DocketNumber： 91-2282
Filed Date： 7/7/1992
Status： Precedential
Modified Date： 9/21/2015
July 7, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2282
JOHN H. WHITEHOUSE AND
CAROL A. WHITEHOUSE,
Petitioners, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent, Appellee.
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ERRATA SHEET
The opinion of this Court issued on April 29, 1992, is
amended as follows:
On page 5, Line 4 delete "at 7" and insert "3,7 (1st Cir.
1986)".
April 29, 1992
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No. 91-2282
JOHN H. WHITEHOUSE AND
CAROL A. WHITEHOUSE,
Petitioners, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES TAX COURT
[Hon. Herbert L. Chabot, U.S. Tax Court Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Izen & Associates, P.C. and Joe Alfred Izen, Jr., on
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appellant's Response to Motion to Transfer.
James A. Bruton, Acting Assistant Attorney General, Gary R.
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Allen, Gilbert S. Rothenberg and Doris D. Coles, Attorneys, Tax
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Division, Department of Justice, on Memorandum in Support of
Motion to Transfer.
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Per Curiam. This appeal springs from a decision of the
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Tax Court. The government, contending that venue properly
lies in the Second Circuit, has moved to transfer.
Venue over appeals from decisions of the Tax Court is
governed by 26 U.S.C. 7482(b). In "the case of a
petitioner . . . other than a corporation," venue lies in the
circuit in which the petitioner's "legal residence" is
located. 26 U.S.C. 7482(b)(1)(A). Thus, the essential
question is: where do the Whitehouses "reside?"
According to the petition that the Whitehouses filed in
the Tax Court, their legal residence is in West Suffield,
Connecticut -- which of course lies in the Second Circuit.
That would end the matter, except that, in opposing the
government's motion to transfer, the Whitehouses submitted an
affidavit in which Mrs. Whitehouse swore that although she
and her husband "did reside at an address in West Suffield,
Connecticut, the boundary line between Connecticut and
Massachusetts ran through our front yard." The Whitehouses
argue that this means they "resided partly within the State
of Connecticut and partly within the State of Massachusetts,"
and, we take it, that venue was therefore proper in the First
Circuit as well as the Second Circuit.
We disagree. For purposes of determining venue under
section 7482, the term "legal residence" means "domicile."
Brewin v. Commissioner of Internal Revenue, 72 T.C. 1055
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-3-
(1979), rev'd on other grounds, 639 F.2d 805 (D.C.Cir. 1981).
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A person can have only one domicile at a time. General
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Electric Co. v. Cugini, 640 F.Supp. 113, 115 (D.P.R. 1986).
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See also Shafer v. Children's Hospital Society, 265 F.2d 107,
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120-21 (D.C.Cir. 1959); Hardin v. McAvoy, 216 F.2d 399, 403
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(5th Cir. 1954); Syme v. Rowton, 555 F.Supp. 33, 36 (D.Mont.
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1982). The Whitehouses' "legal residence" for venue purposes
is either in Massachusetts or in Connecticut; it cannot be in
both states.
Although the one-domicile rule ordinarily finds
expression in cases where the person has two or more
residences, it has also been applied to cases where the
person has one residence that lies in two jurisdictions. For
example, in Blaine v. Murphy, 265 F. 324, 325 (D.Mass. 1920),
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the defendants in a diversity-jurisdiction case lived at the
State Line Hotel, on the border of Massachusetts and New
York. The court decided that for diversity purposes the
defendants were domiciled in Massachusetts because "[t]he
place where a person habitually eats, sleeps and makes his
home is his domicile," and "the part of the hotel in which
the defendants habitually eat and sleep is in Massachusetts."
Id. See also Teel v. Hamilton-Wenham Regional School
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District, 433 N.E.2d 907 (Mass.App. 1982) ("it may generally
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be said that one resides in the jurisdiction in which he
sleeps"); Abington v. North Bridgewater, 23 Pick. (Mass.) 170
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(1840) ("if a man has a dwellinghouse, situated partly within
one jurisdiction and partly in another . . . he shall be
deemed an inhabitant within that jurisdiction, within the
limits of which he usually sleeps"). See generally 28
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C.J.S., Domicile 14.
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Applying this "follow the pillow" principle to the
record here, we conclude that the Whitehouses are domiciled
in Connecticut. Before we received Mrs. Whitehouse's
affidavit, there was nothing in the record that would even
remotely suggest that the Whitehouses made their home or any
part of it in Massachusetts. Rather, the allegation in the
Tax Court petition that the Whitehouses are "citizens" of
Connecticut, and the fact that the house has a Connecticut
address, create a strong inference to the contrary in the
mind of the reader.
Mrs. Whitehouse's affidavit is ambiguous at best. It
says that the Massachusetts-Connecticut border runs through
the front yard. This pretty clearly tells us that the house
is entirely in one state -- but it does not tell us which
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state. We conclude, therefore, (1) that the affidavit is
insufficient to negate the strong inference of Connecticut
residence that the Whitehouses' own previous submissions have
raised, (2) that the Whitehouses are domiciled and have
"legal residence" in Connecticut, and (3) that the
appropriate action is to transfer their appeal to the Second
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Circuit. See 28 U.S.C. 1631 (authorizing federal courts to
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transfer actions and appeals to court in which action or
appeal could have been brought); Dornbusch v. Commissioner of
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Internal Revenue, 860 F.2d 611 (5th Cir. 1988) (appeals court
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has both inherent and statutory authority to transfer Tax
Court appeals to proper venue); Clark & Reid Co. v. United
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States, 804 F.2d 3,7 (1st Cir. 1986) (court of appeals has
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"inherent discretionary power" to transfer proceeding to
another circuit).
It is ordered that this appeal be transferred to the
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United States Court of Appeals for the Second Circuit.
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