dissenting: The basic and fundamental purpose of the community property law is to afford a modicum of protection to the wife, domiciled in the state. We should, therefore, in passing upon what amounts to a belated claim by this petitioner that one-half of his income should be exempted from tax, require that he establish, by a preponderance of the evidence, that his wife was domiciled in the State of California during the taxable year.
The only evidence upon which a conclusion can be based is the testimony of petitioner. He stated that in 1922 he and his wife separated; that the last place they lived together was in Edmonton, in the Province of Alberta; that after the separation he continued to live in Edmonton and the wife went to Toronto in the Province of Ontario; and that he and his wife had “never been domiciled together in the United States in any of its 48 states.” In response to a question as to where his wife was living at the time of the hearing he stated: “Well, I think she is in Toronto.” Upon cross-examination he stated that at the time of his marriage it was the intention of his wife and himself that a home be maintained in Alberta, Canada, and that neither, at that time, had any intention of establishing a home in any other locality. When asked whether he and his wife had ever changed that intention he replied," “No.”
After hisi wife left him in 1922 he remained in Alberta and continued to vote there at elections, leaving Alberta in 1924 or 1925 when he went to England. He did not consult with his wife about his trip to England, nor did he consult with her about his trip to the United States in 1929. When asked whether the separation, which had taken place in 1922, was temporary or permanent he stated: “It *1045was pretty permanent.” He elaborated this answer by stating: “Although it was not — I mean you could hardly call it official until probably, I think, 1928 or 1929.” Counsel then asked him to explain the word official, to which he responded: “Well, it wasi a silly word to use. I really meant that it was perhaps more definitely understood.”
In the prevailing opinion it is stated that the wife can not be said to have deserted her husband. This is the caveat upon which the conclusion is predicated that her domicile during the taxable year was “that of her husband.” The conclusion might be sound if the parties had been united in marriage in California, if they had lived together as husband and wife within that state, or if they had been living together elsewhere when the husband decided to change the “matrimonial domicile” and the wife had refused to accompany him to the new state. But it is not an absolute rule of law that the wife can not, when necessary, establish her own domicile. Cf. Cheever v. Wilson, 9 Wall. 108; Haddock v. Haddock, 201 U. S. 562; and Watertown v. Greaves, 112 Fed. 183. The California statutes give her the right to do so when she desires to institute an action for divorce. (Sec. 129, Civil Code of California, 1933. Deering.) But the statute is an enabling act; and it should not be construed as preventing the wife from acquiring a separate domicile, when necessary. In the case cited by the majority (Wickes’ Estate, 128 Cal. 270; 60 Pac. 867) the soundness of the rule enunciated by Mr. Justice Swayne in Cheever v. Wilson, supra — “[The wife] may acquire a separate domicile whenever it is necessary or proper for her to do so” — is recognized, the court saying: “Supposing this rule to apply to a domicile for other purposes than divorce, this case is still not within it.”
But, leaving for the moment the California statutes and decisions, it seems to be clear that the wife — assuming, as the prevailing opinion holds, that she had not deserted her husband — had actually established a separate domicile.
In Restatement of the Law — Conflict of Laws — pp. 51, 52, it is said:
Par. 28. Domicile of Wipe Living Apart prom Husband. If a wife lives apart from her husband without being guilty of desertion according to the law of the state which was their domicile at the time of separation, she can have a separate domicile.
Under “Comment” it is said:
If a wife lives apart from her husband without being guilty of desertion, she can retain her domicile, although he changes his domicile.
When the wife left the husband in 1922 in Edmonton in the Province of Alberta and went to live in the Province of Ontario, it is obvious that she was endeavoring to establish a domicile separate from his domicile. If we accept the view of the majority, then her domicile *1046has, since 1922, been Toronto. If, on the other hand, it be held that the wife was guilty of desertion when she left her husband in 1922— (see definitions, sec. 95 et seq. Civil Code of California 1933 Peering) — surely he ought not be penalized to the extent of being required to give her half of his earnings merely because he took up a temporary abode in Hollywood! The California statutes provide otherwise. See sec. 175, Civil Code 1933.
The instant proceeding presents an anomalous situation to say the least. Petitioner, according to his own sworn testimony, gave his wife no part of his California earnings and never even asked her to share “the place or mode of living selected by” him. (Secs. 103, 104, and 156 Civil Code, supra.) He did not even advise her as to the amount of his earnings. Yet, says he, the Government should look to her for half the tax. If that be so — though I do not believe that it is — then petitioner by his own admissions has shown himself to be liable not only for the tax, as a withholding agent under the provisions of sections 143 and 211 et seq. of the Eevenue Act of 1934, but also for the interest and penalties. (Sec. 143 (c), Eevenue Act of 1934.)
Being of the opinion that the Commissioner’s determination should be upheld, I respectfully note my dissent.
Smith, Turner, and Offer agree with this dissent.