*696 Under the facts in this proceeding, the decedent is held to have been a resident of the United States at the date of death.
*534 The Commissioner has given notice of a deficiency in estate tax in the amount of $3,326.09 and the petitioner has filed a petition with the Board for redetermination of the deficiency. The deficiency results from the determination by the Commissioner that the decedent was a nonresident of the United States at the time of her death and that consequently the petitioner was not entitled to the specific exemption of $100,000 allowed by section 303(a)(4), Revenue Act of 1926, or to additional authorized deductions for administration expenses, commissions, and fees.
FINDINGS OF FACT.
The petitioner is the duly qualified executor of the estate of Miriam Fisher, deceased. Miriam Fisher, hereinafter referred to as the decedent, was born in New York City April 22, 1870, and died, testate, in Paris, France, on March 21, 1932. The decedent's last will and testament consisted of a will dated March 20, 1931, a first codicil*697 dated April 15, 1931, and a second codicil dated January 11, 1932. The decedent's last will and testament was admitted to probate in the Surrogate's Court, New York County, New York, as the will of a decedent resident in New York County valid to pass real and personal property. Letters testamentary were issued to the Fifth Avenue Bank of New York, the petitioner herein, on July 13, 1932.
The decedent was a citizen of the United States, as were her parents. Decedent was never married and had never engaged in any business. Prior to 1912 and after the death of her parents, who died *535 in New York City, decedent lived alone in her home, which she owned, at 9 West 58th St., New York City. She sold her home after 1915, in part out of necessity, because the Plaza Hotel, which is next door, had built around her property.
In 1912 decedent went abroad for travel, health, and to be near relatives. She intended to return to the United States in 1914 but the war made ocean travel too dangerous. She returned to New York City in November 1919 and went back to Paris in March 1920. She resided in Paris from 1920 until her death, except when traveling in Europe, as she did four*698 or five months each year. Decedent had diabetes and arteriosclerosis. She went to such places as Vichy, Aix-les-Bains, and Marienbad, regularly, for cures. After taking cures she took trips to Biarritz, Deauville, and Switzerland, and other places as "after cures." She lived in hotels or apartment hotels and in Paris she lived in hotels until 1920. After her return to Paris, she took an unfurnished apartment at 45 Rue Copernic and furnished it with goods purchased in Paris. She maintained this apartment until her death. The reason for setting up housekeeping was that her health had become worse and strict diet required prepared foods not obtainable in hotel living. Decedent had cousins in Paris and one, Alice Cochery, to whom she was devoted, had married a French subject and later divorced him. Decedent desired to be near this cousin during various times of marital difficulties. Decedent frequently stated to Alice Cochery that she intended to return home to America when her health improved and the cousin's difficulties were concluded.
Decedent regularly applied for and obtained renewals and extensions of passports and in applications stated the object of her desiring passports, *699 the purpose of residing abroad, and where her legal domicil and permanent residence was. She also made "Affidavits to Explain Protracted Foreign Residence and to Overcome Presumption of Expatriation." Such affidavits were made in August 1919, November 1922, and October 1924. The last extension of passport was granted for two years from November 8, 1930, to November 8, 1932. The object of residence abroad was stated to be temporary residence and travel, or temporary residence, in every application and affidavit. In every application for passport except on one occasion in 1916, she gave her legal residence, legal domicil, or permanent residence as New York City, the United States, or care of Fifth Avenue Bank, New York City, or, before 1919, specific residential addresses in New York City. Regarding intention to return to the United States, she stated in 1919 her intention to return within the year, which she did; and thereafter that she intended to return in two years (1920); two years (1922); "undetermined" or "indefinite" *536 (1924, 1926, 1928). In affidavits she swore that she maintained ties of family in the United States giving the names of an uncle and cousins; that*700 she paid American income tax through the Fifth Avenue Bank and never held herself out as a foreign citizen. She regularly swore her allegiance to the United States. The object of decedent's residence abroad was to be near relatives, for travel, and for health.
The decedent paid income taxes in the United States through the Fifth Avenue Bank. She paid the income tax in France as a person not domiciled but having a residence in France, which tax was computed, according to French Law, at seven times the annual rent paid, as she had no business in France. Decedent did not pay the French income tax levied on persons domiciled in France.
During the entire residence abroad, decedent kept in continuous communication with a New York law firm which had been counsel to her for over forty years. These New York counsel prepared her will and codicils in New York at various times and sent them to her for execution in Paris. She sought their advice constantly and she requested in her will that her executor employ them to look after matters pertaining to the administration of her estate. The decedent wrote on the envelope containing the duplicate copy of her will in Paris, among other*701 things, "Copy (unsigned) of last will and testament of Miriam Fisher of New York, temporarily residing at 45 Rue Copernic 16th, Paris. The original is with Duer, Strong and Whitehead, 43 Echange Place, New York City." Decedent, in her will, directed her executor to pay out of the estate all transfer, inheritance, succession, or death taxes which might be imposed by the United States.
Decedent named the Fifth Avenue Bank of New York as her executor and as trustee of the trusts created. Substantially all of decedent's estate was invested in securities of domestic corporations and bonds and mortgages on property in New York City. The investments were in the possession of the Fifth Avenue Bank at date of decedent's death and it had held and managed them for more than twelve years.
Decedent during her lifetime and by testamentary dispositions made contributions and bequests to charitable enterprises in the United States. Decedent made bequests to 21 cousins in the United States and to 14 cousins abroad. The decedent stated in her will that she desired to be buried beside the graves of her parents in Salem Fields Cemetery, Cypress Hills, New York, and prior to her death wrote*702 to her New York counsel that she desired to have her remains cremated in Paris but desired the ashes to be brought to the United States for burial in New York, which was done. Death *537 duties were paid in France solely upon the part of decedent's estate (personal effects - furnishings and automobile) which was situated in Paris and said duties were paid as of the estate of a person residing in France but domiciled elsewhere.
