AGASSIZ v. TREFRY et al., 266 F. 8

BINGHAM, Circuit Judge. This is an appeal from a decree of the District Court for Massachusetts dismissing a bill in equity brought to restrain the tax commissioner of Massachusetts from collecting an income tax assessed against the appellant for the year 1917 under the Massachusetts Income Tax Law. St. 1916, c. 269. The question in controversy is one of domicile. If the appellant was domiciled in Massachusetts any time between January 1 and June 30, 1917, he was subject to the tax. He claims that he was then domiciled in Newport, R. I.

In the court below it was ruled and found that in 1917 he was domiciled in Hamilton, Mass. The question on this appeal is largely one of fact, namely, whether, on the evidence, the conclusion reached was right. It is conceded that the appellant was domiciled in Hamilton down to the fall of 1914 or the spring of 1915. The question, therefore, reduces itself to this: Whether he took such a course of action and with such an intent as to change his domicile to Newport in the fall of 1914 or the spring of 1915.

His domicile in Hamilton is presumed to continue until he acquired a new one; and he could acquire a new one in Newport only by actual residence there, coupled with the bona fide intention of abandoning his domicile in Hamilton and making Newport his permanent abiding place. As the appellant asserts that this change took place, he has the burden of establishing it. The appellant’s father was for many years a resident of Cambridge, Mass., but in 1896 or 1897 he became a resident of Newport, having acquired about the year 1872 a very substantial estate there as a summer home.

He died in 1910, leaving a large estate, part of which consisted of the Newport house. He left three sons, whom he appointed trustees of his estate. The appellant’s two brothers have long been domiciled in Newport. One is a bachelor; the other is married, but has no children. The Newport house, subject to a contingent interest in Harvard College, passed under the father’s will to the three sons.

After the father’s death in 1910, and prior to the appellant’s alleged change of domicile in 1914 or 1915, the brothers, or some of their families, spent a part of each summer or fall at the Newport house, the place being opened by the bachelor brother and his servants; and the brothers, since the father’s death, have shared tire expense of running the place. There is no evidence in the case from which it can be found that after 1896 or 1897, when-the father took up his domicile in Newport, the father’s domicile was that of the appellant.

The appellant and his family spent a large part of the summers of 1910 and 1911 in the Newport house. Since then neither he nor his family have spent a summer there. For many years he has owned an estate in Hamilton, assessed for $35,000 to $45,000, and also a house in Boston, assessed for $60,000 to $70,000. His family, now consisting of a wife and an unmarried daughter, have habitually spent their winters in Boston and summers in Hamilton.

In November, 1914, acting under the advice of counsel, the appellant wrote the assessors of Newport, notifying them that from and after that date he should claim his residence in Newport, and on March 16, 1915, he wrote the board of assessors at Hamilton that he had become a citizen of the city of Newport, where in the future he should pay his poll and personal taxes. Since 1915 he has described "himself as of Newport. Down to that time he had paid taxes on his Hamilton real estate and on his personal property, including securities, in that town.

The taxes paid there varied from $2,000 to $3,000 a year and the rate was from $10 to $12 on a thousand. In the spring of 1915 he registered as a voter in Newport and has since voted there. He bought a piece of real estate in Rhode Island, paying therefor something less than $1,000, to entitle him to certain voting privileges, and has since been taxed-there for it. At or about this time he engaged a safety deposit vault in Providence, and moved his securities there. He opened an account in the Newport Trust Company, where he kept funds sufficient to meet his Newport expenses.

In 1915, and since then, he has paid taxes in Newport on the third of his father’s estate represented by him as trustee, and on his one-third interest in the furniture, boats, and carriages at the Newport house, which was assessed to him individually; but the taxes, if any, which he has paid on his securities since 1915, are negligible. He has also paid his federal income tax in the Rhode Island district. In 1915 he occupied the Newport house three weeks in September, and was personally in Newport, though not at the Newport house, on the 1st of April, the Massachusetts tax day.

During that year the Hamilton house was kept open from the latter part of May to the latter part of November, where his family and servants were practically all that time. His Boston house was kept open about six moii-ths during the winter, where his family resided, and where he stayed when.he could and his business permitted. In 1916 the appellant was in Newport April 1, over tax day, but neither he nor his family were at the Newport house that year.

The house at Hamilton, however, was open and occupied by his family from the last of May until the 3d of September, and his Boston house was open and occupied that winter substantially the same as in the winter of 1915. In 1917 the appellant was at the Newport house for about a week in August, and Mrs. Agassiz was there for a few days in September. He was also in Newport over April 1, the tax day in Massachusetts. That year the Hamilton house was open and occupied by the family from May 16 to September 12, and the Boston house in the winter as befdre.

In 1918 the appellant was in Newport over tax day, April 1, but not at the house. His family was not there at all. • The Hamilton house was occupied by the family from May 4 until the 3d of September, and the Boston house was open and occupied as usual during the winter. The appellant has large business interests in Boston, New York, and Michigan, in all of which places he spends a good deal of time each year.

After giving due consideration to all the evidence in the case, of which that above narrated constitutes the substantial part, we are unable to find that the appellant had a real abiding place in Newport, or that he intended in good faith to make it his permanent home. The evidence shows that he did not change in any degree his mode of living; that, on the contrary, lie spent less time in Newport after the spring of 1915 than he did prior thereto and subsequent to his father’s death; and that what was true of himself was equally true of his family.

Judged by the conduct and mode of living of himself and family, Hamilton continued to be the place where he resided and maintained his home, while his trips to the Newport house were casual, of brief duration, and at such times and under such circumstances as to lend little, if any, weight to the idea that Newport was his permanent residence and intended to be such. Being of the opinion that the appellant has failed to establish the facts essential to a change of domicile, we think the decree of the court below should be affirmed. The decree of the District Court is affirmed, with costs to the ap-pellees.