1948 U.S. Tax Ct. LEXIS 110">*110 Decision will be entered for petitioners.
Held, under the facts, that petitioner Rolf Jamvold, a citizen of Norway and an officer in the Norwegian Merchant Marine during the late war, was not a resident of the United States during 1943, under the Internal Revenue Code, although physically present in the United States during a part of that year and married to an American citizen.
11 T.C. 122">*122 Respondent determined a deficiency in the income tax and victory tax of petitioners for the year 1943 in the sum of $ 286.35. This deficiency resulted from respondent's determination that petitioner Rolf Jamvold was a resident alien during a considerable part of the taxable year and was therefore taxable upon his entire income, including 1948 U.S. Tax Ct. LEXIS 110">*111 that received from sources without the United States. It is petitioners' contention that petitioner Rolf Jamvold was a nonresident alien during the taxable year and, therefore, only that part of his income is subject to tax which was from sources within the United States.
FINDINGS OF FACT.
Petitioners, who are husband and wife, live in San Francisco, and filed their tax return for the year 1943 with the collector of internal revenue for the first district of California. Rolf is a merchant marine officer by profession, and during the taxable year he was a Norwegian citizen. Ruth was born in this country. Rolf was born in Cardiff, Wales, in 1911. His parents were Norwegians, and in 1924 they moved to Norway, with their children. Rolf was educated in Norway, and 11 T.C. 122">*123 lived and worked there until 1941. In 1940 he was attending a navigation school in Oslo.
Before World War II, while serving on Norwegian merchant ships, Rolf visited this country and was favorably impressed by the high standard of living and the many opportunities of advancement. He had read of these things in high school and had at that time a desire to come to America and to be an American.
When the Germans1948 U.S. Tax Ct. LEXIS 110">*112 invaded Norway, Rolf was conscripted to serve in the Norwegian Army, and he served until open resistance collapsed. Thereafter he served in the Norwegian underground until, upon the advice and with the assistance of its leaders, he escaped to England.
There he subjected himself to the authority of the Norwegian Government in exile, which ordered him into its merchant marine service in lieu of military service.
In November of 1942 Rolf was assigned to the Norwegian ship TAI Shan; he exercised no choice in this assignment. The ship's destination, which was New York, was unknown to Rolf until he was at sea and the sealed orders of the convoy were opened.
On arrival in New York he was ordered by the Norwegian consul in that city to go to San Francisco for assignment to another vessel, as second mate. While aboard his new ship, in the South Pacific, Rolf suffered a broken leg. He returned with the ship to San Francisco and there signed off, about March 5, 1943, and was given sick leave by the Norwegian consul in that city.
During that period he roomed and boarded at the house occupied by his future wife, the petitioner Ruth. He was under the authority of the Norwegian Government1948 U.S. Tax Ct. LEXIS 110">*113 representatives and was not authorized to accept employment in the United States or to sail on other than Norwegian vessels.
At the end of his convalescence, nevertheless, having been informed at the Norwegian Consulate that no berth would be available to him in the forseeable future, Rolf made application for a berth on an American ship, because he did not wish to be idle. He told the recruiting officer of the War Shipping Administration that he was a Norwegian and had no authority to sail on an American ship. At that time there was a convention among the Allied Governments not to hire the seamen of other nationalities, in order to prevent and discourage jumping ship. Rolf and the recruiting officer did not discuss whether he was a resident.
On the next day, April 16, 1943, the day on which the respondent contends that Rolf became a resident alien, he was called by the War Shipping Administration and agreed to take a job, for one voyage only, as second mate on the American tanker Gulf Star, which sailed that day for the South Pacific. He did not inform the Norwegian Consulate 11 T.C. 122">*124 of this action, and he knew that he was violating the orders of the Norwegian Government.
1948 U.S. Tax Ct. LEXIS 110">*114 He did not discuss with the officials of the Gulf Oil Corporation, which owned the ship, the matter of residence; all they knew was that he was an alien. They assumed that he was a resident alien and accordingly withheld $ 76.12 of his total earnings of $ 1,708.80 for the one trip, which ended August 2, 1943, at San Pedro, California.
