Page 119 - Law of Peace, Volume ,

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6-8. Obligations of Nationality or Allegiance. It is not income tax. Whether he is a transient is determined by his intentions
uncommon for a state to apply its laws to acts performed with regard to the length and nature of his stay. A mere floating inten-
by its nationals beyond the territorial limits of the state. As tion, indefmite as to time, to return to another country is not sufficient
to constitute him a transient. If he lives in the United States and has no
stated by Mr. Chief Justice Hughes in Blackmer v. United
defdte intention as to his stay, he is a resident. One who comes to the
States. 47 United States for a defmite purpose which in its nature may be promptly
While it appears that the petitioner removed his residence to France accomplishedis a transient; but, if his purpose is of such a nature that an
in the year 1924, it is undisputed that he was, and continued to be, a extended stay may be necessary for its accomplishment, and to that end
citizen of the United States. He continued to owe allegiance to the the alien makes hihome temporarily in the United States, he becomes
United States. By virtue of the obligations of citizenship, the United a resident, though it may be his intention at all times to return to his
States retained its authority over him, and he was bound by its laws domicile abroad when the purpose for which he came has been consum-
made applicable to him in a foreign country. Thus although resident mated or abandoned. An alien whose stay in the United States is limited
abroad, the petitioner remained subject to the taxing power of the to a defdte period by the immigration laws is not a resident of the
United States. For disobedience to its laws through conduct abroad he United States within the meaning of this section, in the absence of ex-
was subject to punishment in the courts of the United States. With ceptional circumstances. 49
respect to such an exercise of authority, there is no question of interna- b. Consider the following more general definition of
tional law, but solely of the purport of the municipal law which estab-
lishes the duties of the citizen in relation to his own government. * "residence":
It appears that most governments consider that an alien who remains
6-9. Taxation. a. Should the reach of a state's laws based in its territory for a certain period of time, six months or more, is resi-
upon the relationship of the individual with the state be dent in such territory for purposes of income taxation. so
confied to those who have the state's nationality? The
question is posed below in comection with laws relating to If, then, nationality is not a necessary prerequisite to tax-
ability, is there some minimum personal comection that
taxation and compulsory military service. must exist before a state can lawfully prescribe a tax based
(1) International law has recognized a number of on events that occur outside the state? "On the one hand
bases for the imposition of taxes. Here as elsewhere it is it is agreed that a state cannot tax a transient on the whole
essential to distinguish between a state's jurisdiction to of his year's income as if he were a resident, but on the
prescribe a rule imposing a tax and its jurisdiction to en- other it is equally agreed that his presence may render him
force such a rule. The practical dficulties of enforcing subject to poll tax, and sojourn tax, which, indeed, could
taxes upon persons not physically within its territory and be of an equivalent amount." 51 Thus, it can only be said
not owning property within its territory realistically limit that no specific international norms control taxation. The
the tax collecting state. International controversy as to ju- liability of individuals to taxes in both their states of na-
risdiction to tax has been relatively infrequent. Conse- tionality and others depends largely upon the tax laws of
quently, the only evidence of the international law on the the countries concerned.
subject is state practice.
6-10. Compulsory Military Service. a. U.S. legislation
(2) The territorial base supports state taxation on the draft'i of aliens. During World War I, citizens and
measured by property located and income produced with- "male persons not alien enemies who have declared their
in the state. States impose such taxes on the individuals intention to become citizens" were subject to the draft. 52
owning such property, or producing or claiming such in- The Selective Training and Service Act of 1940 53 con-
come, even though the individuals do not have a personal tained simiiar provisions until amended in 1941. 54 This
relationship with the taxing state such as that of na- World War I1 amendment made liable for training and
tionality. At the other extreme, states impose taxes upon service every male citizen and every other male person
their own nationals, even though the nationals are "residing in the United States," with the proviso that a
physically located outside the state and their property is lo- citizen or subject of a neutral country could apply for and
cated and income produced outside the state. Will interna- be granted relief, "but any person who makes such ap-
tional law permit taxation measured by property located plication shall thereafter be debarred from becoming a
outside the state or income produced outside the state citizen of the United States." The Selective Service Act of
when the individual to be taxed is not its national? The 1948 55 broadened the category of resident aliens able to
United States, for example, imposes income tax upon apply for relief to include "any citizen of a foreign coun-
aliens who are resident within the United States. "Resi- try," retaining the provision for debarring such an appli-
dent aliens are, in general, taxable the same as citizens of cant from citizenship. The dramatic change in policy in the
the United States; that is, a resident alien is taxable on in-
come derived from all sources, including sources without 49. 26 C.F.R. Part I, $ 1.871-2(b).
the United States," 48 Residence is defined in the regula- 50. Letter from Assistant Secretary of State Macomber to U.S.
tions as follows: Senator Carl Hayden, quoted in 8 M. Whiteman, Digest of International
Law 536 (1967).
An alien actually present in the United States who is not a mere tran- 51. 2 D. O'ConneU, International Law 717 (2d ed 1970).
sient or sojourner is a resident of the United States for purposes of the 52. Act of May 18, 1917, chapter 15, 5 2, 40 Stat. 76.
53. 54 Stat. 885, chapter 720, 5 3(a).
47. 284 U.S. 421, 436; 52 S.Ct. 252, 254 (1932).
54. 55 Stat. 844, chapter 602, 8 2.
4s. 26 C.F.R. Part I, 5 1,871-1.
55. 62 Stat. 604, chapter 625, 5 4(a).