the estate would be more than eaten up and Texas would lose her potential right. This added requirement — the absorption of the entire estate by having numerous states stake out claims — is too readily supplied.

To extend the neat procedural device of interpleader to such a situation is another illustration of transferring a remedy from one legal environment to circumstances qualitatively different. To settle the interests of different claimants to a single res where these interests turn on narrow and relatively few facts and where conflicting claims cannot have equal validity in experience, is one thing; it is a wholly different thing to bring into court 433*433 in a single suit all states which even remotely might assert domiciliary claims against a decedent and where one state court might with as much reason as another find domicile within its state. Certainly when the claim of the moving state is so obviously without basis as this Court has now found in the case of Texas, the linchpin of jurisdiction is gone and the other states should be remitted to appropriate remedies outside this Court. Such a disposition would be a real safeguard against the construction of a suit to give this Court jurisdiction over matters which as such, this Court has already held, are not within our province.[5] To find that the decedent could not, on self-serving grounds, elect to make his home in Texas "where he in fact had no residence" and yet to retain the bill and dispose of it on its merits amounts, in effect, to a declaration of rights on behalf of the estate which could not be adjudicated otherwise than through the screen of a controversy between states.

In this case we do not even have substantial translation into effective legal action of the assertions by the four states of their domiciliary claims. To be sure, the Master has found, as summarized in the Court's opinion, "that each of the four states in good faith asserts that the decedent was domiciled within it at his death." This is a natural attitude of prudence on the part of law officers of states in the case of decedents who had scattered their lives as well as their holdings. But to give this Court the extraordinary jurisdiction which is invoked, there ought to be more than these caveats. There should be manifestation of that hard determination to press a state's claim which is implied in setting the tax-collecting machinery of a state in motion. Allegation, affirmative proof, and finding of such attempts by the various states are lacking. And New York denies without contradiction 434*434 that its procedure for tax levy and collection has been set in operation.[6] These circumstances are, therefore, not comparable to the issues in a conventional interpleader suit brought to forestall conflicting actions. Initiation of litigation is, of course, not a prerequisite to an ordinary interpleader. This only serves to emphasize the inappropriateness of utilizing a remedy invented to settle private controversies of limited scope to the resolution of conflicting governmental interests.

Jurisdictional doubts inevitably lose force once leave has been given to file a bill, a master has been appointed, long hearings have been held, and a weighty report has been submitted. And so, were this the last as well as the first assumption of jurisdiction by this Court of a controversy like the present, even serious doubts about it might well go unexpressed. But if experience is any guide, the present decision will give momentum to kindred litigation and reliance upon it beyond the scope of the special facts of this case. To be sure, the Court's opinion endeavors to circumscribe carefully the bounds of jurisdiction now exercised. But legal doctrines have, in an odd kind of way, the faculty of self-generating extension. Therefore, in pricking out the lines of future development of what is new doctrine, the importance of these issues may make it not inappropriate to indicate difficulties which I have not been able to overcome and 435*435 potential abuses to which the doctrine is not unlikely to give rise.

[State of Texas v. Florida, 307 U.S. 398 (1939)]

Black's Law Dictionary, Sixth Edition, p. 485:

domicileA 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 from 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 ]

26 C.F.R. §301.6362-6

Title 26 
Chapter I 
Subchapter F 
Part 301 
Seizure of Property for Collection of Taxes 
§ 301.6362-6  

(b) Residence of an individual -

(2) 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.

Anderson v. Watt, 138 U.S. 694 (1891)

U.S. v. Mitchell, 88 U.S. 350

Holyfield v. Choctaw, 490 U.S. 30 (1989)

PDFAdmission of Chief Counsel of the Pennsylvania Dept of Revenue about Relationship of Domicile to Income Taxation

Barhydt v. Cross, 256 Iowa 271 (1912)

Upon the whole, therefore, we can have no doubt that the word 'inhabitant,' as used in our statutes when referring to liability to taxation, by an overwhelming preponderance of authority, means 'one domiciled.' While there must be inherent difficulties in the decisiveness of proofs of domicile, the test itself is a certain one; and, inasmuch as every person, by universal accord, must have a domicile,  [*280]  either of birth or acquired, and can have but one, in the present state of society, it would seem that not only would less wrong be done, but less inconvenience would be experienced, by making domicile the test of liability to taxation, than by the attempt to fix some other necessarily more doubtful criterion.  [***14]  . . . The plaintiff does not bring himself within this rule; for, although he might have left the commonwealth with the fixed purpose to abandon it as a residence, he did not leave it on his way to a place certain, which he had determined upon as his future residence, and was proceeding with due despatch; and upon the general rule that, having had a domicile in this commonwealth, he remains an inhabitant, for the purpose of taxation, until he has acquired a new domicile, the intention and fact had not concurred at the time when this tax was assessed.

[Barhydt v. Cross, 256 Iowa 271 (1912)]

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
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 hi

s 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 Appendix, Rule 60(c)

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
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).

U.S.C.S Federal Rules of Civil Procedure 17


A. In General

59. Generally

Since Court of Claims has no jurisdiction over suit by judgment creditor for damages for breach by United States of contract made by it with judgment debtor, though such suit has been authorized by order of state court in which judgment is recovered in accordance with state practice, Federal District Court in which such suit is brought, under § 2 of the Tucker Act [28 USCS § 41(20)] giving district courts jurisdiction “concurrent with the Court of Claims” over certain claims against government founded upon contract, is likewise without jurisdiction; and no jurisdiction in such case is conferred on it by Rule 17(b). United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058, 1941 U.S. LEXIS 1095 (1941).

There is nothing in Rule 17(b) which limits right to bring class suit under Rule 23(a) in proper cases. Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 148 F.2d 403, 16 L.R.R.M. (BNA) 597, 1945 U.S. App. LEXIS 3362 (4th Cir. 1945).

A name may not be sued unless someone is doing business under that name, in which case party or parties so doing business may be sued individually as trading under said name or by trade name. In re Midwest Athletic Club, 161 F.2d 1005, Bankr. L. Rep. (CCH) ¶55918, 1947 U.S. App. LEXIS 3874 (7th Cir. 1947).

Plaintiff’s capacity to sue must first be resolved before court may enter judgment in his favor. Winbourne v. Eastern Air Lines, Inc., 632 F.2d 219, 15 Av. Cas. (CCH) ¶ 18471, 30 Fed. R. Serv. 2d (Callaghan) 604, 1980 U.S. App. LEXIS 13361 (2d Cir. 1980).

Rule 17(b)(1) exception is not applicable when action is based upon state common law rather than state statute, constitutional rights, or laws of United States. Oyler v. National Guard Asso., 743 F.2d 545, 39 Fed. R. Serv. 2d (Callaghan) 1372, 1984 U.S. App. LEXIS 18769 (7th Cir. 1984).

 Fed. R. Civ. P. 17(b) is itself choice of law provision, and does not require that court take additional step of determining if New York choice of law requires application of foreign law as to issue of capacity. Sokolow v. PLO,  Sokolow v PLO (2014, SD NY), 60 F. Supp. 3d 509 (November 19, 2014).

Issue of capacity of plaintiff raises only question of whether plaintiff is free from general disability such as infancy, insanity, or some other form of incompetency, or if he sues in representative capacity, whether he actually possesses character in which he sues and does not go to question of whether or not he has cause of action. De Franco v. United States, 18 F.R.D. 156, 1955 U.S. Dist. LEXIS 4075 (D. Cal. 1955).

Rule 17(b) deals with capacity to bring action and does not affect survivability of private antitrust suit. Cinnamon v. Abner A. Wolf, Inc., 215 F. Supp. 833, 7 Fed. R. Serv. 2d (Callaghan) 356, 1963 Trade Cas. (CCH) ¶70731, 1963 U.S. Dist. LEXIS 9889 (E.D. Mich. 1963).

Causes of action by plaintiffs suing for damages for fraud and misrepresentation of distributor-dealer contracts were severed and plaintiffs ordered to serve amended complaints alleging capacity to sue in conformity with Rule 17(b), and to state with particularity as required by Rule 9(b) where or when alleged fraudulent misrepresentations by defendant took place. Sun-X Glass Tinting, Inc. v Sun-X International, Inc., 227 F. Supp. 365, 8 Fed. R. Serv. 2d (Callaghan) 20A.2, Case 2 (WD Wis 1964).

“Capacity to sue or be sued” as used in Rule 17 refers to general capacity. Poole v. Wolke, 58 F.R.D. 110, 1973 U.S. Dist. LEXIS 15238 (D. Wis. 1973).

Capacity is ability of particular individual or entity to use, or to be brought into, courts of forum; it has no direct correlation to conducting of business, existence of enforceable right, interest, cause of action, claim or defense, or whether party is real party in interest. Johnson v. Helicopter & Airplane Services Corp., 404 F. Supp. 726, 22 Fed. R. Serv. 2d (Callaghan) 610, 1975 U.S. Dist. LEXIS 15295 (D. Md. 1975).

Although manufacturers directly raised issue of capacity and legal existence in their motions to dismiss and that complied with Fed. R. Civ. P. 9(a)’s requirement for specific negative averment, manufacturers’ argument that dismissal was appropriate because consultants failed to allege that manufacturers had legal existence or capacity to be sued was meritless as it was unnecessary to include allegations in pleading of parties’ capacity or legal existence except when required to show jurisdiction. Bradbury Co. v. Teissier-duCros, 387 F. Supp. 2d 1167, 62 Fed. R. Serv. 3d (Callaghan) 1256, 2005-2 Trade Cas. (CCH) ¶74947, 2005 U.S. Dist. LEXIS 21001 (D. Kan. 2005).

U.S. Bankruptcy Court for Northern District of Indiana, Hammond Division, agrees with concept that capacity issues under Fed. R. Civ. P. 17(b) may be raised by motion to dismiss under Fed. R. Civ. P. 12(b)(6). Valich v. Trutko-Clayton (In re Trutko-Clayton), 384 B.R. 813, 2007 Bankr. LEXIS 4500 (Bankr. N.D. Ind. 2007).

