No. 170-77 | Ct. Cl. | Jun 22, 1978
Lead Opinion
This pro se personal income tax case comes before the court without oral argument on the parties’ cross-motions for summary judgment. Plaintiff brings suit for the recovery of income taxes paid on the income earned by her husband in Spain in 1975. She is a Spanish national, who has resided in Spain her entire life. Her husband, whom she married in Spain in 1972, is a United States citizen; he regards the United States as his permanent home and is apparently domiciled in Kansas, a noncommunity property state. He is a member of the United States Navy and performed his duties in Spain in 1975. Mrs. West claims that under the Spanish Civil Code,
The defendant contends that community interests in income are determined by the law of the domicile of the earner of the income rather than by the matrimonial domicile and that plaintiffs husband is a domiciliary of the United States. However, for the year 1975 (see note 2, supra) the determinative issue is the ownership of the income, and that is decided under local law. United States v. Mitchell, 403 U.S. 190" court="SCOTUS" date_filed="1971-06-07" href="https://app.midpage.ai/document/united-states-v-mitchell-108366?utm_source=webapp" opinion_id="108366">403 U.S. 190 (1971); Poe v. Seaborn, 282 U.S. 101" court="SCOTUS" date_filed="1930-11-24" href="https://app.midpage.ai/document/poe-v-seaborn-101621?utm_source=webapp" opinion_id="101621">282 U.S. 101 (1930). The domicile of the wage earner is relevant only to the extent that it determines the ownership of the income. In Santiago v. Commissioner, 61 T.C. 53" court="Tax Ct." date_filed="1973-10-17" href="https://app.midpage.ai/document/santiago-v-commissioner-4482595?utm_source=webapp" opinion_id="4482595">61 T.C. 53 (1973), aff'd per curiam, 75-1 U.S.T.C. ¶9273 (D.C. Cir. 1975), the taxpayer, a United States citizen, worked for the United States Government in Spain; he also had married a Spanish national, but in Gibraltar. The court was of the view that he was domiciled in Spain, though it did not need to decide the point, given Spanish law in regard to the ownership of the income. Under Article 1325 of the Spanish Code,
In the case before us, the defendant has made no attempt to refute the plaintiffs contentions on applicable Spanish law concerning community property; plaintiff has supplied the court with a certified translation of Article 1315, which supports her position that she has a half interest in her husband’s earnings. Therefore, we feel entitled to find that the income earned by the plaintiffs husband is subject to the community property laws of Spain.
IT IS THEREFORE ORDERED AND CONCLUDED that the plaintiff’s motion for summary judgment is granted, that the defendant’s motion therefor is denied, and that the plaintiff is entitled to a refund of $611.82, plus interest as provided by law.
The certified translation of the Spanish Civil Code provided by the plaintiff reads as follows:
ARTICLE 1315. Persons to be married can draw up their marriage articles before the celebration of said marriage, stipulating the conditions of the conjugal society, in regard to present and future property, with no other limitations than those set forth in this Code.
In the absence of said contract regarding property, it will be understood that the marriage is contracted under the legal system of — community property.
ARTICLE 1325. If marriage is contracted in a foreign country between a Spanish
I.R.C. § 879(a)(1), which would appear to cover factual situations such as the one in the present case is applicable only to taxable years beginning after December 31, 1976. Under that provision, all of the earned income is attributed to the spouse who rendered the personal services notwithstanding any community property laws.
See note 1 supra. The translation appearing in the Tax Court opinion does not appear to differ substantively from the one supplied by the plaintiff in the present case.
