Cooper's Adm'r v. Commonwealth | Cases | Westlaw

*340 The question in this case is whether or not the intangible property of the estate of Thomas H. Cooper, deceased, is liable to taxation by the commonwealth of Virginia, the county of Roanoke, school district No. 5 of Roanoke county, and the town of Salem, and depends upon whether his domicile for several years before his death was at Salem, Roanoke county, Va., or at Cooper's, Mercer county, W. Va. The assessments having been made in 1915 for the years 1908 to 1915, inclusive, C. L. Hatcher, sheriff of Roanoke county and as such administrator of the decedent, alleging that such assessments are erroneous, applied under sections 567 and 571 of the Code for their correction and cancellation.

By consent and for convenience the motions were heard together and a single judgment entered. The trial court, being of the opinion that Cooper was, within the meaning of the tax laws, a resident of Virginia from 1905 until his death, held the appellant liable for all the taxes assessed in favor of the commonwealth, and pursuant to the statute *341 (Acts 1916, p. 827, construed in Commonwealth v. United Cigarette Machine Co., 92 S. E. 901) relieved him from all local taxes prior to the year 1912, but held him liable for such local taxes for the years 1912 to 1915, inclusive.

The facts are that Thomas H. Cooper, who had been domiciled in West Virginia since his childhood, in 1904 brought his wife and children to the town of Salem. He there bought 12 acres of land and erected a valuable dwelling thereon, the cost of which was variously estimated, but which was assessed for taxation in 1915 at $32,000, and its market value is estimated to be between $50,000 and $60,000. He with his family occupied this dwelling from its completion until March, 1911, when he died. When he first went to Salem, and on every other occasion when the matter was referred to, he averred that his residence there was only temporary; that he came for the purpose of educating his children; and that he proposed to retain his domicile and citizenship in the state of West Virginia and to return to his home there when his purpose was accomplished. During all of this period he paid his poll tax annually in West Virginia, and voted regularly at Cooper's in that state. At the time he came to Virginia and to the end of 1909, as certified in the bill of exceptions, he was postmaster at Coaldale, a mining village two or three miles from Cooper's, and he was his father's administrator in West Virginia. He was the general manager of the McDowell Coal & Coke Company and of the Coaldale Coal & Coke Company, and president of the **681 Mill Creek Coal & Coke Company. He was a director of the Bank of Bramwell, W. Va., and of the Fidelity Bank & Trust Company of Bluefield, W. Va., all of which positions he held up to the date of his death. As an officer of the coal companies above mentioned, he actively managed their business, which was large, received a salary therefor, and his habit was to go to West Virginia *342 and remain two or three days, every ten days or two weeks, for the purpose of attending to his business there. He reserved a room, which he called his own, in a house on the property of one of these companies at Cooper's, which was occupied by his mother. A very large part of his estate was invested in the stock of these coal mining companies. When he first came to Virginia the commissioner of the revenue at Salem proposed to assess him for capitation tax, and demanded that he list his intangible property for taxation, for he was known to be well to do, but he denied his liability therefor, claiming that he was not domiciled in the state of Virginia, did not propose to change his domicile from West Virginia, and stated that he was postmaster at Coaldale and required by the federal government to maintain a residence there, and therefore he only listed his tangible personal property in Salem for taxation. Each year thereafter, when the tax interrogatories were presented to him, he erased all those portions thereof which would indicate that he was domiciled in Virginia, and always refused to list or pay any capitation or intangible property tax in Virginia, but he annually listed and paid taxes on his household furniture and other tangible property in Salem. Shortly after his death, his widow, on March 29, 1911, by a writing filed in the county clerk's office of Mercer county, W. Va., waived her right to qualify there as administratrix of her husband's estate, requested that his brother, Edward Cooper, be appointed his administrator, and upon her motion he was appointed. Edward Cooper took immediate charge of all of his estate, some of the securities being in a safe deposit vault in Salem, and some in a West Virginia bank, and has proceeded to administer his estate under that appointment. Four years thereafter, in 1915, by an order of the circuit court of Roanoke county, Va., Cooper's estate was committed to C. L. Hatcher, sheriff of Roanoke county, the appellant *343 here, and thereafter in 1915 the assessments complained of, $180,000 of intangible property and $25,000 income, for the years 1908 to 1915, inclusive, were made. The Virginia administrator testified that no property has come into his hands as such administrator, and that he knows of none within the state of Virginia which will come into his possession to be administered.