He proceeded to San Francisco and reported to the Norwegian consul, who reprimanded him severely for sailing on a foreign vessel. He was given to understand that, except for his good record, he would have immediately been inducted into the Norwegian armed forces. Thereafter he did not disobey orders.
On August 17, 1943, petitioners Rolf and Ruth were married. Petitioners had no understanding, prior to marriage or thereafter during 1943, as to their residence, then, after the war, or at any time in the future. They sometimes thought and talked about returning to Norway after the war, but Rolf preferred to remain in America if he could get suitable employment. Ruth would have been willing to live in Norway if Rolf had decided to return. Rolf lived at his wife's house until the last days of 1943, when he again went to sea. During 1943 Rolf had no1948 U.S. Tax Ct. LEXIS 110">*115 fixed, definite intent to become a resident of the United States.
Rolf, though unemployed during a large part of 1943, was paid 80 per cent of his base pay by the Norwegian Consulate. On such income he paid, without objection, an income tax to the Norwegian Government.
In October 1943 petitioner Ruth filed with the Commissioner of Immigration and Naturalization, Washington, D. C., a "Petition for Issuance of Immigration Visa" to her husband, which petition, if obtained, would have enabled Rolf to take steps toward becoming a citizen of this country. The form is to be executed only by a citizen; Rolf did not join in the petition. He did not urge that it be sent, being convinced that it was a useless effort, because of the war, but he furnished the necessary information and admitted that he would have been pleased if it had been granted. The petition was denied.
Petitioner Ruth Jamvold was not aware when she filed the petition that if it had been granted her husband would have been in trouble with the Norwegian authorities again, but Rolf knew it.
On December 28, 1943, Rolf was assigned by the Norwegian Consulate to the Norwegian tanker William Strachan, which sailed that day1948 U.S. Tax Ct. LEXIS 110">*116 in foreign trade. He was thereafter continuously employed on Norwegian vessels in foreign trade until June 29, 1945, and was absent from the United States during all of that time except for two days in March 1944, at San Pedro, California.
11 T.C. 122">*125 On December 7, 1946, Rolf was admitted to the United States under an immigration visa. He has since filed a declaration of intent to become a citizen of the United States. Prior to being thus admitted, Rolf was permitted to go ashore in the United States only under a thirty-day permit issued by the immigration authorities of this country, regularly renewed by them when about to expire and when necessary, at the request of Rolf or of the Norwegian authorities. He held a passport which had been issued to him by the Norwegian Government before the war, permitting such visits.
At all times during 1943 Norway was at war with Germany, and Rolf, a citizen of Norway, remained subject to the jurisdiction, authority, and orders of the Norwegian Government in exile. He was subject to service in the Norwegian Army or Navy. He was not free to remain in the United States except as permitted to do so by the Norwegian Government.
In 1943 Rolf had1948 U.S. Tax Ct. LEXIS 110">*117 a desire to become, at some indefinite time in the future, a resident and citizen of the United States. In that year, however, he was a nonresident alien.
OPINION.
The question presented in this proceeding is whether petitioner Rolf Jamvold was in the year 1943 a nonresident alien within the meaning of section 212 (a) of the Internal Revenue Code.
The vexed question of residence or nonresidence, which is a mixed question of fact and law, has been before us in a number of recent cases. The decisions in such cases, depending largely upon the intent of a particular individual against the background of facts peculiar to him, must necessarily turn upon the facts disclosed by the record in each case.
In our opinion the case which presents facts more analogous to those of the instant proceeding is that of Ralph Love, 8 T.C. 400. The question in that case was the converse of the one now before us. There the question was whether the taxpayer, an American citizen, was a resident of Ireland during the taxable year, or, as the Commissioner contended, was a resident of the United States. The taxpayer, like petitioner Rolf here, had left his own country to engage1948 U.S. Tax Ct. LEXIS 110">*118 in war work which entailed his presence for a somewhat indefinite time in a foreign country. While there he fell in love with an Irish girl, to whom he became engaged. He was subject to military service in this country, but he formed the somewhat vague intent of residing in Ireland in the future after the war. We held in that case that the taxpayer was not a resident of Ireland, but was a resident of the United States.