60. Capacity of individuals

Capacity of party to maintain action under Federal Employers’ Liability Act (45 USCS §§ 51 et seq.) is governed by provisions of that Act and not by Federal Rules. Kreiger v. Lehigh Valley R. Co., 1 F.R.D. 601, 1939 U.S. Dist. LEXIS 1680 (D.N.Y. 1939).

Under common law, father would be entitled to maintain action for all claims provided by Fair Labor Standards Act (29 USCS §§ 201 et seq.) for his minor sons as employees of defendant, and at common law father would be real party in interest in such action, and under South Carolina statute mother also would be necessary party to action. Constance v. Gosnell, 62 F. Supp. 253, 10 Lab. Cas. (CCH) ¶62771, 5 Wage & Hour Cas. (BNA) 602, 1945 U.S. Dist. LEXIS 1952 (D.S.C. 1945).

Felon imprisoned in California state prison was empowered to sue in federal court under 42 USCS § 1983 (deprivation of civil rights statute), though state statute provides that all civil rights of such person are suspended during term of sentence. McCollum v. Mayfield, 130 F. Supp. 112, 1955 U.S. Dist. LEXIS 3336 (D. Cal. 1955).

In action by state prisoners under 42 USCS § 1983, Missouri “civil death” statute rendering prisoners incapable of suing did not bar suit, despite Rule 17(b) making law of domicile determinant as to capacity of individuals to sue, since federal statute (42 USCS § 1983) allows suit by any citizen of United States or any other person in jurisdiction thereof. Beishir v. Swenson, 331 F. Supp. 1224, 1970 U.S. Dist. LEXIS 12498 (W.D. Mo. 1970).

Substantive law of state where fee agreement which is asserted as basis for entitlement to finder’s fee was executed and where sale with ready, willing, and able buyers occurred governs plaintiff’s capacity to sue. Baron & Co. v. Bank of New Jersey, 504 F. Supp. 1199, 1981 U.S. Dist. LEXIS 10237 (D.N.J. 1981).

Revival of creditor’s corporate status during pendency of adversary proceeding and before trial retroactively validated filing of complaint and cured any timeliness issues, as Bankruptcy Rules pertaining to deadlines for filing complaints to determine denial of discharge or denial of discharge of particular debt were procedural, and not statutes of limitation. Westland Architecture & Dev. Corp. v. Matthews (In re Matthews), 2016 Bankr. LEXIS 3609 (Bankr. C.D. Cal. Oct. 3, 2016).

61. —As depending on law of domicile

Even if prisoner, alleged domiciliary of Massachusetts serving life sentence in New Jersey, who was suing for libel in federal court in New York, lacked capacity to sue under New York statute providing that person sentenced to life imprisonment is to be deemed civilly dead, it was error to apply New York law since Rule 17(b) required application of law of plaintiff’s domicile; since there was no showing that under law of his domicile plaintiff was incapable of suing, his action should not have been dismissed. Urbano v. News Syndicate Co., 358 F.2d 145, 10 Fed. R. Serv. 2d (Callaghan) 345, 1966 U.S. App. LEXIS 6893 (2d Cir.), cert. denied, 385 U.S. 831, 87 S. Ct. 68, 17 L. Ed. 2d 66, 1966 U.S. LEXIS 699 (1966).

Civil rights statute (42 USCS § 1983), which affords right to sue to any citizen of United States who has been deprived of any right, privilege, or immunity, prevails over conflicting policy purportedly expressed in Rule 17(b) when applied in light of rationale of Virginia statutes which provide for appointment of committee which may sue and be sued in respect to all claims in favor of or against person convicted of felony. Almond v. Kent, 459 F.2d 200, 15 Fed. R. Serv. 2d (Callaghan) 1531, 1972 U.S. App. LEXIS 10178 (4th Cir. 1972).

Under Federal Tort Claims Act (FTCA), 28 USCS § 1346(b)(1), applicable law was whole law of State where act or omission occurred, and not law of plaintiff Florida family members’ domicile under Fed. R. Civ. P. 17, thus, Rule 17 did not apply to FTCA case filed by family members against defendant United States on claims that air traffic controllers caused plane crash in Texas, and did not, thorough Florida law as to survivorship actions, preclude family members from bringing FTCA claim against United States. Schippers v. United States, 715 F.3d 879, 24 Fla. L. Weekly Fed. C 246, 85 Fed. R. Serv. 3d (Callaghan) 806, 2013 U.S. App. LEXIS 9068 (11th Cir. 2013).

Capacity of individual, not acting in representative character, to sue or be sued in federal court is ordinarily to be determined by law of his domicile, and if, by law of person’s domicile, that person can sue irrespective of actual mental incompetence, he may do so in federal court. Donnelly v. Parker, 486 F.2d 402, 158 U.S. App. D.C. 335, 17 Fed. R. Serv. 2d (Callaghan) 959, 1973 U.S. App. LEXIS 8266 (D.C. Cir. 1973).

Capacity to sue of assignee of claim for damages for violation of Antitrust Laws (15 USCS §§ 1 et seq.) is governed by law of plaintiff’s domicile. Momand v. Twentieth-Century Fox Film Corp., 37 F. Supp. 649, 1941 U.S. Dist. LEXIS 3535 (D. Okla. 1941).

Employer’s right to sue tortfeasor as subrogee of employee’s beneficiary under workmen’s compensation act was matter of substance, and rule of Erie Railroad Co. v Tompkins was equally as pertinent as Rule 17(b). Melella v. Savage, 59 F. Supp. 258, 1945 U.S. Dist. LEXIS 2526 (D. Del. 1945).

In action against auto manufacturer by corporate auto dealer and its major stockholder, where defendant manufacturer argued that stockholder was not real party in interest as to damages claim for breach of contract for conveyance of real estate, capacity of major stockholder to sue was determined by law of his domicile (Pennsylvania) which was clear that plaintiff may sue in his own name without joining as plaintiff any person beneficially interested, when such plaintiff is acting in fiduciary or representative capacity, or is person with whom or in whose name contract has been made for benefit of another. Rea v Ford Motor Co. (1972, WD Pa) 355 F Supp 842, 1973-1 CCH Trade Cases P 74332, vacated on other grounds (1974, CA3 Pa) 497 F2d 577, 1974-1 CCH Trade Cases P 75029, cert den (1974) 419 US 868, 95 S Ct 126, 42 L Ed 2d 106 and (criticized in Salem Mall Lincoln Mercury, Inc. v Hyundai Motor Am. (1998, SD Ohio) 1998 US Dist LEXIS 22898) and (criticized in Bronx Chrysler Plymouth, Inc. v Chrysler Corp. (2002, SD NY) 212 F Supp 2d 233) and (criticized in Jackson v Volvo Trucks N. Am. (2006, CA10 Utah) 462 F3d 1234).

In civil rights action for deprivation of rights of plaintiffs’ decedent allegedly resulting in his death, capacity of plaintiffs to sue would be determined by law of plaintiffs’ domicile, and where it was inferable from affidavit that plaintiffs’ decedent was domiciled in Tennessee at time of his death, his personal representatives would likewise be domiciled there. Troutman v. Johnson City, 392 F. Supp. 556, 1973 U.S. Dist. LEXIS 13855 (E.D. Tenn. 1973).

Under Rule 17(b), capacity of Attorney General of Alabama to institute and to prosecute challenge to constitutionality of state statute must be determined by state of Alabama. Baxley v. Rutland, 409 F. Supp. 1249, 1976 U.S. Dist. LEXIS 16204 (M.D. Ala. 1976).

Where defendants were served with summons and copy of civil complaint after their convictions but before they began serving their sentences, defendants had capacity to be sued under Virginia law, under Va. Code Ann. § 53.1-223. Buchanan County v. Blankenship, 406 F. Supp. 2d 642, 63 Fed. R. Serv. 3d (Callaghan) 881, 2005 U.S. Dist. LEXIS 35012 (W.D. Va. 2005).

Because defendant Maryland contractor company’s charter had been forfeited under Md. Code Ann., Corp. & Ass’ns § 3-503, defendant principal of company, who was still operating company, was necessary party under Fed. R. Civ. P. 19(a), as determined under Maryland law according to Fed. R. Civ. P. 17(b), to plaintiff homeowners’ suit for breach of construction contract. Djourabchi v. Self, 240 F.R.D. 5, 67 Fed. R. Serv. 3d (Callaghan) 136, 2006 U.S. Dist. LEXIS 90136 (D.D.C. 2006).

Father, acting as “next friend” of his minor child, had standing to sue to redress infringement of his child’s First Amendment and due process rights resulting from removal of series of books from school libraries within school district because, under state law, made applicable to instant case under Fed. R. Civ. P. 17(b), child could not bring suit himself due to disability of nonage minors. ACLU of Fla., Inc. v. Miami-Dade County Sch. Bd., 439 F. Supp. 2d 1242, 19 Fla. L. Weekly Fed. D 877, 2006 U.S. Dist. LEXIS 50502 (S.D. Fla. 2006), remanded, 557 F.3d 1177, 21 Fla. L. Weekly Fed. C 1467, 2009 U.S. App. LEXIS 2253 (11th Cir. 2009).

In museums’ declaratory judgment suit against claimant to two paintings, seeking declaration that claimant had no valid claim of ownership in two disputed paintings, claimant had capacity to be sued under Fed. R. Civ. P. 17(b)(1) because under laws of Germany, which was his domicile, declaratory judgment suit could proceed against claimant in his individual capacity. Museum of Modern Art v. Schoeps, 549 F. Supp. 2d 543, 2008 U.S. Dist. LEXIS 30717 (S.D.N.Y. 2008).

Unpublished decision: While Fed. R. Civ. P. 17(c) does not provide standard for determining competency, Fed. R. Civ. P. 17(b) provides that capacity of party to sue or be sued shall be determined by law of party’s domicile; thus, in context of someone seeking to pursue litigation in federal court on his own behalf, term incompetent person in Rule 17(c) refers to person without capacity to litigate under law of his state of domicile. Richards v. Duke Univ., 166 Fed. Appx. 595, 2006 U.S. App. LEXIS 1719 (3d Cir. 2006).

