Glenn Weible and Patricia Weible v. United States

244 F.2d 158 57-1 USTC P 9589 Glenn WEIBLE and Patricia Weible, Appellants, v. UNITED STATES of America, Appellee. No. 15150. United States Court of Appeals Ninth Circuit. April 15, 1957. 1 Thompson, Royston, Wiener & Moss, Robert S. Thompson, Clifford E. Royston, Conrad J. Moss, Los Angeles, Cal., for appellants. 2 Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Helen A. Buckley, Karl Schmeidler, Washington, D.C., Laughlin E. Waters, U.S. Atty., Edward R. McHale, Los Angeles, Cal., for appellee. 3 Before POPE and LEMMON, Circuit Judges, and ROSS, District Judge. 4 ROSS, District Judge. 5 This is an action for refund of income taxes paid by appellant Glenn Weible for the year 1947, and by the appellants, Glenn Weible and his wife Patricia, for the years 1948 and 1949. During this period Weible was employed abroad. Appellants filed their claims for refund for the sum of approximately $3,509.79, the total amount of taxes paid during these years, claiming exemption under Section 116, Internal Revenue Code of 1939, Section 116, Title 26 U.S.C.A. The Collector of Internal Revenue disallowed the claims. Appellants then brought their action in the District Court for the recovery…

This is an action for refund of income taxes paid by appellant Glenn Weible for the year 1947, and by the appellants, Glenn Weible and his wife Patricia, for the years 1948 and 1949. During this period Weible was employed abroad. Appellants filed their claims for refund for the sum of approximately $3,509.79, the total amount of taxes paid during these years, claiming exemption under Section 116, Internal Revenue Code of 1939, Section 116, Title 26 U.S.C.A. The Collector of Internal Revenue disallowed the claims. Appellants then brought their action in the District *159 Court for the recovery of the taxes paid. In that action judgment went for the Collector and against the appellants. Hence this appeal.

The Facts

Weible, the taxpayer, had been employed by Max Factor and Company for some years prior to World War II, from 1938 to 1941. During the war he was employed by Lockheed, and in 1945 again entered Max Factor’s employment, this time for the specific purpose of planning and constructing of manufacturing plants for the company in foreign countries, and the training of personnel to operate the same. The contract of employment was oral and by it Weible agreed to undertake the…

I dissent.

The effect of the majority opinion is to permit an American citizen temporarily present in Australia who escaped liability for income tax in that country through the claim there made that he resided in the United States to avoid payment of income tax here through the assertion that he was resident of Australia during the same period of time. Such a result should be avoided if possible.

The majority appears to concede that intent is one of the elements of residence. The intention is to remain at a place permanently or for an indefinite time.

Like other questions of fact, residence may be established by circumstantial evidence. The circumstances set forth in the majority opinion supplemented by those in this opinion adequately sustains the trial court’s finding: at least that findings and the judgment thereon are not clearly erroneous.

The majority opinion states that Weible agreed with his employer “to remain permanently outside the United States in the performance of these duties except for short periods of training and consultation”. This is inaccurate.

It is more accurate to state, in the words of Michael Harris, vice president and head of the export division of…

(concurring).

I concur in all of the foregoing opinion with the exception of the comment in the last five paragraphs respecting the administrative practices of the Bureau -officials. To my mind the income tax law as we have it is an inevitable concomitant of a highly organized society. •Those whom we charge with its collection would not be doing their duty if they were not alert to see that it is collected. I have the impression that, by and large, the Bureau officials do a pretty good job even if they are not always right. And in a close case like this, where the judges themselves are in disagreement, I believe it the duty of the Commissioner and his counsel to present the Government’s side of the case as they have done here.