*1288 Petitioner removed with his family from Seattle to Los Angeles under a contract of employment that made necessary his residence in Los Angeles, either permanently or for an indefinite time, sold his residence in Seattle, resigned his membership in social clubs there and declared his intention to make Los Angeles his permanent home. Held, petitioner was not thereafter domiciled in the State of Washington.
*879 Deficiencies in income tax for the years 1924 to 1927, inclusive, in the respective amounts of $14,370.29, $1,697.82, $108.31, and $492.17 have been determined by the Commissioner in these two appeals, which have been consolidated for hearing and decision. The sole question involved is whether the legal residence of the taxpayer for the years named was within the State of Washington.
FINDINGS OF FACT.
L. B. Peeples, the petitioner, is an individual who was born in northern California, but for 9 years prior to the year 1902 was a resident of Portland, Oregon, and for the last four years of that time was*1289 branch manager of the Crane Company at that place. The Crane Company was and is a corporation, with its main office and place of business at Chicago, Illinois, with many branches located throughout the United States and Canada, and it was and *880 still is engaged in manufacturing and selling pipe fittings, valves and plumbers' materials. In 1902 petitioner was transferred by his employer, the Crane Company, from Portland to Seattle, Washington, and made manager for that company at Seattle, as he had been at Portland. In April 1902, petitioner was married and he and his wife have lived together as man and wife ever since. Soon thereafter petitioner purchased a lot in Seattle and built seven stores thereon for rent, which stores he still owns and upon which he pays about $2,700 a year in taxes. In 1908 petitioner purchased another lot in Seattle upon which he built a home, which he and his wife and daughter occupied until January 1922. In November 1921, the Crane Company's branch business at Los Angeles, California, was not in satisfactory condition, and the company offered petitioner a promotion, with larger salary than he was receiving at Seattle, if he would go to Los*1290 Angeles and take charge of the company's business there on January 1, 1922. The petitioner, his wife and their daughter were much attached to Seattle as a place in which to live, and had many friends there, and their relatives lived principally in Portland and Tacoma. When the offer of employment at Los Angeles had been made to petitioner he consulted with his friends about accepting it. At all times after petitioner was first employed by the Crane Company, he understood that if he kept in the company's employment he was subject to its orders as to his place of residence. Petitioner has been continuously in the employment of the Crane Company since about 1898, and has at all times hoped to continue in such employ until he should retire from all employment. His friends advised him to accept the offer to go to Los Angeles. One close friend thought and agreed with petitioner, that it was an excellent thing to try out, and said to him: "Of course you have your home here and you can come back here if things do not go the way they might go." Another friend told him he would be sorry to see him leave Seattle, but he thought petitioner would be standing in his own light if he did not*1291 go. His brother-in-law thought it a "wonderful opportunity." Petitioner decided to accept the offer and go to Los Angeles, but expressed the hope that he could eventually return and make his home in Seattle; if not before, when he had made enough to retire. Petitioner wired the office in Chicago accepting the offer and agreeing to go to Los Angeles, and placed his home in Seattle with a friendly real estate agent for sale. He sold the home early in January, 1922, about the time he left with his family for Los Angeles. Before leaving Seattle, on December 28, 1921, petitioner wrote The Rainier Club of Seattle, Washington, of which he was a member, as follows: "Gentleman: Inasmuch as the writer is moving to Los Angeles to make his permanent home after January first, it is with considerable regret that he is called upon to ask you *881 to accept his resignation as a member of The Rainier Club." This membership in The Rainier Club had been purchased by the Crane Company for petitioner and he supposed the courtesy would be accorded by the company to his successor at Seattle. Petitioner at the same time resigned his membership in other social clubs at Seattle. Petitioner and*1292 his wife each voted at Seattle while they were living there prior to January, 1922, but have not voted there or elsewhere since. They continued to file their income tax returns at Tacoma, Wash., after going to Los Angeles, including the years here under review. After removing to Los Avgeles in January, 1922, petitioner lived in rented houses, hotels, and apartments at Los Angeles, Santa Barbara and Pasadena, until 1926, when he purchased a lot in Pasadena upon which he built a house which he occupied with his family as a home. At some time since, the house has been rented, but for what length of time and for what reason was not made to appear. Petitioner still owns the house and lot, although it has been on the market for sale for some time.
During 1926 petitioner was a witness in court in Los Angeles and testified that he had been a resident of Los Angeles ever since January, 1922. In explanation of this testimony he testified on the hearing in this proceeding: "I couldn't have given any other testimony. So far as I could see I couldn't say that my legal residence was in the State of Washington at that time. I merely gave the testimony as to my domicile at that moment."
*1293 In 1928 petitioner was made vice president of the Crane Company and given charge of the business of the company on the entire west coast, with privilege of residing whereever he pleased. Many of his duties at Los Angeles were at that time and have been since delegated to an assistant, and thereafter petitioner spent much time - possibly more than half - away from Los Angeles. At the time of the hearing in these proceedings, June, 1932, petitioner and his family were still living in Los Angeles. At various times after January, 1922, petitioner has gone on business to Seattle, and on some occasions his wife has accompanied him, and he and his wife and daughter have each visited Seattle numerous times since January, 1922.