Unpublished decision: Where plaintiff inmate alleged defendants, seller of house inmate bought, seller’s attorney, judge, unnamed county sheriff, and sheriff’s department, conspired to unlawfully use temporary restraining order to retrieve wine collection left in house by seller, under Fed. R. Civ. P. 17(b), capacity of sheriff’s department to be sued was governed by state law, and because under state law sheriff’s departments were not usually considered legal entities subject to suit, there was no error in district court’s decision that inmate failed to state claim against sheriff’s department. Lawal v. Fowler, 196 Fed. Appx. 765, 2006 U.S. App. LEXIS 20565 (11th Cir. 2006).

62. Capacity of corporations

Cooperative corporation, not being real party in interest, may not maintain action for damages sustained by its members individually if state of incorporation does not grant such organizations right to sue in their corporate name upon causes of action owned by members. Farmers Co-op. Farmers Co-op. Oil Co. v. Socony-Vacuum Oil Co., 133 F.2d 101, 1942 U.S. App. LEXIS 2460 (8th Cir. 1942).

Rule 17(b) simply codifies well established principle that issue of corporation’s capacity to sue is question of substantive law. Chrysler Credit Corp. v. Superior Dodge, Inc., 538 F.2d 616, 22 Fed. R. Serv. 2d (Callaghan) 19, 1976-2 Trade Cas. (CCH) ¶61011, 1976 U.S. App. LEXIS 7841 (4th Cir. 1976), cert. denied, 429 U.S. 1042, 97 S. Ct. 743, 50 L. Ed. 2d 754, 1977 U.S. LEXIS 247 (1977).

Corporation originally organized under law of Missouri, having forfeited its corporate charter, lacked capacity to maintain antitrust action in District Court. Moore v. Matthew's Book Co., 597 F.2d 645, 1979-1 Trade Cas. (CCH) ¶62614, 1979 U.S. App. LEXIS 14921 (8th Cir. 1979).

Rule 17 prevails over antitrust law and requires application law of state where corporation is incorporated to determine whether it has capacity to sue. Community Electric Service, Inc. v National Electrical Contractors Ass’n (1989, CA9 Cal) 869 F2d 1235, 131 BNA LRRM 2408, 111 CCH LC P 11110, 1989-1 CCH Trade Cases P 68475, 13 FR Serv 3d 743, cert den (1989) 493 US 891, 110 S Ct 236, 107 L Ed 2d 187 and (ovrld in part on other grounds by Townsend v Holman Consulting Corp. (1990, CA9 Cal) 914 F2d 1136, 91 Daily Journal DAR 4058, 17 FR Serv 3d 801) and (ovrld in part on other grounds by Townsend v Holman Consulting Corp. (1991, CA9 Cal) 929 F2d 1358).

Since county sheriff’s department lacks capacity to be sued under Alabama law, District Court correctly dismissed pretrial detainee’s case against it. Dean v. Barber, 951 F.2d 1210, 22 Fed. R. Serv. 3d (Callaghan) 18, 1992 U.S. App. LEXIS 910 (11th Cir. 1992), app. after remand sub. nom., Dean v. Bailey, 12 F.3d 219, 1993 U.S. App. LEXIS 33506 (11th Cir. 1993).

Rule 17(b) is declaratory of existing law that right of suit by or against corporation depends upon laws of state in which incorporated. Sedgwick v. Beasley, 173 F.2d 918, 84 U.S. App. D.C. 325, 1949 U.S. App. LEXIS 2948 (D.C. Cir. 1949).

In antitrust action, plaintiff corporation has capacity to sue, even though it has been assigned antitrust damage claim, because state law providing that action for penalty is not assignable has no application. Isidor Weinstein Inv. Co. v. Hearst Corp., 303 F. Supp. 646, 13 Fed. R. Serv. 2d (Callaghan) 276, 1969 Trade Cas. (CCH) ¶72953, 1969 U.S. Dist. LEXIS 13084 (N.D. Cal. 1969).

Capacity of corporation to bring suit in District Court is determined by law of state of its incorporation, and in action brought by South Carolina corporation seeking to have certain contracts for purchase of cotton declared valid and specifically in force, plaintiff had capacity to bring suit in District Court in Georgia, where plaintiff was incorporated under laws of South Carolina, and where none of parties contended that corporate law of South Carolina did not allow corporation power to sue. R. N. Kelly Cotton Merchant, Inc. v. York, 379 F. Supp. 1075, 1973 U.S. Dist. LEXIS 11445 (M.D. Ga. 1973), aff'd, 494 F.2d 41, 14 U.C.C. Rep. Serv. (CBC) 890, 1974 U.S. App. LEXIS 8552 (5th Cir. 1974).

It has long been held that capacity of corporation to sue or be sued in federal court is determined by law under which it is organized, and Rule 17(b) applies only to capacity of corporation to sue or be sued in those actions coming to federal courts in exercise of their jurisdiction in cases excluding diversity jurisdiction. Weinstock v. Sinatra, 379 F. Supp. 274, 1974 U.S. Dist. LEXIS 7939 (C.D. Cal. 1974).

In action brought under Miller Act, capacity of plaintiff corporation to be sued would be governed by Illinois law where plaintiff corporation was one organized under laws of Illinois. United States use of Triangle Landscaping Corp. v. Home Ins. Co., 403 F. Supp. 320, 1975 U.S. Dist. LEXIS 15814 (N.D. Ill. 1975).

Capacity of city, a municipal corporation, to sue state must be determined by reference to state law. 426 F. Supp. 919, 10 Env't Rep. Cas. (BNA) 1564.

Rule 17(b) does not require that corporation itself be sued in private antitrust action but only comes into play when injured party in such action choose to sue such corporation directly. Tondas v. Amateur Hockey Asso., 438 F. Supp. 310, 1978-1 Trade Cas. (CCH) ¶61849, 1977 U.S. Dist. LEXIS 13601 (W.D.N.Y. 1977).

Foreign corporation’s capacity to sue in federal court in diversity action is determined by state law. Farris v. Sambo's Restaurants, Inc., 498 F. Supp. 143, 1980 U.S. Dist. LEXIS 14062 (N.D. Tex. 1980).

Pursuant to Rule 17(b), newspapers which are wholly owned subsidiaries of defendant corporation are properly dismissed from action, where newspapers are not separate corporations but are simply “d.b.a.s” of corporation, and their inclusion constitutes mere surplusage. Laxalt v. McClatchy, 622 F. Supp. 737, 12 Media L. Rep. (BNA) 1377, 1985 U.S. Dist. LEXIS 13813 (D. Nev. 1985).

Foundation organized as trust under laws of Liechtenstein has capacity under Rule 17(b) to sue securities firm for alleged violations of 7 USCS §§ 6b and 6odespite firm’s assertion that Illinois law indicating that trust cannot sue on its own behalf should be applied, where Foundation is actually corporate form of association under Liechtenstein law. Khalid Bin Alwaleed Foundation v. E.F. Hutton & Co., 709 F. Supp. 815, 1989 U.S. Dist. LEXIS 2628 (N.D. Ill. 1989).

Claim that plaintiff, Canadian corporation, lacked capacity to sue was denied absent Canadian authority that corporation lacked capacity to sue in federal court under Fed. R. Civ. P. 17(b). Healthtrac, Inc. v. Sinclair, 302 F. Supp. 2d 1125, Fed. Sec. L. Rep. (CCH) ¶ 92686, Fed. Sec. L. Rep. (CCH) ¶92686, 2004 U.S. Dist. LEXIS 1751 (N.D. Cal. 2004).

District court had jurisdiction and plaintiffs’ motion to remand was denied where one defendant (unincorporated division of its parent company) was found, under state law, not to have been proper party to suit because it was not legal entity or “person” and, after it was dismissed from suit, there was complete diversity between parties. Doe v. Bayer Corp., 344 F. Supp. 2d 466, 2004 U.S. Dist. LEXIS 22893 (M.D.N.C. 2004).

Lanham Act action brought by company and licensee for trademark infringement was dismissed because pursuant to Fed. R. Civ. P. 17(b) and 805 Ill. Comp. Stat. 5/13.70 company did not have capacity to maintain claim as it had not registered with state to do business as foreign corporation, and fact that it was doing business as corporation registered with state was immaterial because corporation was not party to action, and licensee lacked standing under 15 USCS §§ 1114(1), 1127 as it did not own any rights to mark at issue. Cent. Mfg. Co. v. Pure Fishing, Inc., 392 F. Supp. 2d 1046, 2005 U.S. Dist. LEXIS 22136 (N.D. Ill. 2005).

Two alleged conspirators could not be sued in direct purchasers’ antitrust case against alleged conspirators since they merged into one alleged conspirator that existed as surviving entity; as result, two alleged conspirators lacked  Fed. R. Civ. P. 17(b) capacity to be sued, as law of state where forum court was located guided inquiry, and applicable Illinois law, 805 ILCS 180/37-30(a)(1), dictated that separate existence of limited liability company ceased to exist when merger takes effect.  In re: Dairy Farmers of Am., Inc., 767 F. Supp. 2d 880, 2011 U.S. Dist. LEXIS 13307 (N.D. Ill. 2011).

Unpublished decision: Granting debtor’s motion to set aside default judgment, under  Fed. R. Civ. P. 55(c) and  60(b), would have been futile because other corporations lacked capacity to file answers to bankruptcy trustee’s second amended complaint because trustee provided evidence that none of other corporations were in good standing with California Secretary of State, no evidence was provided to contrary, and, under California law, corporation that was not in good standing could have neither prosecuted lawsuit nor defended one; no default judgment was entered against debtor.  Kendall v. State (In re Northgate Ctr., Inc.), 2009 Bankr. LEXIS 2475 (Bankr. N.D. Cal. May 1, 2009).

