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Published online by Cambridge University Press: 25 April 2017
In the October, 1942, number of this JOURNAL, was published an article by one of the present authors dealing with the jurisdiction of the courts of one country over the personnel of the armed forces of another friendly country at the time on the soil of the former. The presence in so many instances, in the war now raging, of the armed forces of one power in the territory of another was mentioned as the reason for the timeliness of that article. This situation still continues and makes equally timely an examination of the rights and the practice of a host country with respect to taxation of the friendly visiting forces, their operations, supplies, and personnel.
2 King, , Jurisdiction over Friendly Foreign Armed Forces, this Journal, Vol. 36, p. 539 Google Scholar.
3 Op. cit., p. 539.
4 7 Cranch 116.
5 Ibid., p. 136.
6 Ibid., p. 137.
7 Cranch p. 139.
8 Recueil des Cours de l’Académie de Droit International de la Haye, Vol. 7, p. 318.
9 In Hackworth, , Digest of International Law, Vol. II, p. 469 Google Scholar, the Department of State is quoted as saying, with respect to the attempted taxation of United States consular property in a foreign country:—
“It is the understanding of the Department that public property of a government, situated within the jurisdiction of another government, which property is destined for the public use of the government owning it, may properly be held under principles of international law to be generally immune from taxation.”
On another occasion (Hackworth, op. cit., Vol. II, p. 415), the Department of State said:
“ It is well settled in international law that the public property of foreign governments is not amenable to the local jurisdiction for tax purposes.
In French, Republic v. Board of Supervisors, 200 Ky. 18, 252 S. W. 124, Jefferson County, Kentucky, had attempted to assess for taxation certain tobacco in a warehouse in Louisville, the property of the French Government. After remarking on the immunity of the French Government from suit in the courts of Kentucky and the impossibility of collecting the tax in irmtum, the Supreme Court of Kentucky quoted Chief Justice Marshall’s opinion in the case of the Schooner Exchange, already discussed, and went on to say (200 Ky. 22, 252 S. W. 125):
“Hence, if one nation enters the territory of another with its consent, for the purpose of mutual intercourse, it does so with the implied understanding that it does not intend to degrade its dignity by placing itself or its sovereign rights within the jurisdiction of the other, and we know of nothing more calculated to degrade the dignity of an independent nation than for another to attempt to exercise over it the sovereign right of taxation.”
The court set aside the assessment.
10 Paris, 1927, p. 115.
11 Lawrence, , Principles of International Law, 7th ed., p. 294 Google Scholar; Pitt, Cobbett, Leading Cases on International Law, Vol. I, p. 318 Google Scholar; Poster, , Practice of Diplomacy, p. 171 Google Scholar; Feller, and Hudson, Diplomatic and Consular Laws and Regulations, Vol. II, p. 1348 Google Scholar; act of December 24, 1942, 56 Stat. 1089; letter from the Assessor of the District of Columbia to one of the authors; Reference re Tax on Foreign Legations [1943], 2 Dominion L.R. 481. The opinion by Chief Justice Duff of the Supreme Court of Canada in the case last cited is so encyclopaedic in its citation of authority and so convincing in its reasoning as to make it unnecessary, with respect to this point, to do more than to refer to it.
12 Foreign Relations of the United States, 1900, p. 762 et seq.; Moore, , Digest of International Law, Vol. II, 62 Google Scholar.
13 Hackworth, , op. cit., Vol. II, pp. 414 Google Scholar, 415.
14 In the files of the War Department. Translation supplied.
15 Government Printing Office, 1920, pp. 70–72.
16 Journal officiel, Mar. 18–19, 1917, quoted in 46 Journal du Droit International Privé 871 (1918).
17 Hackworth, op. cit., Vol. II, p. 407.
18 Ibid., p. 408.
19 Hackworth, op. cit., VoL II, p. 421.
20 Ibid., p. 483.
21 Ibid., p. 416.
22 26 U. S. Code 116 c.
23 56 Stat. 461 ; 50 U.S. Code, Appendix, 791.
24 26 U. S. Code 3469. The statements in the above paragraph are based upon a letter from the Deputy Commissioner of Internal Revenue to one of the authors.
25 Hackworth, op. cit., p. 414.
26 In the files of the War Department
27 Hackworth, op. cit., Vol. II, p. 413.
28 French Republic v. City of New York, N. Y. Law Journal, Dec. 30, 1925, p. 1279.
29 The foregoing statement is based upon a letter and inclosures kindly sent one of the authors by the Comptroller of the City of New York.
30 Hackworth, op. cit., p. 415.
31 Translation supplied. Martens, , Nouveau Recueil de Traités, Vol. 6, p. 397 Google Scholar, at p. 401.
32 Malloy, , Treaties, Conventions, etc. between the United States and Other Powers, Vol. I, p. 361 Google Scholar.
33 Malloy, op. at., Vol. II, p. 1353.
34 Treaties, Conventions, etc., between the United States and other Powers, Vol. III, p. 2741.
35 Ibid., Vol. IV, p. 4179; Treaty Series No. 757.
36 Lahalle et Levard c. American Battle Monuments Commission, Cour de Paris, Ire Ch., Feb. 28, 1936, in 32 Revue Critique de Droit International 484 (1937); Hackworth, op. cit., Vol. II, p. 471.
37 Great Britain, Treaty Series, 1925, No. 17.
38 Vol. 35, Supp. p. 134; H. Rep. Doc. 158,77th Cong., 1st Sess.; Dept. of State, Executive Agreement Series, No. 235.
39 Principles and Procedures for Local Procurement in the United Kingdom. Issued Dec. 31,1942, by the Commanding General, S.O.S., U. S. Army Forces in Great Britain.
40 State Department Press Release No. 109, Mar. 18, 1942.
41 Both notes are printed in full in Executive Agreement Series 339, Department of State.