
USCA1 Opinion

	




          July 7, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No.  91-2282                                JOHN H. WHITEHOUSE AND                                 CAROL A. WHITEHOUSE,                               Petitioners, Appellants,                                          v.                          COMMISSIONER OF INTERNAL REVENUE,                                Respondent, Appellee.                                 ____________________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  April 29,  1992, is          amended as follows:               On page 5,  Line  4  delete "at 7" and insert "3,7 (1st Cir.          1986)".                                   April 29, 1992                                 ___________________          No. 91-2282                                            JOHN H. WHITEHOUSE AND                                 CAROL A. WHITEHOUSE,                               Petitioners, Appellants,                                          v.                          COMMISSIONER OF INTERNAL REVENUE,                                Respondent, Appellee.                                  __________________                       APPEAL FROM THE UNITED STATES TAX COURT                    [Hon. Herbert L. Chabot, U.S. Tax Court Judge]                                             ____________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ___________________               Izen  & Associates,  P.C.  and   Joe  Alfred Izen,  Jr.,  on               ________________________         _____________________          appellant's Response to Motion to Transfer.               James A. Bruton, Acting  Assistant Attorney General, Gary R.               _______________                                      _______          Allen,  Gilbert S. Rothenberg and  Doris D. Coles, Attorneys, Tax          _____   _____________________      ______________          Division,  Department of  Justice,  on Memorandum  in Support  of          Motion to Transfer.                                   __________________                                 __________________                  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.                 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            ______     __________________________________                                         -3-            (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  diversity-jurisdiction 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, 433 N.E.2d 907  (Mass.App. 1982) ("it may generally            ________            be  said that  one resides  in the  jurisdiction in  which he            sleeps"); Abington v. North Bridgewater, 23 Pick. (Mass.) 170                      ________    _________________                                         -4-            (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.                 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                                         -5-            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.            _____________________________________________________                                         -6-
