Swent v. Commissioner

J. W. Swent and Ursula L. Swent, Husband and Wife v. Commissioner. Swent v. Commissioner Docket No. 1194. United States Tax Court 1943 Tax Ct. Memo LEXIS 9; 2 T.C.M. (CCH) 1186; T.C.M. (RIA) 43529; December 30, 1943 *9 Nathan Moran, Esq., for the petitioners. H. R. Horrow, Esq., for the respondent. ARUNDELL Memorandum Opinion ARUNDELL, Judge: The Commissioner has determined a deficiency in income tax of $3,788.46 for the taxable year 1938. The facts have all been agreed to by the parties and a single question of law is submitted for our decision. That question is whether or not petitioners are entitled to the exclusion from their gross income of the amount of $27,000 received by petitioner J. W. Swent as compensation for services rendered in the Republic of Mexico. The petitioner was out of the United States and in Mexico 216 days during the year 1938 and present in the United States 149 days. Petitioner's wife Ursula was in Mexico a total of 185 days during the year 1938 and in the United States 180 days. The specific periods are shown in the following tables: J. W. Swent No. of In Mexico Days Jan. 1 to Feb. 16 [47] Mar. 30 to June 15 [78] Aug. 18 to Sept. 7 [20] Oct. 22 to Dec. 31 [71] Days in Mexico [216] Ursula L. Swent No. of In Mexico Days Jan. 1 to Feb. 16 [47] Mar. 30 to June 15 [78] Nov. 2 to Dec. 31 [60] Days in Mexico [185] No. of In the United States Days Feb. 17 to March 29 [41] June 16 to Aug. 17 [64] Sept. 8 to Oct. 21 [44] Days in the United States [149] No. of In the United States Days Feb. 17 to March 29 [41] June 16 to Nov. 1 [139] Days in the United States [180] *10 The Commissioner stands upon the proposition that the exclusion provision of section 116(a) is applicable only when the six months' period of nonresident is made up of six calendar months. This proposition was fully considered in Michel J. A. Bertin, 1 T.C. 355, and rejected. For the reasons set forth in the Bertin case the determination of the Commissioner is reversed. Decision will be entered under Rule 50.