Debtor waived his right to claim that LLC that joined two other creditors in filing involuntary bankruptcy petition under Chapter 7 of Bankruptcy Code was ineligible to act as petitioning creditor because Oklahoma Secretary of State terminated its right to conduct business before petition was filed; capacity to sue was not same thing as standing to sue, capacity could be waived under Fed. R. Civ. P. 17 and Fed. R. Bankr. P. 7017, debtor waived LLC’s lack of capacity because he did not raise that defense for thirteen months after case was filed, and both LLC that was terminated before petition was filed and LLC that was terminated after petition was filed met qualifications under 11 U.S.C.S. § 303 for acting as petitioning creditors. In re Agrawal, 2017 Bankr. LEXIS 3771 (Bankr. W.D. Okla. Oct. 30, 2017).

Defendant, alleged in complaint to be division of company, was dismissed from suit because, under District of Columbia law, unincorporated divisions of corporation lacked legal capacity to be sued. Smartdoor Holdings, Inc. v. Edmit Indus.,  Smartdoor Holdings, Inc. v Edmit Indus. (2015, DC Dist Col), 78 F. Supp. 3d 275 (January 23, 2015).

63. —Dissolved or merged corporation

In action brought by Pennsylvania corporation to recover for damages to pipeline owned at time of damage by corporation which was later merged into plaintiff corporation, law of Pennsylvania would determine whether plaintiff could sue to recover pre-merger damages. Sun Pipe Line Co. v. Altes, 511 F.2d 280, 51 Oil & Gas Rep. 21, 1975 U.S. App. LEXIS 16050 (8th Cir. 1975).

Under Rule 17(b) corporation which has forfeited its charter but has not been completely dissolved, has capacity to be sued even though government’s initial complaint was not filed until more than 3 years after forfeiture of its charter, since under Delaware law corporation with forfeited charter is not completely dead for all purposes, but is merely in “state of coma,” during which it is still subject to suit, even if suit is brought more than three years after charter forfeiture. United States v. Northeastern Pharm. & Chem. Co., 810 F.2d 726, 25 Env't Rep. Cas. (BNA) 1385, 17 Envtl. L. Rep. 20603, 1986 U.S. App. LEXIS 36423 (8th Cir. 1986), cert. denied, 484 U.S. 848, 108 S. Ct. 146, 98 L. Ed. 2d 102, 26 Env't Rep. Cas. (BNA) 1856, 1987 U.S. LEXIS 4136 (1987).

Illinois statute permitting lawsuit against dissolved corporation to be commenced within five years of dissolution, rather than federal law, applied to suit under CERCLA for cleanup costs; CERCLA is federal law and Rule 17(b) expressly states that corporation’s capacity to sue and be sued shall be determined by law under which it was organized. Citizens Elec. Corp. v. Bituminous Fire & Marine Ins. Co., 68 F.3d 1016, 26 Envtl. L. Rep. 20055, 1995 U.S. App. LEXIS 29771 (7th Cir. 1995).

In suit challenging denial of loan assistance applications for energy-efficient vehicles, defunct corporation lacked capacity to sue to obtain reconsideration and granting of its loan application because under applicable California law, dissolved corporation continued to exist only for purpose of winding up its affairs, and prosecuting and defending actions by or against it but not for purpose of continuing business except so far as necessary for winding up thereof, and relief sought would effectively revitalizing its business operations, rather than winding them up.  XP Vehicles, Inc. v. DOE, 118 F. Supp. 3d 38, 2015 U.S. Dist. LEXIS 90998 (D.D.C. 2015).

Dismissal of appeal was required because only remaining appellant, Cayman Islands corporation, had been stricken from Cayman Register of Companies before notice of appeal was filed and therefore lacked capacity to sue or be sued. FBME Ltd. v. Mnuchin, 709 Fed. Appx. 4, 2017 U.S. App. LEXIS 21046 (D.C. Cir. 2017), reh'g denied, 2017 U.S. App. LEXIS 21678 (D.C. Cir. Oct. 31, 2017).

Subsidiary that initiated tender offer and subsequently merged into acquired corporation was properly dismissed from suit alleging nondisclosures in tender offer recommendation statement; under Delaware law, subsidiary ceased to exist after merger was consummated, and its rights and liabilities belonged to surviving corporation. Varjabedian v. Emulex Corp., 888 F.3d 399, Fed. Sec. L. Rep. (CCH) ¶ 100086, Fed. Sec. L. Rep. (CCH) ¶100086, 2018 U.S. App. LEXIS 10000 (9th Cir. 2018), reh'g denied, reh'g, en banc, denied, 2018 U.S. App. LEXIS 25363 (9th Cir. Sept. 6, 2018), cert. granted, 139 S. Ct. 782, 202 L. Ed. 2d 511, 2019 U.S. LEXIS 8 (2019), cert. dismissed, 139 S. Ct. 1407, 203 L. Ed. 2d 635, 2019 U.S. LEXIS 2942 (2019).

As under New York law, dissolved corporation may maintain suit to collect its assets, New York corporation has capacity to sue in federal courts even after dissolution. Display Stage Lighting Co. v. Century Lighting, Inc., 41 F. Supp. 937, 52 U.S.P.Q. (BNA) 163, 1941 U.S. Dist. LEXIS 2572 (D.N.Y. 1941).

Under Rule 17(b), question whether maintenance of civil suit against Illinois corporation may be instituted three and one half years after formal dissolution of such corporation must be determined by law of Illinois. Stone v. Gibson Refrigerator Sales Corp., 366 F. Supp. 733, 1973 U.S. Dist. LEXIS 10859 (E.D. Pa. 1973).

In tort action brought against defendant corporations, one of which was dissolved Georgia corporation, Georgia law would be applicable with respect to question of whether dissolved corporation might be impleaded as third-party defendant after 2-year period of extension under Georgia statute had expired. Litts v. Refrigerated Transport Co., 375 F. Supp. 675, 19 Fed. R. Serv. 2d (Callaghan) 22, 1973 U.S. Dist. LEXIS 11009 (M.D. Pa. 1973).

Rule 17(b), providing that capacity of corporation to sue or be sued is to be determined by law under which it was organized, applies to dissolved as well as active corporations; Rule 17(b) was meant to be adoption of local rules on capacity to sue and be sued, not an equation of capacity with “doing business” concept; corporation organized under laws of Delaware which had voluntarily dissolved did not have capacity to be sued in products liability action instituted after three-year period for winding up affairs of corporation had expired since, notwithstanding corporation’s failure to surrender certificate of authority to do business in New York, its capacity to be sued was governed only by state of its organization, and once corporation was dissolved in Delaware and statutory period for winding up its affairs had expired, corporation ceased to exist for purposes of suit in any federal court. Johnson v. Helicopter & Airplane Services Corp., 404 F. Supp. 726, 22 Fed. R. Serv. 2d (Callaghan) 610, 1975 U.S. Dist. LEXIS 15295 (D. Md. 1975).

Dissolved corporation that has tangible assets that can be reached is liable for response costs, and state corporate capacity statutes that would hold to contrary, as well as FRCP 17(b), are preempted. 22 Envtl. L. Rep. 21352.

Capacity of dissolved corporation to sue or be sued is controlled by law of state in which it was incorporated. Old Republic Ins. Co. v. Hansa World Cargo Serv., Inc., 170 F.R.D. 361, RICO Bus. Disp. Guide ¶9245, 1997 U.S. Dist. LEXIS 2050 (S.D.N.Y. 1997).

Where dissolved race systems company brought action for patent infringement against competitor, court found that Fed. R. Civ. P. 17(b) did not prevent race systems company, as dissolved corporation, from bringing lawsuit. Race Safe Sys. v. Indy Racing League, 251 F. Supp. 2d 1106, 66 U.S.P.Q.2d (BNA) 1536, 2003 U.S. Dist. LEXIS 4136 (N.D.N.Y. 2003).

U.S.’ motion to dismiss refund suit under 26 USCS § 7422(a) by dissolved corporation, its subsidiaries, and two other corporations was denied as to corporation because corporation had capacity under Fed. R. Civ. P. 9(a), 17(b) to maintain refund suit since suit was sufficiently related to earlier refund claim filed with IRS so as to constitute one proceeding for purposes of Kan. Stat. Ann. § 17-6807, but was granted as to other corporations because they were not common parent and could not maintain refund suit on behalf of consolidated return group. 96 A.F.T.R.2d (RIA) 7465, 2005 U.S. Dist. LEXIS 32783.

Motion to remand was granted because dissolved oil company was properly named as defendant and its consent to removal was necessary, company was not fraudulently joined because there was “glimmer of hope” of success against it and claims were not misjoined because they fell squarely within four corners of Fed. R. Civ. P. 20(a). Ryan Envtl., Inc. v. Hess Oil Co., 718 F. Supp. 2d 719, 2010 U.S. Dist. LEXIS 53876 (N.D. W. Va. 2010).

In case in which employer was dissolved District of Columbia corporation, pursuant to D.C. Code § 29-221.18, employee could serve Fed. R. Civ. P. 30(b)(6) notice of deposition on employer in same way that she could serve Rule 30(b)(6) notice on existing corporation. Simms v. Ctr. for Corr. Health & Policy Studies, 272 F.R.D. 36, 78 Fed. R. Serv. 3d (Callaghan) 733, 2011 U.S. Dist. LEXIS 4991 (D.D.C. 2011).

Unpublished decision: Texas law resulted in brief split of legal and beneficial titles to mark when cross-appellee’s corporate privileges were forfeited but that split was only temporary; when company subsequently forfeited its charter, Texas law deemed company to have been dissolved under Tex. Bus. Corp. Act art. 7.12; one of effects of dissolution was to rejoin legal and beneficial titles, and as cross-appellee regained full right to sue or defend on mark by company sold mark to another party, other party likewise had full power when he licensed mark and joined lawsuit. Guar. Residential Lending, Inc. v. Homestead Mortg. Co., L.L.C., 291 Fed. Appx. 734, 2008 FED App. 0541N, 2008 U.S. App. LEXIS 19025 (6th Cir. 2008).

