Jones, Collector of Internal Revenue v. Kyle ( 1951 )

BRATTON, Circuit Judge.

During the year 1945, O. A. Kyle, hereinafter referred to as the taxpayer, was employed in Saudi Arabia. He included in hi9 income tax return for that year income derived from such employment and paid the tax thereon. A claim for refund was seasonably filed. No action was taken on the claim within six months after the date of its filing, and the taxpayer instituted this action against the Collector of Internal Revenue to recover the amount of the tax paid. The basis of the action was that the income was exempt from tax under section 116(a) of the Internal Revenue Code, 26 U.S.C. § 116(a). Judgment was entered for the taxpayer, 92 F.Supp. 600; and the Collector appealed.

The Government was clothed with power to reach and tax the income of the taxpayer even though it was earned outside the United States. Cook v. Tait, 265 U.S. 47, 44 S.Ct. 444, 68 L.Ed. 895. A taxpayer asserting exemption from income tax must be able to point to an applicable statute granting the exemption and bring himself clearly within its terms. And a provision granting a special exemption is to be strictly construed. Helvering v. Northwest Steel Rolling Mills, 311 U.S. 46, 61 S.Ct. 109, 85 L.Ed. 29.

The taxpayer relies upon section 116(a), supra, to exempt from tax the income in question. The exemption granted by the section was first enacted into law as section 213(b) (14) of the Revenue Act of 1926, 44 Stat. 9. In its original form, it exempted from tax income derived from sources outside the United States by a citizen of the United States who was a bona fide non-resident of the United States for more than six months during the taxable year. And with an exception not having material bearing here, the section in substantially the same language remained in effect until 1942. The section was amended by section 148(a) of the Revenue Act of 1942, 56 Stat. 798, 841. And it was further amended by section 107(b) of the Revenue Act of 1943, 58 Stat. 21, 31, but that amendment does not have material bearing here. The statute as amended in 1942 exempts from tax income derived from sources outside the United States by a citizen of the United States who establishes to the satisfaction of the Commissioner of Internal Revenue that he was a bona fide resident of a foreign country or of foreign countries during the taxable year. Treasury Regulation 111, section 29.211- 1, promulgated under the statute, provides in effect that whether an individual citizen of the United States is a bona fide resident of a foreign country shall be determined in general by application of the principles of sections 29.211-2, 29.211-3, 29.211- 4, and 29.211-5 relating to what constitutes residence or non-residence in the United States, as the case may be, of an alien individual. Section 29.211-2 in pertinent part reads

“An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and to that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned.”

This review makes it plain that the change in the statute created a new test for exemption. Prior to the amendment the test was whether the taxpayer was a bona fide non-resident of the United States for more than six months during the taxable year. Since the amendment became effective, the test is whether the taxpayer was a bona fide resident of a foreign country or of foreign countries during the entire taxable year. Emphasis is no longer placed upon mere non-residence. It has been shifted to a bona fide resident of a foreign country or of foreign countries. The amendment not only extended the necessary time to a full year, but it changed the character of the status required for exemption from that of a non-resident of the United States to a bona fide resident of a foreign country or of foreign countries. Downs v. Commissioner, 9 Cir., 166 F.2d 504, certiorari denied, 334 U.S. 832, 833, 68 S.Ct. 1346, 92 L.Ed. 1759.

Courts have said much in respect to points of similarity and at the same time shades of difference, distinction, and contrast between domicil and residence. But the facts in this case eliminate need to explore the refinements of nomenclature in the use of these terms. Here, the taxpayer was a pipe fitter by trade. He was married and lived in Oklahoma. For the purpose of accumulating money with which to purchase a farm in that state, he entered into a written contract with a Brazilian corporation to work on the construction of a refinery and a stabilization plant in Saudi Arabia. The contract was executed in 1944, and it provided that the period of employment should be eighteen months. While the taxpayer understood that the term of employment was eighteen months, he assumed that he could work longer if he desired to do so. He arrived in Saudi Arabia in December, 1944, and he worked there until May, 1946, at which time he returned to the United States; and he later purchased a farm in Oklahoma with money earned in Saudi Arabia. At the time he left the United States he intended to remain in Saudi Arabia three years. But he never at any time intended to remain there longer. He returned sooner because of a change in the personnel of his employer. The company arranged for his passport and paid for his passage to Saudi Arabia and return. When he arrived there the company took possession of his passport and he did not see it again until he left to come back home. Apparently the passport was good for eleven or twelve months. In any event, while the taxpayer was in Saudi Arabia he made application for its extention for a period of eleven months — until August, 1946. During all the time the taxpayer was in Saudi Arabia, he lived in temporary barracks provided by the company and the company furnished his meals — all without cost or charge to him. He was one of seven or eight hundred American workmen living in the barracks and it was “like a little piece of America transported to Saudi Arabia.” He made no effort to take his wife with him. She remained in Oklahoma. He did not pay any taxes to the government of Saudi Arabia. He did not apply for naturalization or citizenship. He did not establish living quarters for himself. He did nothing to identify himself with the customs or habits of that country or to assimilate himself even casually into its life or society. Out of his salary, the company paid him $50.00 per month in Saudi Arabia, paid $100 per month to his wife in Oklahoma, and deposited the balance to his credit in a bank in the United States. Viewed in their totality, these facts and circumstances make it clear that the taxpayer did not go to Saudi Arabia for permanent residence. He did not go there for an indefinite or undetermined period. He did not go on the basis of a mere floating intention, indefinite as to the time of his stay there or indefinite as to the time of his return to the United States. He went for a specific purpose and for a fixed period of time. He went with the firm intention of returning to the United States at the end of eighteen months when his employment with the company terminated, or in any event not later than three years after his arrival there. And his acts and conduct throughout his stay there were uniformly consistent with that intent and purpose. He was not a bona fide resident of that country throughout the taxable year 1945, within the intent and meaning of section 116(a). Downs v. Commissioner, supra.

The trial court cited the cases of Swen-son v. Thomas, 5 Cir., 164 F.2d 783, and Myers v. Commissioner, 4 Cir., 180 F.2d 969; and the taxpayer places strong reliance upon them. But both of these cases were substantially different from this one in respect to decisive facts. In Swenson v. Thomas, the taxpayer did not leave a wife in the United States. His work in Colombia required him to spend most of his time in forests and jungles, and he moved from place to place. Obviously, such conditions made it infeasible for him to establish a home, a residence, or other fixed living quarters at any specific place. And he paid income taxes to the government of Colombia while in that country. In Myers v. Commissioner, the taxpayer was employed by the Board of Water Supply of New York City. He accepted employment as chief engineer for a construction project of Pleasantville Constructors, Inc. on the Island of New Providence, Bahamas. He sought and obtained a leave of absence without pay from the Board of Water Supply in order to accept the new employment. About six months after beginning his work for Pleasantville Constructors, the taxpayer entered into an agreement to begin work for the Nassau Engineering Company as soon as his obligations to Pleasantville Constructors were fulfilled. At that time it was contemplated that he would not complete his work for Pleasantville Constructors until well into the following year and that his connection with Nassau Engineering Company would be a matter of years. His employment with Pleasantville Constructors ended about a year after the agreement with Nassau Engineering Company was entered into and he then went to work for the Nassau Company. He continued that employment for about fifteen months and it then terminated, due to war conditions. Other cases were cited by the trial court, and the taxpayer brings to our attention still others. But some of them were decided before the statute was amended -and others are not fairly comparable in respect to factual situation.

The judgment is reversed and the cause remanded with directions to dismiss the action.