country and deport them. Chae Chang Ping v. U. S., 130 U. S. 581; U. S. ex rel. Turner v. Williams, 194 U. S. 279; Fong Yue Ting v. U. S. 149 U. S. 968. The United States government may prescribe terms under which aliens may do business here or prevent them from doing business here altogether. The New York State income tax law, in computing the amount of net income of a non-resident, does not permit the deduction of all losses, although the non-resident may have sustained losses in other states to such an extent as to reduce his entire income from all his property so that were he a resident of the State of New York he would not be required to pay any income tax at all. On the other hand, losses of a non-resident may be presumed to be deducted at his domicile. People v. Barker, 141 N. Y. 586. The next point of inquiry is what is meant by sources within the state, and whether in taxing the income from salaries, occupations and professions of a non-resident we are taxing income from sources within the state. It has been held in State v. Wisconsin Tax Commission, 161 Wisc. 111, that in the Wisconsin Act of 1911, imposing a tax on such part of the non-resident's income derived from sources within the state or within its jurisdiction, that the expression "derived from sources within the state" and the expression "or within its jurisdiction" are considered identical. In so far as a non-resident is taxed on income from property within the state, or on the earnings from a business representing capital employed within the state, the question is no greater than taxing the property itself. In both of these cases the tax is derived from tangible property permanently located in the state or from money or capital invested in business, capable of being permanently located or having a situs in the state. The moot point in the New York income tax law is the situs of the income derived from the non-resident's salary or earnings from professions or occupations carried on in the state. Can these be said to be from sources within the state? In taxing foreign corporations this difficulty of situs is more apparent than real. A foreign corporation doing business within the state has a situs here and must obtain a certificate permitting it to do business in the state. New York State recognizes the apportionment of an income in such cases under a rule permitting a segregation of the tangible property, and accounts accruing from business within and without the state. In the case of inheritance taxes, the right as well as the property is within the state. Blackstone v. Miller, 188 U. S. 189. The right of the federal government to tax non-resident aliens on income is not entirely analogous and it has never been absolutely settled according to some legal writers (see Black on Income Tax) that the United States has this power over the income of nonresident aliens. In connection with earnings from salaries, occupations and professions, we not only encounter the question raised by the due process of law section of the federal constittion, but also the limitation on the taxing power of the state in connection with interstate commerce. The federal courts have repeatedly held that an agent delivering goods, or a drummer or commercial traveller making sales in the state, cannot be taxed as such. May not the contract for personal services of a non-resident in his occupation be considered in the sense of a sale of a commodity, and is not the state's exaction of the tax an interference with commerce? A lawyer may write his brief in New Jersey and render his bill from his New York office. An architect or designer may formulate his plans or complete his designs at his home in Connecticut, and may be entitled to his fees or salary at his New York office. Professional advice may be given over the telephone in New Jersey and bills rendered at the New York office. The Comptroller of the State of New York has already recognized the necessity of apportioning the income derived by a nonresident from employment in the state, by promulgating regulations in explanation of the new law under which a non-resident salesman, drummer or other employee may apportion his earnings on the basis of business transacted and time employed in the state. (See Regulations, infra.) The question of interstate commerce as applied to the imposition of the state income tax on non-residents, is vitally important in relation to occupation and labor. The federal constitution grew out of the necessity for freedom of commerce between the different states, and a limitation on occupations and labor between these equal sovereignties not only involves the legal question of jurisdiction, but matters of great economic concern. It is important to bear in mind that the state income tax is a comparatively new revenue feature of the several states. Wisconsin's law, which has been in effect since 1911, and received the approval of the state and federal courts, taxes residents on all income derived from property located and business transacted within the state, and also on income from personal service contracts, mortgages, stocks, bonds and securities. A non-resident is taxable on all the income derived from property located and business transacted within the state, and not on income derived from personal service, land contracts, mortgages, stocks, bonds and securities. The Massachusetts income tax law taxes only residents. It does not tax non-residents on income. Oklahoma and Missouri have provisions taxing non-residents like the New York law, and in Oklahoma the case of Shaffer v. Howard has been carried to the United States Supreme Court, but was dismissed on a jurisdictional point. In the lower court, 250 Fed. Rep., page 874, the non-resident provision was sustained, one of the Justices dissenting and writing an opinion. The case involved in Oklahoma was not a clear-cut case of income arising from occupations or professions, but one of net income arising from property or capital invested in the state. The Missouri statute contains a provision permitting the deduction from the income tax of taxes paid on real estate, personal property, etc., thus making the act, in its administration, of little value, as an income tax measure. CHAPTER XXV. RESIDENCE FOR PERSONAL INCOME TAXATION. The income tax is imposed under Section 351 of the Tax Law on every resident of the state "upon and with respect to his entire net income"; and upon individual non-residents the tax is "upon and with respect to the entire net income as herein defined, except as hereinafter provided, from all property owned and from every business, trade, profession or occupation carried on in this state by natural persons not residents of the state." Under subdivision 7, Section 350 of the law, there is this definition of a resident. "7. The word 'resident' applies only to natural persons and includes for the purpose of determining liability to the tax upon or with reference to the income of any taxable year commencing with the year 1919, any person who shall at any time on or after January 1st, and not later than March 15th of the next succeeding calendar year, be or become a resident of the state." It will thus be seen that residents are taxed upon their entire income while non-residents are taxed on income from property located, and professions, business, etc., carried on within the state. Under subdivision 3 of Section 359 of the law entitled "Gross Income Defined" in the case of taxpayers other than residents, gross income includes only the gross income from sources within the state but shall not include annuities, interest on bank deposits, interest on bonds, notes or other interest bearing obligations or dividends from corporations except to the extent to which the same shall be a part of income from any business, trade, profession or occupation carried on in this state subject to taxation under this article." Since there is therefore this essential difference between the taxation of residents and non-residents, one being taxed on income from all sources, the other being taxed substantially on income 2. What is meant by "sources within the State?" What is a resident?—While the New York law simply states that a resident means "an individual person who shall between January 1st and March 15th, be or become a resident," it has not attempted to define what circumstances or conditions will fix residence for the purpose of personal income taxation. Hence we must look to the laws of this state and of other states, and to the federal law, for light as to the meaning of residence for the purposes of taxation. Residence under Federal income tax law.-Under Subdivision 1, Par. A of the Act of October 3d, 1913, "residence" is held to be that place where a man has his true fixed and permanent home and principal establishment, and to which whenever he is absent, he has the intention of returning; and indicates permanency of occupation as distinct from lodging or board, or temporary occupation." Under the federal income tax act, "residence" is used more in the sense of domicile, the word "home" being referred to in that statute. "Domicile" is, in law, in some way connected with the "home" or principal residence or abiding place of a person. Story on Conflict of Law, Section 41. David Dudley Field, in Section 280 of his International Code, defines "domicile" as the "seat or permanent residence the home." It has been said, however, by legal writers that domicile is something more than residence. Residence is preserved by the actdomicile by the intention. This idea is expressed in Bouvier's Law Dictionary where he defines residence as generally transient in its nature; it becomes a domicile when it is taken up animo manendi. In the federal law the distinction between residents and nonresident aliens is not analogous to the two classes under the state |