Diversity action had to be dismissed for lack of subject matter jurisdiction because signatory to contract and real party in interest had forfeited corporate privileges for failure to pay franchise taxes, thus could not sue in Texas, and was outside three-year survival period; moreover, alleged parent company could not be joined as real party in interest because it was not party to contract, had separate corporate existence, and was not identified as parent company on franchise tax report. Construtodo, S.A. de C.V. v. Conficasa Holdings, Inc.,  Construtodo, S.A. de C.V. v Conficasa Holdings, Inc. (2014, SD Tex), 2014 U.S. Dist. LEXIS 13782 (January 31, 2014).

Revival of creditor’s corporate status during pendency of adversary proceeding and before trial retroactively validated filing of complaint and cured any timeliness issues, as Bankruptcy Rules pertaining to deadlines for filing complaints to determine denial of discharge or denial of discharge of particular debt were procedural, and not statutes of limitation. Westland Architecture & Dev. Corp. v. Matthews (In re Matthews), 2016 Bankr. LEXIS 3609 (Bankr. C.D. Cal. Oct. 3, 2016).

B. Capacity “In All Other Cases”

1. In General

64. Generally

Capacity to sue is to be judged by law of state in which federal district court sits, but this is only true when right to object thereto has not been waived; defendant waived issue of plaintiff’s capacity when he waited for more than seven months after second amended complaint and more than three months after answer on merits were filed, and after statute of limitations of state other than forum state had run, before making his motion to dismiss because of lack of capacity to sue. Young v. Pattridge, 40 F.R.D. 376, 10 Fed. R. Serv. 2d (Callaghan) 69, 1966 U.S. Dist. LEXIS 10691 (N.D. Miss. 1966).

Unpublished decision: Under Fed. R. Civ. P. 17(b), capacity to sue or be sued was be determined by law of state in which district court was held and sheriff’s departments and police departments were not usually considered legal entities subject to suit. Robinson v. Hogansville Police Dep't, 159 Fed. Appx. 137, 2005 U.S. App. LEXIS 28040 (11th Cir. 2005).

65. Controlling effect of state law

Federal district court which has jurisdiction by virtue of diversity must give effect to conflict of law rule of state in which action is brought. Natale v. Upjohn Co., 356 F.2d 590, 3 U.C.C. Rep. Serv. (CBC) 133, 1966 U.S. App. LEXIS 7148 (3d Cir. 1966).

Congress clearly mandated that courts follow Federal Rules of Civil Procedure when adjudicating CERCLA claims; therefore, state capacity statutes, as opposed to liability statutes, are not preempted by CERCLA. Witco Corp. v. Beekhuis, 38 F.3d 682, 39 Env't Rep. Cas. (BNA) 1545, 25 Envtl. L. Rep. 20007, 1994 U.S. App. LEXIS 29352 (3d Cir. 1994).

That defendant, alleged in complaint to be division of company, was allegedly Canadian entity did not change capacity analysis because capacity to be sued was based on law of state where court was located. Smartdoor Holdings, Inc. v. Edmit Indus.,  Smartdoor Holdings, Inc. v Edmit Indus. (2015, DC Dist Col), 78 F. Supp. 3d 275 (January 23, 2015).

Even though corporation has capacity to sue if it is entitled to sue according to the law under which it was organized, it still may be deprived of federal forum for noncompliance with corporate registration or other door-closing statute of forum state. Flour Mills of America, Inc. v. Pace, 75 F.R.D. 676, 1977 U.S. Dist. LEXIS 15812 (E.D. Okla. 1977).

State “door-closing” statute prohibiting corporation which transacts business in state from suing in state court unless it has obtained authority to transact business there is clearly substantive legal rule, and as such, must be given precedence over Rule 17(b). McCollum Aviation, Inc. v. Cim Associates, Inc., 438 F. Supp. 245, 1977 U.S. Dist. LEXIS 13829 (S.D. Fla. 1977).

On state law claims, capacity to sue is determined by state law. Comstock v. Pfizer Retirement Annuity Plan, 524 F. Supp. 999, 2 Employee Benefits Cas. (BNA) 2050, 1981 U.S. Dist. LEXIS 14965 (D. Mass. 1981).

Because court could not proceed in civil forfeiture proceedings until one of parties filed suggestion of death concerning claimant and since under state law, which was made applicable to federal proceedings by Fed. R. Civ. P. 17(b), all claims survived death, court ordered parties to address claimant’s death so that substitution could be made under Fed. R. Civ. P. 25. United States v. Currency $ 11,331, 482 F. Supp. 2d 873, 2007 U.S. Dist. LEXIS 28503 (E.D. Mich. 2007).

Unpublished decision: Under Fed. R. Civ. P. 17(b), state law controlled issue, in 42 USCS § 1983 action, of whether county police department was entity that was subject to suit. Lovelace v. Dekalb Cent. Prob., 144 Fed. Appx. 793, 2005 U.S. App. LEXIS 16090 (11th Cir. 2005).

Unpublished decision: County board of education was properly dismissed as party under Fed. R. Civ. P. 12(b)(6) and 17 in former employee’s action under 42 USCS § 1983 because under Georgia law, county board of education was not body corporate and did not have capacity to sue or to be sued. Mason v. Clayton County Bd. of Educ., 334 Fed. Appx. 191, 2009 U.S. App. LEXIS 10491 (11th Cir. 2009).

Unpublished decision: Fire victim’s claims against N.Y.C. Fire Department (NYFD), Police Department (NYPD), and Emergency Medical Services (EMS) unit failed as matter of law because pursuant to Fed. R. Civ. P. 17(b), capacity of government agency to sue or be sued must be determined by law of State in which district court is held and State had neither expressly given nor necessarily implied that NYPD, FDNY or EMS could sue or be sued in their individual capacities. Petway v. City of New York, 2005 U.S. Dist. LEXIS 37783 (E.D.N.Y. Sept. 2, 2005).

66. —What constitutes “law of the state”

In context of a 28 USCS § 1404(a) transfer between district courts, language of Rule 17(b) refers to law of transferor state rather than to law of transferee state. Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945, 1964 U.S. LEXIS 1537 (1964).

In ascertaining state law under Rule 17(b) as in cases arising under doctrine of Erie R. Co. v Tompkins, 304 US 65, 82 L Ed 1188, 58 S Ct 817, 114 ALR 1487, intermediate state court decisions must be heeded by federal court, absent ruling by highest state court, unless federal court is convinced by other persuasive data that highest court of state would decide otherwise. Cooper v. American Airlines, Inc., 149 F.2d 355, 1945 U.S. App. LEXIS 2596 (2d Cir. 1945).

“State law” required to be applied by federal courts includes common law of state as well as state statutory law; whenever Federal Rules require application in District of Columbia of state law as distinguished from federal law, law intended is law which is locally applicable within district and not that which is applicable generally there and elsewhere as federal law. Fennell v. Bache, 123 F.2d 905, 74 App. D.C. 247, 1941 U.S. App. LEXIS 2845 (D.C. Cir.), cert. denied, 314 U.S. 689, 62 S. Ct. 359, 86 L. Ed. 551, 1941 U.S. LEXIS 46 (1941).

Under 28 USCS § 1404(a) transferee district court must apply laws of state of transferor district court and Rule 17(b) must be interpreted so that capacity to sue would be governed by laws of transferor state. Glazer v. Colonial Village Corp., 232 F. Supp. 892, 1964 U.S. Dist. LEXIS 8347 (E.D. Tenn. 1964).

67. Miscellaneous

Where Indian nation sued Director of Arizona Department of Gaming on basis of federal common law, in disregard of his lack of capacity to be sued under Arizona law, but argued that he had no capacity to counterclaim under Arizona law, as this would be inequitable, district court held he could participate as normal litigant, including by asserting counterclaims. Tohono O'odham Nation v. Ducey, 174 F. Supp. 3d 1194, 2016 U.S. Dist. LEXIS 42410 (D. Ariz. 2016).

Capacity to sue is to be judged by law of state in which federal district court sits, but this is only true when right to object thereto has not been waived; defendant waived issue of plaintiff’s capacity when he waited for more than seven months after second amended complaint and more than three months after answer on merits were filed, and after statute of limitations of state other than forum state had run, before making his motion to dismiss because of lack of capacity to sue. Young v. Pattridge, 40 F.R.D. 376, 10 Fed. R. Serv. 2d (Callaghan) 69, 1966 U.S. Dist. LEXIS 10691 (N.D. Miss. 1966).

2. Partnerships and Unincorporated Associations

68. Generally

While alternative methods of suit are provided by Rule 17(b) and Rule 23(a), diversity of citizenship for federal jurisdiction must still exist between all parties on one side and all parties on other; if association is sued or sues as entity under Rule 17(b), citizenship is determined by individual members; if association is class party under Rule 23(a), representatives named must have complete diversity from other side; if association in capacity of entity is joined with persons fairly representing association as class, then association itself is party and citizenship is determined accordingly. Lowry v. International Brotherhood of Boilermakers, etc., 259 F.2d 568, 1 Fed. R. Serv. 2d (Callaghan) 302, 42 L.R.R.M. (BNA) 2748, 42 L.R.R.M. (BNA) 2749, 35 Lab. Cas. (CCH) ¶71819, 1958 U.S. App. LEXIS 5071 (5th Cir. 1958).

69. Capacity under state law, generally

Under Rule 17(b), capacity of unincorporated association to sue is determined by law of forum state. In re Vento Dev.Corp., 560 F.2d 2, 3 Bankr. Ct. Dec. (LRP) 687, 13 Collier Bankr. Cas. (MB) 412, 1977 U.S. App. LEXIS 12837 (1st Cir. 1977).

Judgment entered in favor of limited partnership on its breach of contract claim against property manager that wrongfully disbursed its escrow funds was affirmed, as partnership and limited partners had standing to sue on their own behalf and on behalf of partnership. Eastland Partners Ltd. Partners v. Village Green Mgmt. Co. (In re Brown), 342 F.3d 620, 2003 FED App. 0315P, 2003 U.S. App. LEXIS 18155 (6th Cir. 2003), reh'g denied, 2003 U.S. App. LEXIS 20330 (6th Cir. Sept. 29, 2003).