To justify the assessments these facts are relied on: That the decedent, Cooper, was a student at Roanoke College, Salem, Va., and married a resident of that town. Of the marriage six children were born, five while they were in West Virginia, and one after their return to Salem. He did not own any residence in West Virginia, but while there occupied one owned by one of the coal companies with which he was connected. When he came to Salem, he brought his household furniture with him. While there he became a stockholder in the Farmers' National Bank of Salem, a stockholder and officer in the Colonial Bank of Roanoke, a stockholder, director, and president of the Catawba Valley Railway & Mining Company, extending about six miles from Salem, stockholder and official of the Cooper Silica & Glass Company, Incorporated, and of the Consumers' Fuel Company, Incorporated, the last four being Virginia corporations. While in Salem he signed three certificates for the purpose of procuring three separate charters in the state of Virginia, in each of which his place of residence was stated to be Salem, Va. In 1909 he procured two life insurance policies, and in each of his applications therefor answered questions stating that Salem, Va., was his residence and business address. Upon applications to the secretary of the commonwealth of Virginia for his automobile licenses in 1907 and 1910 his residence and post office address were said to be Salem, Va. He became president of the Board of Trade of Salem. He transferred his church membership to the Methodist Episcopal Church, South, at Salem, was on the *344 board of stewards of this congregation, and was the chief contributor of the necessary money for its new church building, His children went to the public schools of Salem without the payment of fees, which are required of nonresidents, though there is no suggestion that he ever refused to pay such fees, or that he was ever asked to do so. When not on social or business trips to West Virginia or elsewhere, he spent his time in Salem. He purchased two burial lots in East Hill Cemetery, Salem, and removed the bodies of two of his dead children and interred them in those lots.

The distinctions between domicile and residence have been frequently defined, but the difficulties of applying these distinctions to the facts of particular cases are very great indeed.

No better statement of the law and of these difficulties has been made than that of Chief Justice Shaw, in the case of Thorndike v. Boston, 1 Metc. (Mass.) 245, which is quoted with approval by Judge Cooley (Cooley on Taxation, 641):

*346 In Bruner v. Bunting, 15 Va. Law Reg. 516, Kelly, Judge, in a contested election case, summarizes the authorities thus:

In 9 R. C. L. 538, this is stated:

The most recent and comprehensive collection and review of the authorities is found in a note to The King v. Board of Assessors (41 New Bruns. 564) Ann. Cas. 1917B, 727.

The debatable question here, then, is one of fact, to be determined from the evidence.

If the facts relied upon by the appellees stood alone, they would be unquestionably sufficient to justify the inference that Cooper was domiciled at Salem, Va., and hence that his estate is liable to taxation there upon his intangible property, while, on the other hand, if there were no other facts than those relied upon by the appellant to show that Cooper never relinquished his domicile at Cooper's, W. Va., *349 they would be sufficient to justify the conclusion that Cooper had not changed that domicile, and hence that his estate is not so liable.

It is imperative that these established distinctions between domicile and residence be maintained so that the political and property rights of individuals may be preserved, and that the right of each community to levy taxes upon the intangible property of its domiciled citizens may be unquestioned.

The residence of the President is in the White House at Washington, while the domicile of the incumbent is in New Jersey; the residence of ambassadors during their terms must be at the capitals of the foreign countries to which they are accredited, while their domiciles remain in the territory of their own governments; many other public officials, voluntarily or because required by law to do so, change their residences during their terms, but retain their original domiciles, in which they continue to exercise their political rights during their terms and to which they return at the expiration thereof; and many other persons, either for pleasure, health, or business reasons, have and maintain several residences while they retain and can retain but one domicile. As to all of these classes of persons––and those included therein are numerous––their domiciles determine their right to vote as well as the situs for taxation of their intangible property.

While the failure of the local authorities in Virginia to contest the issue made by Cooper as to his legal domicile during his lifetime does not preclude the commonwealth and the other appellees from now asserting their claims, at the same time the fact that the issue then tendered by him was not contested in his lifetime is a circumstance which should be considered in weighing the testimony and in determining the bona fide character of his acts and declarations. It is also worthy of comment that his view of the question was not contested until four years after his death. If he were living he would certainly be the most material witness to sustain his contention, and much would depend upon the character of his testimony and his explanations of, or failure to explain, his apparent inconsistencies.

From a careful consideration of the evidence, we have reached the conclusion that the circuit court erred in deciding that Cooper's intangible property is liable to taxation in Virginia, and the determination of this question makes it unnecessary to consider several other interesting questions which the record discloses.

The judgment will be reversed, the appellant exonerated from the payment of the taxes erroneously assessed against him, and the case remanded to the circuit court of Roanoke county, with directions to enter such further orders, if any, as may be necessary, in accordance with the views herein expressed.

Judgment reversed.