OPINION.
SEAWELL: The Commissioner has determined that the petitioner and his wife during the years here under review were not legal residents of the State of Washington, but of the State of California, and accordingly they should not have filed income tax returns on the community property basis. The petitioner controverts the position of the Commissioner and rests his appeal solely upon the ground that he was a legal resident of Washington during said years. *1294 The *882 interests respectively of husband and wife in community property during the life of the husband are determined by the law of the domicile. In Washington the wife's interest is vested, whereas in California it was, for the years here involved, a mere expectancy - Norman De Vaux,14 B.T.A. 205">14 B.T.A. 205. Hence the materiality of the place of the petitioner's legal residence. What is meant by residence is sometimes difficult to define with accuracy. Under the Roman law it is said that a man's residence is the place where his family dwells, or which he makes the chief seat of his affairs. The words residence and domicile are often used synonymously, but domicile is the more inclusive word. Any temporary place of abode may be a residence, but a domicile is a place of abode fixed and permanent, or, at least, of indefinite duration. (See Standard Dictionary, word "domicile.") Time alone, however, does not necessarily mark the distinction, for a temporary residence may extend over months or even years, while a domicile may be established by the first moment of occupancy. *1295 Mitchell v. United States,21 Wall. 350">21 Wall. 350, 353; Gilbert v. David,235 U.S. 561">235 U.S. 561. The distinction is largely one of intention, but evidenced by conduct rather than by declarations of the party. In determining the question of temporary residence or domicile, "we are not limited to, or necessarily bound by, expressions of the party." Rogers Hornsby,26 B.T.A. 591">26 B.T.A. 591; Corel v. Chicago, R.I. & P. Ry. Co.,123 Fed. 452. Perhaps the best definition of legal residence or domicile which can be used to clarify our difficulty here is that found in Marston v. Watson,129 Pac. 611, 612: "The place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he returns iv seasons of repose." The often quoted definition or description of Judge Story (Conflict of Laws, 7th Ed., sec. 46, p. 41) is to the same purport: "If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention*1296 to return at some future period."
Legal residence as here involved and as mentioned in the applicable statutes (Revenue Acts of 1921 and 1924, sec. 227(b), and in Treasury Regulations 65, art. 446), it is conceded, means domicile as contradistinguished from temporary residence. And where one lives is deemed to be his domicile, nothing else appearing. In the often quoted opinion of the United States Supreme Court (Ennis v. Smith,14 How. 400">14 How. 400, 423), it is said: "When there is a removal, unless it can be shown or inferred from circumstances that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profession, office, or calling, it does *883 change the domicil * * * the place of residence is prima facie the domicil."
There is no contention that when the petitioner left Portland and went to Seattle to live, his domicile in Oregon ceased and that a new domicile at once began in Washington. It required no declaration of purpose to accomplish this result. There is no practical distinction, so far as the law of the case is concerned, between the removal from Portland and the removal from Seattle. *1297 At Seattle petitioner was an older man; he had accumulated property; he had a wife and daughter; he had a home and doubtless the circle of his friends had materially widened. It was this situation that called for the consultation with friends. Their advice was not sought about a temporary change of residence; it was as to the breaking up of ties of two decades of happy associations. The advice of his friends to accept and go agreed with the dictates of sound judgment and apparently with petitioner's own predilection. He wired his acceptance of the offer, placed his house with a friendly realtor for sale, resigned his membership in The Rainier Club, and other clubs, stating that he was thereafter making his "permanent" home in Los Angeles. The talk at the time about "trying out" the proposition did not change the fact that he was going to California to reside permanently, or, at least, for an indefinite time. Such talk and expression of a "floating intention" sometime possibly to return could not overcome the stronger and more definite actions and expressions of the petitioner. *1298 Lee Rosenberg,10 B.T.A. 601">10 B.T.A. 601, 613. Then too, if there was a "try out" of the proposition, the residence in California seems to have proven satisfactory. In 1926 he built and occupied a new home in Pasadena. In 1928, when promoted to the vice presidency of his company and placed in charge of all its west coast agencies, including Seattle, with privilege to reside, as he testified, wherever he desired, he never returned to his old home in Washington State, but continued to make his home in California.
We have not overlooked the contention of petitioner's counsel, and the authorities cited in support thereof, to the effect that in the State of Washington one does not lose his right to vote by absence from the state on business, provided he has not claimed or exercised the right elsewhere; and that, in analogy to a divorce proceeding brought by one an actual resident of the state against a spouse also actually residing there at the time complaint was filed, the burden of proof is upon the party denying the residence. These contentions seem to lack any forceful application here, and under all the attending facts and circumstances, we are impelled to the conclusion*1299 that in none of the years here under review was petitioner a resident of the State of Washington, and we so conclude and decide.
Judgment will be entered for the respondent.