Although Civilian Board of Contract Appeals initially dismissed contractor’s case because it was not in good standing under Delaware LLC law, because court vacated that dismissal in its entirety and contractor was restored to good standing at time of remand, Board erred by not considering merits of its claim; further, because contractor had capacity to maintain action under Delaware law, court did not have to decide whether Board erred in its determination that it was not unincorporated association under Fed. R. Civ. P. 17. W. States Fed. Contr., LLC v. VA, 667 Fed. Appx. 775, 2016 U.S. App. LEXIS 12976 (Fed. Cir. 2016).

Unincorporated association cannot sue unless such right to sue is granted by state law or suit is for the enforcement of substantive right under Constitution or laws of United States. American Newspaper Guild v. Mackinnon, 108 F. Supp. 312, 1952 U.S. Dist. LEXIS 2262 (D. Utah 1952).

Where plaintiff arrestee sued defendant police department alleging he was arrested in different city by police officers who were operating outside of their jurisdiction, police department was not legal entity subject to suit under Florida law, which was applied for purposes of determining capacity under Fed. R. Civ. P. 17(b). Ball v. City of Coral Gables, 548 F. Supp. 2d 1364, 2008 U.S. Dist. LEXIS 37016 (S.D. Fla.), aff'd, 301 Fed. Appx. 865, 2008 U.S. App. LEXIS 24695 (11th Cir. 2008).

Where former police captain brought civil rights action alleging wrongful termination, city police department was not suable entity and therefore had be dismissed from suit. Louisiana law determined suability of police department and parties cited to no law that conferred upon police department authority to sue or be sued. Winn v. New Orleans City, 919 F. Supp. 2d 743, 2013 U.S. Dist. LEXIS 10570 (E.D. La. 2013), dismissed, in part, 2014 U.S. Dist. LEXIS 24365 (E.D. La. Feb. 25, 2014).

70. Enforcement of substantive federal rights, generally

Rule 17(b) allowing unincorporated association to sue or be sued in its common name for purpose of enforcing federal substantive right merely embodies law as previously declared in United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 1922 U.S. LEXIS 2490 (1922), app. after remand, 268 U.S. 295, 45 S. Ct. 551, 69 L. Ed. 963, 1925 U.S. LEXIS 741 (1925).Denver & R. G. W. R. Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556, 87 S. Ct. 1746, 18 L. Ed. 2d 954, 11 Fed. R. Serv. 2d (Callaghan) 361, 65 L.R.R.M. (BNA) 2385, 55 Lab. Cas. (CCH) ¶11954, 1967 U.S. LEXIS 2841 (1967).Williams v. United Mine Workers, 294 Ky. 520, 172 S.W.2d 202, 7 Lab. Cas. (CCH) ¶61642, 1943 Ky. LEXIS 487 (Ky. 1943).

Under Fair Labor Standards Act (29 USCS §§ 201 et seq.), voluntary, cooperative, mutual association may be subject to suit in federal district court although it could not be sued or summoned as entity in state court. Schmidt v. Peoples Tel. Union, 138 F.2d 13, 7 Lab. Cas. (CCH) ¶61782, 3 Wage & Hour Cas. (BNA) 648, 1943 U.S. App. LEXIS 2414 (8th Cir. 1943).

Rule 17(b), permitting unincorporated associations to sue or be sued in their common name to enforce federal substantive right, thus recognizes them as jural entities. Underwood v. Maloney, 256 F.2d 334, 41 L.R.R.M. (BNA) 2795, 42 L.R.R.M. (BNA) 2407, 34 Lab. Cas. (CCH) ¶71402, 34 Lab. Cas. (CCH) ¶71529, 1958 U.S. App. LEXIS 5010, 1958 U.S. App. LEXIS 5030 (3d Cir.), cert. denied, 358 U.S. 864, 79 S. Ct. 93, 3 L. Ed. 2d 97, 42 L.R.R.M. (BNA) 2830, 1958 U.S. LEXIS 1834 (1958); Philadelphia Local, A. F. T. v. American Federation of Teachers, 44 F. Supp. 345, 1942 U.S. Dist. LEXIS 2983 (D. Pa. 1942).

Right to arbitrate is substantive right existing under laws of United States within exception to Rule 17(b). Laundry, Dry Cleaning & Dye House Workers International Union v. Mahoney, 491 F.2d 1029, 84 L.R.R.M. (BNA) 2084, 85 L.R.R.M. (BNA) 2280, 73 Lab. Cas. (CCH) ¶14242, 1973 U.S. App. LEXIS 12392, 1974 U.S. App. LEXIS 10460 (8th Cir.), cert. denied, 419 U.S. 825, 95 S. Ct. 42, 42 L. Ed. 2d 49, 87 L.R.R.M. (BNA) 2397, 75 Lab. Cas. (CCH) ¶10364, 1974 U.S. LEXIS 4103 (1974).

When party seeks to take advantage of exception in Rule 17(b) which permits unincorporated association to sue or be sued in its common name for purpose of enforcing for or against it substantive right under laws of United States, and laws under which alleged right originates do not specifically limit right to “person,” but rather say nothing one way or the other, court is free to decide applicability of Rule 17(b) substantive right exception on merits of particular case before it. National Asso. for Community Development v. Hodgson, 356 F. Supp. 1399, 17 Fed. R. Serv. 2d (Callaghan) 251, 1973 U.S. Dist. LEXIS 14228 (D.D.C. 1973), overruled,  National Treasury Employees' Union v. Campbell, 482 F. Supp. 1122, 1980 U.S. Dist. LEXIS 9875 (D.D.C. 1980).

Where putative class action asserted by debtors involved a political subdivision’s alleged violation of the stay, violation of the discharge injunction, and unjust enrichment, while the state of South Carolina could certainly place limitations on litigants’ abilities to bring certain actions in state court, those limitations did not extend to causes of action brought under federal bankruptcy law, in the bankruptcy court. Jones v. Lexington Health Servs. Dist., Inc. (In re Jones), 618 B.R. 757, 2020 Bankr. LEXIS 1806 (Bankr. D.S.C. 2020).

71. —Patent and antitrust cases

In patent case, unincorporated association must be sued in district in which it maintains its principal place of business, or at any of its regular or established places of business where it may have infringed, and it may be sued in its common name. Sperry Products, Inc. v. Association of American Railroads, 132 F.2d 408, 56 U.S.P.Q. (BNA) 1, 1942 U.S. App. LEXIS 2610 (2d Cir. 1942), cert. denied, 319 U.S. 744, 63 S. Ct. 1031, 87 L. Ed. 1700, 57 U.S.P.Q. (BNA) 568 (1943), cert. denied, 319 U.S. 744, 63 S. Ct. 1031, 87 L. Ed. 1700, 57 U.S.P.Q. (BNA) 569, 1943 U.S. LEXIS 1256 (1943).

Question of who may bring action under federal antitrust laws on behalf of limited partnership is governed by Federal Rules of Civil Procedure, and especially Rule 17(b).  Klebanow v. New York Produce Exchange, 344 F.2d 294, Bankr. L. Rep. (CCH) ¶61362, 1965 Trade Cas. (CCH) ¶71413, 1965 U.S. App. LEXIS 6039 (2d Cir. 1965)1965 U.S. App. LEXIS 6039 (2d Cir. 1965) (superseded by statute on other grounds as stated in  Koppel v 4987 Corp. (1999, SD NY) CCH Fed Secur L Rep P 90640).

State rule that suit by partnership must be brought in names of individual partners is superseded in patent suits by provision of Rule 17(b) that partnership may sue in its common name for purpose of enforcing substantive right existing under Constitution or laws of United States. Gregory v. Royal Typewriter Co., 27 F. Supp. 160, 41 U.S.P.Q. (BNA) 85, 1939 U.S. Dist. LEXIS 2840 (D.N.Y. 1939).

When action for injunction and treble damages under federal Antitrust Acts (15 USCS §§ 1 et seq.), common law, and general business law of New York was properly brought against unincorporated association in its common name, charging violation of federal statutes, it would be needless formalism to require officer of association to be named as such in accordance with New York law, particularly when association’s president had been served both individually and as president, and individual members of association were also named as defendants. Braddick v. Federation of Shorthand Reporters, 115 F. Supp. 550, 32 L.R.R.M. (BNA) 2580, 24 Lab. Cas. (CCH) ¶67762, 1953 U.S. Dist. LEXIS 2445 (D.N.Y. 1953).

Action brought by one of two partners in dissolved California partnership in process of liquidation, for treble damages for claimed violation of Antitrust Laws (15 USCS §§ 1 et seq.) was an “act appropriate for winding up partnership affairs,” and action could be brought by one partner in partnership name. Leh v. General Petroleum Corp., 165 F. Supp. 933, 1 Fed. R. Serv. 2d (Callaghan) 297, 1958 Trade Cas. (CCH) ¶69138, 1958 U.S. Dist. LEXIS 3761 (S.D. Cal. 1958).

72. Unincorporated association, generally

Non-profit organization had capacity to sue as unincorporated association in federal court, regardless of its capacity to sue under state law, because it forfeited its corporate charter by failing to file annual report in one year. Committee for Idaho's High Desert v. Yost, 92 F.3d 814, 96 Cal. Daily Op. Service 5814, 35 Fed. R. Serv. 3d (Callaghan) 897, 39 U.S.P.Q.2d (BNA) 1705, 1996 U.S. App. LEXIS 19488 (9th Cir. 1996).

Although plaintiff’s corporate powers were suspended and, under California law, it could not bring suit or defend legal action, district court properly held that it had capacity to sue under Lanham Act, as Federal Rules of Civil Procedure allowed unincorporated association that lacked capacity to sue under state law to sue to enforce substantive right existing under federal law. S. Cal. Darts Ass'n v. Zaffina, 762 F.3d 921, 112 U.S.P.Q.2d (BNA) 1326, 2014 U.S. App. LEXIS 15391 (9th Cir. 2014).

Rule 17(b), which appears to contemplate suits against unincorporated associations for purpose of enforcing constitutional rights is entirely understandable in terms of providing forum for equitable relief, and does not presuppose existence of Bivens remedies against entities such as schools who enjoy Eleventh Amendment immunity. Kauffman v. Anglo-American Sch. of Sofia, 28 F.3d 1223, 307 U.S. App. D.C. 356, 1994 U.S. App. LEXIS 17008 (D.C. Cir. 1994).