The facts of this case appear to be substantially equivalent to those of Minor v. United States, 215 Ct. Cl. 1053" court="Ct. Cl." date_filed="1978-02-09" href="https://app.midpage.ai/document/minor-8596176?utm_source=webapp" opinion_id="8596176">215 Ct. Cl. 1053 (1978); that case was before the court on the defendant’s motion for summary judgment, which was denied without prejudice because of the defendant’s failure to brief Spanish law. That case also was a pro $e case, involving only $294.02 before interest. We noted in our order our displeasure with the defendant’s refuting a contention that the plaintiff never made instead of confronting the legal issues. The defendant here again ignores the issue of Spanish law, contending instead that the domicile of the income owner is dispositive, even though the Government must have been familiar with our prior order in which we indicated our desire for further information on Spanish law (the order is cited in defendant’s brief). In view of this failure to brief the applicable Spanish law, we feel entitled to decide the question in favor of the plaintiff, even though her submissions are pro se and it would otherwise be desirable to have more information.
Rehearing
On Motion for Rehearing
This case comes before this panel of the court on defendant’s motion for rehearing of the order entered in the case on June 22, 1978, and on the refusal of the active judges of the court (as indicated in the order of September 29, 1978) to rehear the case en banc.
In our original order of June 22, 1978 we described the case as follows: "This pro se personal income tax case comes before the court without oral argument on the parties’ cross-motions for summary judgment. Plaintiff brings suit for the recovery of income taxes paid on the income earned by her husband in Spain in 1975. She is a Spanish national, who has resided in Spain her entire life. Her husband, whom she married in Spain in 1972, is a United States citizen; he regards the United States as his permanent home and is apparently domiciled in Kansas, a noncommu-nity property state. He is a member of the United States Navy and performed his duties in Spain in 1975. Mrs. West claims that under the Spanish Civil Code, [footnote omitted] if two parties enter into a marriage in Spain with no antenuptial agreement, the marriage is subject to the community property laws of Spain. It is her theory that since the income earned by her husband in 1975 for services performed in Spain is non-United States source income (I.R.C. § 862(a)(3)) and she is a nonresident alien who was married in Spain without any antenuptial agreement, her half share of her husband’s 1975 income is nontaxable.”
We held in the order of June 22, 1978 that (a) the law of Spain determined (for the taxable year 1975)
In response to the rehearing motion we have gone into the matter anew but have found no decision and no authority controlling the particular situation now before us. There are, however, certain general rules (with respect to ownership of marital property) which seem to be accepted. First, there is a category of cases in which the spouses, both domiciled and resident in the same state, receive income from the state of residence. In those circumstances, the law of the domicile governs, there being no other state with an equal or predominant interest. Sec, e.g., United States v. Mitchell, 403 U.S. 190" court="SCOTUS" date_filed="1971-06-07" href="https://app.midpage.ai/document/united-states-v-mitchell-108366?utm_source=webapp" opinion_id="108366">403 U.S. 190 (1971); Poe v. Seaborn, 282 U.S. 101" court="SCOTUS" date_filed="1930-11-24" href="https://app.midpage.ai/document/poe-v-seaborn-101621?utm_source=webapp" opinion_id="101621">282 U.S. 101 (1930); Restatement (Second) of Conflicts, § 258(2) (1971) (unless there is a contract to the contrary; great weight is given to the law of the state where both spouses were domiciled at the time personal property is acquired).
A second category of cases consists of those situations in which the spouses, both domiciled and resident in the same state, receive income from a state other than that of their residence. Here, too, the general rule seems to be that the law of the domiciliary state (which is likewise the state of both spouses’ residence) controls. See Zaffaroni v. Commissioner, 65 T.C. 982" court="Tax Ct." date_filed="1976-02-17" href="https://app.midpage.ai/document/zaffaroni-v-commissioner-4483070?utm_source=webapp" opinion_id="4483070">65 T.C. 982, 989 (1976), and cases cited; Commissioner v. Porter, 148 F.2d 566" court="5th Cir." date_filed="1945-04-11" href="https://app.midpage.ai/document/commissioner-of-internal-revenue-v-porter-1503678?utm_source=webapp" opinion_id="1503678">148 F. 2d 566, 569 (5th Cir. 1945); Shilkret v. Helvering, 138 F.2d 925" court="D.C. Cir." date_filed="1943-11-01" href="https://app.midpage.ai/document/shilkret-v-helvering-1481776?utm_source=webapp" opinion_id="1481776">138 F. 2d 925 (D.C. Cir. 1943).
