Tax Court Appeal Venue Decision
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69 A.F.T.R.2d 92-1191, 92-1 USTC P 50,223
John H. WHITEHOUSE and Carol A. Whitehouse, Petitioners,
Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent,
Appellee.
No. 91-2282.
United States Court of Appeals,
First Circuit.
April 29, 1992.
Izen & Associates, P.C. and Joe Alfred Izen, Jr., for petitioners, appellants
on Response to Motion to Transfer.
James A. Bruton, Acting Asst. Atty. Gen., Gary R. Allen, Gilbert S.
Rothenberg and Doris D. Coles, Attorneys, Tax Div., Dept. of Justice, for
respondent, appellee on Memorandum in Support of Motion to Transfer.
Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.
PER CURIAM.
This appeal springs from a decision of the Tax Court. The government,
contending that venue properly lies in the Second Circuit, has moved to
transfer.
Venue over appeals from decisions of the Tax Court is governed by 26 U.S.C.
7482(b). In "the case of a petitioner ... other than a corporation," venue lies in
the circuit in which the petitioner's "legal residence" is located. 26 U.S.C.
7482(b)(1)(A). Thus, the essential question is: where do the Whitehouses
"reside?"
According to the petition that the Whitehouses filed in the Tax Court, their
legal residence is in West Suffield, Connecticut--which of course lies in the
Second Circuit. That would end the matter, except that, in opposing the
government's motion to transfer, the Whitehouses submitted an affidavit in
which Mrs. Whitehouse swore that although she and her husband "did reside at
an address in West Suffield, Connecticut, the boundary line between
Connecticut and Massachusetts ran through our front yard." The Whitehouses
argue that this means they "resided partly within the State of Connecticut and
partly within the State of Massachusetts," and, we take it, that venue was
therefore proper in the First Circuit as well as the Second Circuit.
4
We disagree. For purposes of determining venue under section 7482, the term
"legal residence" means "domicile." Brewin v. Commissioner of Internal
Revenue, 72 T.C. 1055 (1979), rev'd on other grounds, 639 F.2d 805
(D.C.Cir.1981). A person can have only one domicile at a time. General
Electric Co. v. Cugini, 640 F.Supp. 113, 115 (D.P.R.1986). See also Shafer v.
Children's Hospital Society, 265 F.2d 107, 120-21 (D.C.Cir.1959); Hardin v.
McAvoy, 216 F.2d 399, 403 (5th Cir.1954); Syme v. Rowton, 555 F.Supp. 33,
36 (D.Mont.1982). The Whitehouses' "legal residence" for venue purposes is
either in Massachusetts or in Connecticut; it cannot be in both states.
Although the one-domicile rule ordinarily finds expression in cases where the
person has two or more residences, it has also been applied to cases where the
person has one residence that lies in two jurisdictions. For example, in Blaine v.
Murphy, 265 F. 324, 325 (D.Mass.1920), the defendants in a diversityjurisdiction case lived at the State Line Hotel, on the border of Massachusetts
and New York. The court decided that for diversity purposes the defendants
were domiciled in Massachusetts because "[t]he place where a person
habitually eats, sleeps and makes his home is his domicile," and "the part of the
hotel in which the defendants habitually eat and sleep is in Massachusetts." Id.
See also Teel v. Hamilton-Wenham Regional School District, 13 Mass.App.
345, 433 N.E.2d 907 (1982) ("it may generally be said that one resides in the
jurisdiction in which he sleeps"); Abington v. North Bridgewater, 23 Pick. (40
Mass.) 170 (1840) ("if a man has a dwellinghouse, situated partly within one
jurisdiction and partly in another ... he shall be deemed an inhabitant within that
jurisdiction, within the limits of which he usually sleeps"). See generally 28
C.J.S., Domicile 14.
Applying this "follow the pillow" principle to the record here, we conclude that
the Whitehouses are domiciled in Connecticut. Before we received Mrs.
Whitehouse's affidavit, there was nothing in the record that would even
remotely suggest that the Whitehouses made their home or any part of it in
Massachusetts. Rather, the allegation in the Tax Court petition that the
Whitehouses are "citizens" of Connecticut, and the fact that the house has a
Connecticut address, create a strong inference to the contrary in the mind of the
reader.
7
Mrs. Whitehouse's affidavit is ambiguous at best. It says that the
Massachusetts-Connecticut border runs through the front yard. This pretty
clearly tells us that the house is entirely in one state--but it does not tell us
which state. We conclude, therefore, (1) that the affidavit is insufficient to
negate the strong inference of Connecticut residence that the Whitehouses' own
previous submissions have raised, (2) that the Whitehouses are domiciled and
have "legal residence" in Connecticut, and (3) that the appropriate action is to
transfer their appeal to the Second Circuit. See 28 U.S.C. 1631 (authorizing
federal courts to transfer actions and appeals to court in which action or appeal
could have been brought); Dornbusch v. Commissioner of Internal Revenue,
860 F.2d 611 (5th Cir.1988) (appeals court has both inherent and statutory
authority to transfer Tax Court appeals to proper venue); Clark & Reid Co. v.
United States, 804 F.2d 3, 7 (1st Cir.1986) (court of appeals has "inherent
discretionary power" to transfer proceeding to another circuit).
It is ordered that this appeal be transferred to the United States Court of
Appeals for the Second Circuit.
