concurring: Petitioner asks for construction of certain provisions of the Internal Revenue Code, sections 22 (a); 22 (b) 8; 116 (h); 212; and 211. He contends that the Congress could not have intended that the income in question should be subject to income tax of the United States Government. On the point of intent, he makes a unique argument that the Congress should be presumed not to have intended application of these statutory provisions in a way which he contends would be in derogation of principles of international law. Sympathetic study of petitioner’s arguments and theories leads to the conclusion, in my opinion, that the principles of international law referred to can not be employed in judicial construction of the pertinent statutory provisions. A realistic view must be that the Congress, in considering and enacting domestic or internal legislation, was not thinking anything about the possible conflicts or harmony with principles of international law, and it is of no avail to seek to determine the legislative intent relating to the internal revenue statutes against the history and growth of principles of international law. The plight of the petitioner, since he regards the respondent’s determination as inequitable, must be said to be due to an absence of legislation to cover an unanticipated situation. Petitioner must admit that his indefinite stay in the United States and the initial entrance constitutes an unusual situation. If it is assumed that the courtesies which have been extended by the Government in the matter of entry into and temporary stay in the United States should be extended to exemption from the internal revenue statutory laws as a matter of comity, the Congress is probably the only branch of the Government which is able to deal with the matter, unless the executive branch officials are at present authorized to solve the problem in some way, which seems doubtful.
The type of relief sought here through judicial processes is blocked by the pattern of our constitutional system of government, which divides authority among the legislative and executive, “the political” departments of the Government, Oetjen v. Central Leather Co., 246 U. S. 297; Trost v. Tompkins, 44 Atl. (2d) 226; Sevilla v. Elizalde, 112 Fed. (2d) 29; and the judicial. And even the argument about the possible influence of principles of international law runs against the fact that petitioner, although an official of the League of Nations, with a diplomatic status under article 7 of the Covenant of the League, was not sent here on an official mission to or with the Government of the United States. Without credentials to our Government on some diplomatic mission, or official, even assuming diplomatic status to exist from the standpoint of the League, petitioner would appear to be in no better position than a person of diplomatic status in the territory of another state than that to which he is accredited.1 It would appear that the Government of the United States is not under any obligation, under international law or treaty or act of Congress, to grant the immimity from taxation of income, which is really what petitioner desires. See Ogdon, Juridical Bases of Diplómate Immunity, 1936, pp. 189-191.
The Congress has declared the position which the Government must take with respect to the League of Nations in the statute authorizing the United States to accept membership for the Government of the United States in the International Labor Organization, an international organization which was under the League. The statute, enacted June 19,1934, provides: “But in accepting such membership the President shall assume on behalf of the United States, no obligation under the Covenant of the League.” 48 Stat. 1183; U. S. C. A., Title 22, pars. 271, 272.
Petitioner’s second approach is under subsection (h) of section 116, enacted as an amendment to the 1934 Revenue Act under a special bill, H. R. 7998, passed on August 27, 1935; 49 U. S. Stat. at Large, 908 (ch. 767). Senate Report No. 632 (Committee on Foreign Relations) ; and House Report No. 1759 (Ways and Means Committee), 74th Cong., 1st sess., give full report of the reasons for amending section 116. The answer to petitioner’s argument about the intent of Congress with respect to subsection (h) is that the Congress did not give any “blanket” authorization to the Treasury Department to continue all of its prior practices under a broad policy, but gave authority to exclude from taxation only specified income to the extent specifically stated in the statute.
Petitioner cites Estate of Alexander J. Shamberg, 3 T. C. 131; affd., 144 Fed. (2d) 998, for purposes of considering construction of section 116 (h). I think that the rationale of the Shamberg case can not be employed in construing section 116 (h), because the customs under international law are exacting and precise in matters of defining “state,” “foreign government,” “international organization,” “instrumentality of a state,” and officials, employees, and the rank and status thereof; because the United States was not a member of the League of Nations; and for constitutional reasons.
Upon consideration of tlie elaborate arguments of petitioner, I believe all of them must be considered to be ineffective, and that his only recourse is to appeal to the Congress for a special, private act of Congress.
Johnson, /., agrees with the above.See Wheaton’s International Law, 6th English ed. (1929), by A. B. Keith, vol. 1, p. 468 :
“Bynkershock maintains that ambassadors, passing through the territories of another state than that to which they are accredited, are amenable to the local jurisdiction: both civil and criminal, in the same manner with other aliens, who owe a temporary allegiance to a state.”