The instant case presents one fact which is a stronger point for the 11 T.C. 122">*126 Commissioner than the comparable fact in the Love case, and one fact which is stronger for the petitioners. Here petitioner Rolf married the girl during the taxable year and lived during a part of the year in her home in America. On the other hand, he was actually in the service of his country and under orders from the Norwegian Government.
In both cases the crucial fact is that during 1943, when the fate of Western Civilization hung in the balance, young men who were citizens of the United Nations and found themselves scattered throughout the world in carrying on the war activities of their respective countries, either in the armed services or in work accepted as a temporary substitute1948 U.S. Tax Ct. LEXIS 110">*119 for such services, could not, by reason of circumstances, if not of law, form that degree of permanent attachment to the foreign country in which they were stationed which would cause a transfer of their residence from the country which they served to the country in which they served.
In Audio Gray Harvey, 10 T.C. 183, the taxpayer before the war was engaged in scientific activities in foreign countries as an employee of an American corporation. He had not had a residence for some years in the United States, but had lived "where he hung his hat." During the taxable year he was carrying on his usual work in Colombia under a three-year contract with his employer. While his work enabled him to gain an occupational deferment from the draft, there was no direct connection between his work and the war effort in that his work was not created by the war effort. The factual distinction between that case and the instant proceeding is obvious.
It is true that in the Harvey case we held that the fact that the taxpayer was subject to military service did not in and of itself and as a matter of law preclude a decision that his residence was in a foreign country. 1948 U.S. Tax Ct. LEXIS 110">*120 However, when that case and the Love case are read together, it is apparent that that fact is at least a strong factor militating against a conclusion that the taxpayer has established a residence in a foreign country. In any event, petitioner Rolf was not simply subject to possible military service; he was and had been engaged in serving his country under its direct orders in a war activity vital not only to Norway, but also to the United Nations.
In John Henry Chapman, 9 T.C. 619, the alien taxpayer was held to be a resident. In that case, however, we pointed out that at the time of his entry into this country it was contemplated that his stay would be extensive, that his stay was not limited to a definite period by the immigration laws, and that in fact he had lived in this country for over five years. It is significant that in that case the Love case was cited with approval. It should also be pointed out that the alien in the Chapman case was not a young man engaged in the war effort of his country and acting under its orders, but was engaged in 11 T.C. 122">*127 his usual peacetime vocation, a situation analogous to that present in the1948 U.S. Tax Ct. LEXIS 110">*121 Harvey case.
Regulations 111, section 29.211-2, provides that "An alien whose stay in the United States is limited to a definite period by the immigration laws is not a resident of the United States within the meaning of this section, in the absence of exceptional circumstances." Rolf's stay in the United States was limited to a definite period by the immigration laws, and the exceptional circumstances present in this case are more persuasive of his nonresidence than of his residence.
A recent case involving the construction of Regulations 111, section 29.211-2, is Florence Constantinescu, 11 T.C. 36. In that case the stay of the alien taxpayer in the United States was "limited to a definite period by the immigration laws." During the taxable year she was under orders to depart from the United States at a time which was periodically extended, and during that time she occupied an apartment which she had rented for a term of fifteen months and renewed for twelve months. She stayed in this country from 1940 to 1945. We held under the facts that the taxpayer was a nonresident alien. The instant case is comparable. Here Rolf was not under orders 1948 U.S. Tax Ct. LEXIS 110">*122 from the United States, but was under orders from Norway. In both cases the nature of the orders indicated the temporary character of the taxpayer's presence in this country. In the Constantinescu case the alien could stay in this country only so long as the American Government permitted; in the instant case Rolf could stay in this country only at such times and for such periods as the Norwegian Government permitted.
We conclude that petitioner Rolf was, during the taxable year, a nonresident alien within the meaning of section 212 (a) of the Internal Revenue Code.
Decision will be entered for petitioners.