Still another category involves spouses with different domiciles, and the earner receives income in the state of his or her residence and domicile. Again, the earner’s domicile controls ownership, but we think it significant that that is also the state of residence and of the earning of the income. See Birmingham Waterworks Co. v. Hume, 121 Ala. 168" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/birmingham-water-works-co-v-hume-6517934?utm_source=webapp" opinion_id="6517934">121 Ala. 168, 25 So. 806 (1899); Hunt v. Commissioner, 22 T.C. 228" court="Tax Ct." date_filed="1954-04-30" href="https://app.midpage.ai/document/hunt-v-commissioner-4476760?utm_source=webapp" opinion_id="4476760">22 T.C. 228 (1954); Owens v. Commissioner, 26 T.C. 77" court="Tax Ct." date_filed="1956-04-16" href="https://app.midpage.ai/document/owens-v-commissioner-4477477?utm_source=webapp" opinion_id="4477477">26 T.C. 77 (1956); Lord v. Commissioner, 60 T.C. 199" court="Tax Ct." date_filed="1973-05-14" href="https://app.midpage.ai/document/lord-v-commissioner-4482414?utm_source=webapp" opinion_id="4482414">60 T.C. 199 (1973), aff’d in relevant part, 525 F.2d 741" court="9th Cir." date_filed="1975-10-14" href="https://app.midpage.ai/document/robert-p-lord-appellee-cross-appellant-v-commissioner-of-internal-revenue-appellant-cross-appellee-331250?utm_source=webapp" opinion_id="331250">525 F. 2d 741 (9th Cir. 1975).
None of these classes includes what we now have before us — husband and wife domiciled in different places (Kansas and Spain), residing in one place (Spain), which is also the jurisdiction where the money was earned. In that situation
We think that, in Articles 1315 and 1325 of the Spanish Civil Code,
For these reasons, we deny defendant’s motion for rehearing and adhere to our judgment that plaintiff is entitled to a refund of $611.82, plus interest as provided by law.
It is so ordered
The Internal Revenue Code was changed for taxable years beginning after December 31, 1976.
The certified translation of the Spanish Civil Code provided by the plaintiff reads as follows:
ARTICLE 1315. Persons to be married can draw up their marriage articles before the celebration of said marriage, stipulating the conditions of the conjugal society, in regard to present and future property, with no other limitations than those set forth in this Code.
In the absence of said contract regarding property, it will be understood that the marriage is contracted under the legal system of — community property.
ARTICLE 1325. If marriage is contracted in a foreign country between a Spanish husband and a foreign wife or a foreign husband and a Spanish wife, and no declarations or stipulations are made regarding property, it will be understood that when the Spanish party is the husband, the marriage comes under the community property system, and when the Spanish party is the wife, the marriage will come under the general law in the country of the husband; the aforesaid does not effect [sic] what is established in this Code regarding real property.
Neither party contends that the ownership of the earnings of plaintiffs husband should be influenced by the fact that he was a United States serviceman or that his earnings consisted of Navy pay.
Concurrence Opinion
concurring in the result:
The husband of Señora West does not present the ordinary case of an American civilian resident in a foreign country, e.g., a missionary, a journalist, or a representative of General Motors. He belongs to the Armed Forces of the United States, and is, or in 1975, was present in Spain on active duty. The court’s order, though it reaches the right result, in my view, ignores this aspect of the case and should not do so.
In Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812), Mr. Chief Justice Marshall had occasion to consider the legal status of members of armed military contingents in friendly foreign countries. He had before him an attempted attachment (technically libel) on a French naval vessel in an American port, but, according to his wont, he addressed the problem in its general aspects, and there can be no doubt he meant to state reciprocal rules applicable to American contingents abroad, whenever there might be such. He has been often cited since. According to him, the territorial sovereign could exclude the contingent entirely, or admit it on any terms he pleased, including complete and utter subjection to all provisions of local or municipal law. If, however, such terms were not expressed in the act of admission, the friendly foreign contingent carried with it its own laws and enjoyed an almost complete immunity from local law. Marshall said the sovereign’s assent to this was implied, the contrary not being asserted. It was "a waiver of all jurisdiction, * * * and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require.” p. 140.
When, after World War II, it became apparent that the presence of American contingents on friendly foreign soil would long endure, our policy makers determined that
How Marshall would see it we can never know for sure, but it appears to me that the implied assent of Spain to immunity of American military personnel, whatever its full scope may be, primarily relates to internal and disciplinary matters and cannot be extended to transactions with Spanish nationals and voluntarily entered under the very wing of Spanish law. The implications are all the other way, in such a case. An American soldier, sailor, or airman in Spain, wishing to marry a Spanish national, could take her outside the country for the nuptials, or make a pre-nuptial agreement as the Code specifies. The performance of weddings is in civil law countries a governmental function. The American service bridegroom who takes his Spanish bride to a Spanish registry office, or whatever the facility is called in that country, with no prenuptial agreement, indicates by the strongest implication that the marriage will be governed by Spanish law in all its incidents. Under the Spanish code, it is plain he has agreed by contract to the system of community property. His superiors could have forbidden such marriages, or they could have made an agreement with the Spanish concerning them, or they could have obtained legislation. In the instance of the Wests, they did none of those things so far as we are told, and, therefore, they consented by implication too.
I am not much concerned by the fact that neither party urged the points above-expressed. Defendant took a stand we all reject as unsound. Plaintiff, pro se, did not argue the
Rehearing
September 29, 1978
On Motion for Rehearing
This case comes before the court on defendant’s motion for rehearing of the order in this case of June 22,1978, and on defendant’s suggestion that the rehearing be en banc. The active judges of the court having voted not to rehear the case en banc, the motion for rehearing will be considered by the panel listed above which entered the order of June 22, 1978. Before passing on that motion, the panel directs the Government to file within 30 days of this order a supplemental brief on the following two matters:
1. The precise reasons why the Government believes that Spanish law (including Spanish conflict-of-laws rules) does not determine, for federal income tax purposes, the ownership by plaintiff of one-half of the earnings involved here and her freedom from tax thereon under the Internal Revenue Code. (In this connection, the supplemental brief should discuss the applicability of United States v. Mitchell, 403 U.S. 190" court="SCOTUS" date_filed="1971-06-07" href="https://app.midpage.ai/document/united-states-v-mitchell-108366?utm_source=webapp" opinion_id="108366">403 U.S. 190 (1971) and Poe v. Seaborn, 282 U.S. 101" court="SCOTUS" date_filed="1930-11-24" href="https://app.midpage.ai/document/poe-v-seaborn-101621?utm_source=webapp" opinion_id="101621">282 U.S. 101 (1930), to this case).
2. If the law of Kansas applies, whether the conflicts-of-law rules of Kansas would look, in these circumstances, to Spanish law to determine ownership by the plaintiff of one-half of the earnings involved.
Plaintiff is also invited, if she wishes, to file a supplemental memorandum on those two matters within 30 days of this order. The Clerk is directed to send copies of this order and of the order of June 22,1978 to the plaintiff in Minor v. United States, 215 Ct. Cl. 1053, and to counsel for the plaintiffs in Dilsa M. Briem v. United States, No. 207-77 and in Eric Lane-Burslem v. United States, No. 88-76, all of whom are invited, if they wish, to file briefs amici curiae on the two matters set forth above. Such briefs should likewise be filed within 30 days of this order.
It is so ordered.