
    Appeal Of ADOLPH ROSENBERG, Executor, Estate of HERMAN ROSENBERG, Deceased.
    Docket No. 2829.
    Submitted July 1, 1925.
    Decided September 30, 1925.
    
      A. N. Coleman, and O. H. B. Bloodworth, Esqs., for the taxpayer
    
      L. O. Mitchell, Esq., for the Commissioner.
    Before James, Littleton, Smith, and Trussell.
   Adolph Rosenberg, executor of the estate of Herman Rosenberg, appeals from a determination of a deficiency in estate tax of $769.17 upon the estate of Herman Rosenberg, who died April 16, 1923. The only question in issue is whether decedent at the date of his death was a nonresident alien.

FINDINGS OF FACT.

The decedent was born in Germany in 1849, came to this country in 1873, and was naturalized in 1878. From the date of his arrival in the United States up to 1900 decedent resided continuously in New York City, where he was engaged in business with two brothers under the firm name of S. Rosenberg & Co. He was also a member of various social clubs and charitable organizations in the City of New York and voted and paid taxes in that city. During this period he neither owned property nor conducted business in Germany.

From 1909 to 1914 the decedent, a member of the firm of S. Rosenberg & Co., New York City, traveled in Europe as the European representative of that firm, returning to this country every year for a period of about three months. During this period the decedent had no permanent home, but lived most of the time in hotels. From 1914 to the fall of 1919 the decedent was compelled to remain in Germany on account of the war, but he continued to act as the European representative of the firm of which he was a member. During the war period he did not come to the United States, but came to the United States soon after the war was over, in 1919, and remained in the United States for four or five months. On March 19, 1920, decedent made a will in New York City, the preamble of which reads as follows:

I, Herman Rosenberg, of the City, County and State of New York, United States of America, do make, declare and publish this to be my last will and testament, hereby revoking all wills and codicils heretofore made by me.

Shortly after making this will he sailed for Europe, expecting to return to New York the following year. Because of ill health he was unable to return to New York, although correspondence with his brothers, showed that he intended to do so. For the calendar year 1922 his brother prepared for the decedent, and at his request, a Federal income-tax return and a New York State income-tax return, both on resident forms in which his residence address was given as in the care of his brother, Adolph Rosenberg, New York City. On January 11, 1923, he executed a last will and testament in the City of Frankfurt, Germany. The opening paragraph of the will reads:

I, the undersigned, Herman Rosenberg, of New York, temporarily residing at Frankfurt, on the Main, publish and declare the following as my testament.

On December 26, 1923, letters of administration c. t. a. were granted to Adolph Rosenberg upon the estate of the decedent in the City, County, and State of New York. The records of administration read in part :

Whereas, the said deceased was at the time of his death a resident of the County of New York, * * *

The decedent was a citizen, and resident of the United States at the date of his death, April 16, 1928.

DECISION.

The deficiency, if any, should be computed in accordance with the foregoing findings of fact. Final determination will be settled on consent or on 10 days’ notice, in accordance with Rule 50.

Arundell not participating.  