Although Civilian Board of Contract Appeals initially dismissed contractor’s case because it was not in good standing under Delaware LLC law, because court vacated that dismissal in its entirety and contractor was restored to good standing at time of remand, Board erred by not considering merits of its claim. Further, because contractor had capacity to maintain action under Delaware law, court did not have to decide whether Board erred in its determination that it was not unincorporated association under Fed. R. Civ. P. 17. W. States Fed. Contr., LLC v. VA, 667 Fed. Appx. 775, 2016 U.S. App. LEXIS 12976 (Fed. Cir. 2016).

Unincorporated association which has brought suit in its common name but is unable to establish necessary diversity of citizenship as to all of its individual members may be given opportunity to proceed with case as class action if there is diversity of citizenship as to its representatives. International Allied Printing Trades Ass'n v. Master Printers Union, 34 F. Supp. 178, 46 U.S.P.Q. (BNA) 464, 1940 U.S. Dist. LEXIS 2760 (D.N.J. 1940).

Rule 17(b) permits unincorporated association of seven or more members to sue in its common name, if it has such capacity by law of state in which district court is held. International Allied Printing Trades Ass'n v. Master Printers Union, 34 F. Supp. 178, 46 U.S.P.Q. (BNA) 464, 1940 U.S. Dist. LEXIS 2760 (D.N.J. 1940).

Federal court in Pennsylvania applied Pennsylvania rule that unincorporated association may be sued in equity by naming several of its members as representatives of entire body. Philadelphia Local, A. F. T. v. American Federation of Teachers, 44 F. Supp. 345, 1942 U.S. Dist. LEXIS 2983 (D. Pa. 1942).

Where defendant is an unincorporated association with its principal office in Cleveland it could not be sued in Illinois, since it is inhabitant or resident of place where it has its principal office only. Griffin v. Illinois C. R. Co., 88 F. Supp. 552, 25 L.R.R.M. (BNA) 2288, 17 Lab. Cas. (CCH) ¶65516, 1949 U.S. Dist. LEXIS 1902 (D. Ill. 1949).

In civil suit brought by 4 unincorporated associations against Labor Department and an unincorporated association, Interstate Conference of Employment Security Agencies (ICESA), based on alleged violation of federal criminal statutory provision (18 USCS § 1913) making governmental subsidy of lobbying illegal, plaintiffs were attempting to enforce right existing under laws of United States and, pursuant to Rule 17(b), plaintiffs, as unincorporated associations, might sue, and defendant, ICESA, as unincorporated association, might be sued in their common names. National Asso. for Community Development v. Hodgson, 356 F. Supp. 1399, 17 Fed. R. Serv. 2d (Callaghan) 251, 1973 U.S. Dist. LEXIS 14228 (D.D.C. 1973), overruled,  National Treasury Employees' Union v. Campbell, 482 F. Supp. 1122, 1980 U.S. Dist. LEXIS 9875 (D.D.C. 1980).

In civil rights action brought in United States District Court in Virginia, unincorporated association of black police officers had capacity to sue in light of provision of Virginia law specifically conferring upon unincorporated corporation capacity to sue or be sued. Richmond Black Police Officers Ass'n v. City of Richmond, 386 F. Supp. 151, 10 Empl. Prac. Dec. (CCH) ¶10268, 12 Fair Empl. Prac. Cas. (BNA) 435, 19 Fed. R. Serv. 2d (Callaghan) 1296, 1974 U.S. Dist. LEXIS 5751 (E.D. Va. 1974).

For purposes of Rule 17(b)(1), capacity is not conferred only in those instances where substantive right asserted belongs to unincorporated association as entity and not to its individual members; in action brought by unincorporated association having as their members renters who were ineligible for benefits under state statute because of their receipt of public assistance, associations had capacity under Rule 17(b)(1), where plaintiffs contended that provisions of state statute offended both equal protection and due process clauses of Fourteenth Amendment by impermissibly excluding from benefits renters who receive public assistance from state Department of Public Welfare. Action Alliance for Senior Citizens v. Shapp, 400 F. Supp. 1208, 20 Fed. R. Serv. 2d (Callaghan) 985, 1975 U.S. Dist. LEXIS 11221 (E.D. Pa. 1975).

Although unincorporated association lacks capacity to sue under Missouri law, action on behalf of association may be maintained by one or more of its members and where each of reciprocal interinsurance exchanges subscribers have granted to its attorney-in-fact power of attorney then attorney-in-fact could bring action and reciprocal interinsurance exchange had capacity to sue under Rule 17(b). Lumberman's Underwriting Alliance v. Hills, 413 F. Supp. 1193, 1976 U.S. Dist. LEXIS 15280 (W.D. Mo. 1976).

Joint labor-management committee which supervises and controls apprenticeship program in several states is unincorporated association and, as such, is suable entity under method authorized by Rule 17(b). Bailey v. Boilermakers Local 677 etc., 480 F. Supp. 274, 22 Empl. Prac. Dec. (CCH) ¶30811, 21 Fair Empl. Prac. Cas. (BNA) 874, 1979 U.S. Dist. LEXIS 8302 (N.D. W. Va. 1979).

In copyright infringement action, motion of organization to dismiss complaint for want of capacity in that it is not entity capable of being sued is granted where Wes Farrell Organization is merely title used by defendant to conveniently identify numerous companies over which he has control and, is not distinct entity; since company encompassed within Wes Farrell Organization is defendant in action, there is no reason to extend definition of “unincorporated associations” to include fictitious entities. Testa v. Janssen, 482 F. Supp. 1195, 29 Fed. R. Serv. 2d (Callaghan) 1304, 209 U.S.P.Q. (BNA) 534, 1980 U.S. Dist. LEXIS 9868 (W.D. Pa. 1980).

Committee of unincorporated chiropractic association has capacity to sue as assignee of treble damage claims of members of unincorporated association. Health Care Equalization Committee of Iowa Chiropractic Soc. v Iowa Medical Soc. (1980, SD Iowa) 501 F Supp 970, 1980-81 CCH Trade Cases P 63718, affd (1988, CA8 Iowa) 851 F2d 1020, 1988-1 CCH Trade Cases P 68107, 11 FR Serv 3d 647 and (criticized in EEOC v St. Francis Xavier Parochial Sch. (1999, DC Dist Col) 77 F Supp 2d 71).

Tenants’ union has capacity as an “unincorporated association” under Rule 17(b) to bring action under Fair Housing Act, Civil Rights Act of 1964, 42 USCS §§ 1981 and 1982, Thirteenth and Fourteenth Amendments, and United States Housing Act against Department of Housing and Urban Development, State of Rhode Island, various other municipal and State agencies, corporate developer, and various individuals associated with defendant organizations for allegedly racially discriminatory housing practices where union has membership and distinct purpose, performs specific functions toward its purpose, has office and full-time staff person, and presumably does business on its own behalf, because union is clearly actual assemblage of people and is far from amorphous or transitory group. Project Basic Tenants Union v. Rhode Island Housing & Mortg. Finance Corp., 636 F. Supp. 1453, 1986 U.S. Dist. LEXIS 24584 (D.R.I. 1986).

English insurance syndicates may not be sued by investors for violating federal securities laws and RICO, where investors claimed that syndicates have capacity to be sued under FRCP 17(b) since investors seek only to enforce federal substantive rights, because syndicates are not unincorporated associations under any applicable law and legal existence is substantive proposition that cannot be controlled by procedural rule. Roby v. Corporation of Lloyd's, 796 F. Supp. 103, Fed. Sec. L. Rep. (CCH) ¶ 96825, Fed. Sec. L. Rep. (CCH) ¶96825, 1992 U.S. Dist. LEXIS 8210 (S.D.N.Y. 1992).

In action by employees alleging age discrimination, investment firm’s Board of Partners, which acted under charter of investment firm, was not subject to federal claims under Fed. R. Civ. P. 17(b)(1); moreover, with regard to claims under state or local laws, Board’s capacity to be sued would be governed by D.C. law, under which Board, as unincorporated association, could not be sued in its own name. Murphy v. PriceWaterhouseCoopers, LLP, 357 F. Supp. 2d 230, 2004 U.S. Dist. LEXIS 27148 (D.D.C. 2004), aff'd in part and rev'd in part, remanded, 595 F.3d 370, 389 U.S. App. D.C. 213, 93 Empl. Prac. Dec. (CCH) ¶43823, 108 Fair Empl. Prac. Cas. (BNA) 795, 2010 U.S. App. LEXIS 2998 (D.C. Cir. 2010).

Under Fed. R. Civ. P. 17(b) capacity of entity other than individual or corporation to sue or to be sued was determined by state law, and in state, unincorporated entity could not be sued; consequently, because plaintiff was unable to provide evidence that two entities named as defendants could be sued, and because evidence indicated one of entities was merely trade name, entities were dismissed from case. Dodora Unified Communs., Inc. v. Direct Info. Pvt. Ltd., 379 F. Supp. 2d 10, 2005 U.S. Dist. LEXIS 11756 (D. Mass. 2005).

Defendant, alleged in complaint to be division of company, was not “unincorporated association” because division of corporation did not operate with charter—charter of larger corporation. Smartdoor Holdings, Inc. v. Edmit Indus.,  Smartdoor Holdings, Inc. v Edmit Indus. (2015, DC Dist Col), 78 F. Supp. 3d 275 (January 23, 2015).

Special tactics unit that was involved in night-time raid on residents of home who allegedly were involved in theft ring was unincorporated association of area law enforcement officials and, thus, was “person” pursuant to 42 USCS § 1983 who had capacity to be sued as recognized by Fed. R. Civ. P. 17 for allegedly using excessive force in violation of victims’ Fourth Amendment, U.S. Const. amend. IV, rights; victims could sue special tactics unit based on their claims that special tactics unit shot and killed homeowner and terrorized other residents during raid. Rush v. City of Mansfield, 2009 U.S. Dist. LEXIS 130648 (N.D. Ohio May 20, 2009), accepted, in part, rejected, 771 F. Supp. 2d 827, 2011 U.S. Dist. LEXIS 13689 (N.D. Ohio 2011).