Hannah Einstein died testate, a resident of New York, in December 1929. The accounts of her executor to the New York County Surrogate's Court show that a certain claim of Miriam Fisher for money loaned to Hannah Einstein had been discharged. The obligation was assumed by the daughter of Hannah Einstein, Marion Loze, on February 2, 1930, at Paris, France. Marion Loze was domiciled in France.
The Fifth Avenue Bank of New York has expended the following amounts in the course of the administration of decedent's estate and these disbursements are in addition to those allowed by the Commissioner in fixing the deficiency involved in this proceeding:
| Miscellaneous expenses | $348.80 |
| Counsel fees | 2,411.20 |
| Costs of accounting | 31.20 |
| Special guardian's allowance | 525.00 |
| Claim of Fifth Avenue Bank | 26.95 |
| Commissions of executor | 5,248.16 |
| Total | 8,591.31 |
*703 OPINION.
HARRON: The Commissioner contends that decedent was a nonresident of the United States, at the date of death, for estate tax purposes and that the provisions of section 303(b), Revenue Act of 1926 are applicable in determining the net estate for tax purposes. The principal issue is whether decedent was a nonresident of the United States, with collateral issues relating to the taxable situs of a claim of the estate against one Marion Loze, a resident of France, and to whether all or a proportion of administration expenses and fees is deductible from the gross estate.
The terms residence and domicil are synonymous for estate tax purposes. Bowring v. Bowers, 24 Fed.(2d) 918; certiorari denied, 277 U.S. 608">277 U.S. 608; Guaranty Trust Co., Executor,25 B.T.A. 507">25 B.T.A. 507; Fredrick Rodiek,33 B.T.A. 1020">33 B.T.A. 1020. Respondent admits that decedent's domicil of origin was New York City, but argues that decedent had only a "floating" intention to return to New York City so that the prolonged residence of decedent in Paris, France, brought about a change of domicil to a prima facie domicil of choice in Paris. *704 Respondent argues that decedent's intention to return to her domicil of origin was a "floating intention" because in later applications for passports and affidavits, decedent used the words "undetermined" *538 and "indefinite" in answer to the question asking when she intended returning to the United States.
The decedent's domicil of origin was New York City. Two facts must exist to effect a change over to a new domicil of choice, both residence in the new place and intention to make the new residence a permanent home. There must be both the fact and the intent. Mitchell v. United States,88 U.S. 350">88 U.S. 350, 353.
This issue is a mixed question of fact and of law. In this proceeding we have the fact that decedent maintained and lived in an apartment in Paris for 12 years, but it is necessary to determine whether as a fact decedent had such intent toward her residence in Paris as to require the conclusion that Paris was her domicil of choice.
A domicil of origin is presumed to continue until it is shown to have been changed. Somerville v. Somerville, 5 Vesey, 787. A prolonged absence from domicil does not change domicil without intent*705 to acquire a new domicil, Williamson v. Osenton,232 U.S. 619">232 U.S. 619, and where residence away from the original domicil is for purposes of travel and health such presence does not usually change domicil. Also, knowledge that one will never return home because of illness does not necessarily change domicil. Treatise on the Conflict of Laws, Joseph H. Beale, pp. 142, 172, 173. In determining the question of fact of intent to effect a change of domicil there must be the intent that the new residence is to be a permanent residence, in other words, there is no intent to return to the original domicil for permanent residence; or, as stated in Ennis v. Smith, 14 Howard, 339, 442;
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 change the domicil. The result is, that the place of residence is prima facie the domicil, unless there be some motive for that residence not inconsistent with a clearly established intention to retain a permanent residence in another place.
Respondent*706 infers from decedent's prolonged residence abroad and the general circumstances that decedent intended her residence in Paris to be permanent and so acquired a domicil of choice there. We do not agree with respondent. Without reviewing in detail the facts already set forth in the findings, we believe there is substantial proof from decedent's own statements in applications for passports, affidavits, and to her cousin that she regarded Paris as a temporary residence and that the purpose of her long sojourn away from New York City was for travel, health, and to be near relatives for a limited period only. There is no substantial evidence that decedent intended making her home permanently near her cousin. From 1912 *539 to 1919 we think it clear that decedent's presence in Paris and elsewhere was intended as temporary and for the particular purposes of travel and to be near relatives. From 1920 to the date of death we are satisfied that decedent's presence in Paris still was for temporary residence and particular purposes not inconsistent with an intention to retain her domicil of origin. The fact that decedent had sold her New York home does not present an inconsistency. *707 She was unmarried, lived alone, and possessed the means and desire to travel, at least until her health broke. Cf. Noah C. Rogers, Executor,17 B.T.A. 570">17 B.T.A. 570; Guaranty Trust Co., Executor,25 B.T.A. 507">25 B.T.A. 507. That decedent in later years was vague as to the exact time she would return to New York is explained by decedent's failure in health.
On a review of the facts and in considering the general circumstances it is held that decedent retained her domicil of origin and was a resident of the United States at the date of death. It follows that the claim against Marion Loze had its taxable situs in the United States and was properly included in the gross estate of decedent situated in the United States; that the petitioners are entitled to deduct the full amount of the administration expenses and fees claimed in addition to others allowed, section 303(a)(1), Revenue Act of 1926; and that decedent's estate is entitled to the statutory exemption allowed a resident decedent under section 303(a)(4).
Decision will be entered for the petitioner.