Complaint alleging group of companies’ breach of contract was dismissed, under Fed. R. Civ. P. 4(m) and 12(b)(5), because (1) group was not registered corporation, (2) nothing showed group was statutorily authorized to participate in litigation, and (3) nothing suggested group was independent legal entity capable of being sued. K & S Servs. v. Schulz Elec. Group of Cos., 670 F. Supp. 2d 91, 2009 U.S. Dist. LEXIS 109545 (D. Me. 2009).

Pension plan participants sufficiently alleged that entity was unincorporated association that could be sued as fiduciary under Employee Retirement Income Security Act, 29 USCS §§ 10011461 and Fed. R. Civ. P. 17(b); entity was alleged to operate as branch office of provider of investment management services. Goldenberg v. Indel, Inc., 741 F. Supp. 2d 618, 50 Employee Benefits Cas. (BNA) 1718, Fed. Sec. L. Rep. (CCH) ¶ 95901, Fed. Sec. L. Rep. (CCH) ¶95901, 2010 U.S. Dist. LEXIS 97599 (D.N.J. 2010).

Plaintiff was unincorporated association capable of suing or being sued; it had website, chairman, treasurer, and board of directors; board of directors selected and voted on issues undertaken by plaintiff; it had adopted formal bylaws; and it maintained two Ohio political action committees with treasurer. Miller v. City of Cincinnati, 870 F. Supp. 2d 534, 2012 U.S. Dist. LEXIS 64885 (S.D. Ohio 2012).

Plaintiff was not unincorporated association capable of suing or being sued, but group of people who acted together in common cause to effect political change; it was amorphous, ever-changing combination of other advocacy groups and associations; it had no charter, minutes, bylaws, or board of directors. Miller v. City of Cincinnati, 870 F. Supp. 2d 534, 2012 U.S. Dist. LEXIS 64885 (S.D. Ohio 2012).

[U.S.C.S Federal Rules of Civil Procedure 17]

Oyler v. National Guard Asso., 743 F.2d 545

"As it relates to this case, Federal Rule 17(b) provides that an unincorporated association has the capacity to be sued in its own name if such capacity is provided for under state law or if the action is based upon constitutional rights or the laws of the United States. Because the plaintiff has not sought relief under the laws of the United States or the Constitution (because his action sounds in state common law fraud), the 17(b)(1) exception is not applicable, and we must therefore determine whether the defendants Trust and Association have a right to sue or be sued under Illinois law."

[Oyler v. National Guard Asso., 743 F.2d 545 (1984)]

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)]

PDF 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.

Martinez v. Bynum, 461 U.S. 321 (1983)

A difference between the concepts of residence and domicile has long been recognized. See, e. g., Mitchell v. United States, 21 Wall. 350 (1875); Penfield v. Chesapeake, O. & S. R. Co., 134 U.S. 351 (1890); Texas v. Florida, 306 U.S. 398 (1939). A person is generally a resident of any State with which he has a well-settled connection. "[M]ere lodging or boarding or temporary occupation" is not enough to establish a residence. Dwyer v. Matson, 163 F.2d 299, 303 (CA10 1947). See generally Reese & Green, That Elusive Word, "Residence," 6 Vand. L. Rev. 561, 563 (1953). Under the law of Texas, for example, "[r]esidence may be temporary or permanent in nature. However, residence generally requires some condition greater than mere lodging. The term implies a place of abode, albeit temporary, rather than a mere transient lodging." Whitney v. State, 472 S. W. 2d 524, 525 (Tex. Crim. App. 1971) (citation omitted). See, e. g., Brown v. Boulden, 18 Tex. 431, 432 (1857); Travelers Indemnity Co. v. Mattox, 345 S. W. 2d 290, 292 (Tex. Civ. App. 1961); Prince v. Inman, 280 S. W. 2d 779 (Tex. Civ. App. 1955). "Intent to remain indefinitely" in the State need not be shown in order to be considered a resident of a [461 U.S. 321, 339]   State. 5 As the Texas Supreme Court stated in Snyder v. Pitts, 150 Tex. 407, 413, 241 S. W. 2d 136, 139 (1951), "[f]rom the fact that there can be but one domicile and several residences, we arrive at the conclusion that the element of `intent to make it a permanent home' is not necessary to the establishment of a second residence away from the domicile." [461 U.S. 321, 340]  

On the other hand, an individual has only one domicile, which is generally the State with which he is currently most closely connected, but which may be a State with which he was closely connected in the past. See generally Williams v. North Carolina, 325 U.S. 226, 229 (1945); District of Columbia v. Murphy, 314 U.S. 441 (1941); Williamson v. Osenton, 232 U.S. 619 (1914). Traditionally, an individual has been said to acquire a new domicile when he resides in a State with "the absence of any intention to live elsewhere," id., at 624, or with "the absence of any present intention of not residing permanently or indefinitely in' the new abode." Ibid., citing A. Dicey, The Conflict of Laws 111 (2d ed. 1908). The concept of domicile has typically been reserved for purposes that clearly require general recognition of a single State with which the individual, actually or presumptively, is most closely connected. 6  

The majority errs in assuming that, as a general matter, States are free to close their schools to all but domiciliaries of the State. To begin with, it is clear that residence, not domicile, is the traditional standard of eligibility for lower school education, 7 just as residence often has been used to determine [461 U.S. 321, 341]   whether an individual is subject to state income tax, whether his property in the State is exempt from attachment, and whether he is subject to jury duty. 8 Moreover, this Court's prior decisions which speak of the constitutionality of a bona fide residence standard provide no support for the majority's assumption. Although this Court has referred to a domicile requirement with approval in the context of higher education, it is incumbent upon the State of Texas to demonstrate that the classification transplanted from another statutory scheme is justified by "`the purposes for which the state desires to use it.'" Plyler v. Doe, 457 U.S. 202, 226 (1982), quoting Oyama v. California, 332 U.S. 633, 664 -665 (1948) (Murphy, J., concurring).

[Martinez v. Bynum, 461 U.S. 321 (1983)]

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

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

Article 2.  Determination of Residence and Domicile
SECTION 2020-2035

2020. 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.

26 U.S.C. 911(d)(3)

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]
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.

IRS Publication 519, 2007

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.

[IRS Publication 519, 2007]

Arnold & Ramsey v. United Ins. Co., 1 Johns.Cas. 363 (N.Y.Sup. 1800)

In order to guard against abuse, and to ascertain the parties at war by some determinate criterion, it seems now to be pretty generally understood, that the domicil shall be the test by which to determine whether a person is to be regarded as a subject or a foreigner. It was a maxim of the civil law, that incolas domicilium facit,FN(a) and the domicil was defined by the same law, to be the place where a person resides and carries on his business.

FN(a). By the civil law, a bare habitation, or temporary residence in a place, did not create the jus incolatus. “Et in eodem loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ad fortunarum suarum summam constituit, unde rursus non sit discessurus, si nihil advocet: unde cum profectus est, pregrinari videtur; quod si redit, peregrinari jam destitit.” Cod. lib. 10. tit. 39. 1. 7. So in the Digest, lib. 50. tit. 16.1. 203. Eam domum unicuique nostrum debere existimari, ubi quisque sedes et tabulas haberet, suarumque rerum constitutionem fecisset. Agreeably to this, is the opinion of Lord Loughborough, in the case of Bempde v. Johnstone, (3 Vez. jun. 201.) See also the case of Somerville v. Somerville, (5 Vez. jun. 750.) where the question of domicil was learnedly and elaborately discussed.

In the case of the Vigilantia, (1 Rob. Adm. Rep. 13, 14.) Sir William Scott says, that where there is nothing particular or special in the conduct of a vessel itself, the national character is determined by the residence of the owner; but there may be circumstances arising from that conduct, which will lead to a contrary conclusion. He refers to the decision of the Lords of Appeal in 1785; that where one of two partners resided in Denmark, and the other in St Eustatius, where they established a house of trade, that the share of the partner resident in St. Eustatius was liable to condemnation, as the property of a domiciled Dutchman. So in 1795, in the case of one of two partners emigrating from Nantucket to France, for the purpose of carrying on their fishery, the property of the partner domiciled in France, was condemned.
Again, in 1798, it was decided, that if a person entered into a house of trade in the enemy's country, in time of war, or continued that connection during the war, he should not protect himself by mere residence in a neutral country.
In the case of the Endraught, (1 Rob. 19.) Sir William Scott said, that if a neutral chose to engage himself in the trade of a belligerent nation, he must be content to bear all the consequences of such a speculation; and if he confines his vessel exclusively to the enemy's navigation, he is liable to be considered as an enemy, with respect to the concerns of such vessel. (See also 1 Rob. 105. 24. 2 Rob. 322. et sequ.)
In the case of Mr. Johnson, (3 Rob. 12.) and of Mr. Millar, (3 Rob. 27. the Indian Chief,) it was decided, that the character of an American consul residing in a foreign country, would not protect that of the merchant, when united in the same person; and Sir William Scott cites several cases before the Lords of Appeal, in 1782, 1784, and 1797, where it was so settled, after solemn argument. (See also 3 Rob. 38, 39. 41. 44.4 Rob. 26. 232. 239. 5 Rob. 379.)
In Tabbs v. Bendlelack, (4 Esp. Cas. N. P. 108.) Lord Kenyon considered an American residing with his family in England, and carrying on trade from that country, so far a British subject, in regard to belligerents, that if he warranted his ship to be American, the warranty failed, and he could not recover, in case of a capture.
On the question of domicil, see further, Marsh v. Hutchinson, (2 Bos. & Pull. 226.) and the case of Bruce v. Bruce, in a note, p. 229 and the cases there cited.

It was in the spirit of this general rule, that the ordinance of France, in 1704, and that of 1744 were dictated, which declare that neutrals, fixing their domicil, and carrying on commerce in a belligerent territory, were to be treated as enemies.FNa1

"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.