Recovery of Taxes

(Continued from page 149) of the country within which he will be living, permit sale or disposal of the item prior to the owner's return to the United States. Its sale may be flatly prohibited, permitted only if to other U.S. personnel, or it may be necessary to obtain permission from foreign authorities and pay their customs duties and taxes in connection with such a sale.

Government transportation may not be used to transport property owned by service personnel, to a foreign country or United States possession for the sole purpose of sale. It must be understood that only items intended for personal use by the member of the Armed Forces or his or her dependents, at the member's duty station, may be shipped at government expense; and that any contemplated sale should be near the end of the tour of duty or in accordance with area regulations and local laws.

Although this article includes a general explanation of the law and regulations relative to filing claims to recover the excise tax paid on exported articles, the question of whether the evidence presented will be satisfactory to support a claim in any given instance is a matter to be resolved by the particular District Director of Internal Revenue who has jurisdiction. The fact an individual may have included all the information specified in this article does not necessarily mean the District Director, with whom the claim is filed, will not ask for more details or further investigate the claim. One other word of caution to those fortunate enough to sell their automobiles or other items overseas, at a greater price than the price they paid-any profit resulting from sale of personal property, whether the sale takes place within the United States, a possession of the United States or a foreign country, is taxable income that must be reported as capital gain on income tax returns of citizens of the United States and resident aliens.10

10. NAVEXOS P-1983, JAG Federal Income Tax Pamphlet, ¶¶ 21 and

23.

Impossibility as Defense (Continued from page 153) in another room. 42 To endeavor to shoot another with an unloaded weapon will sustain a conviction of attempted murder,43 and the purchase of an innocuous white powder, believing that it is a narcotic, will sustain an attempt conviction."

In the foregoing examples where the defendant has the requisite mens rea and performs some overt act amounting to more than mere preparation, it is apparent that by the use of the "reasonable man test" the conviction of an attempt should be sustained upon appeal even though it was later discovered that the crime was impossible to complete. The later discovered facts should not alter the situation where the accused's intentions and action are clear.

In the instant case, Judge Kilday points out that if the Court were to follow the Board of Review it "would lead military jurisprudence into the morass of confusion as to criminal attempts in which civilian jurisprudence finds itself immobilized and from which heroic efforts are being, made to extricate it." Thus, the Court refused to become involved in the question of "factual" or "legal" impossibility. In part the Court quoted from the American Law Institute's Model Penal Code which provides that:

... A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attending circumstances were as he believes them to be. . . .45 This is in accordance with the provision of paragraph 159 of the Manual for Courts-Martial noted above. Thus, the Court's decision in this case follows the better line of cases and provides for the military a workable rule, given to uniformity, and one relatively easy to apply.

42. Note 11 supra.

43. State v. Damms, 9 Wis. 2d 183 (1960).

44. People v. Sui 126 Cal. App. 2d 41 (1954); United States v. Dominquez, 7 USCMA 485 (1957).

45. See Article 5.01, Model Penal Code of the American Law Institute, Tentative Draft No. 10, May 6, 1960.

Petroleum and National Defense (Con. from page 158) During the past decade it has become increasingly clear that a national defense is a hollow objective if it does not include defense of the entire free world. We have learned that we cannot fence in our resources from the rest of the free world-nor can we fence out the problems of those whom we have and those whom we need for allies. The availability of reasonably priced fuel for energy in a nation is a good

index of a nation's strength and ability to survive in the international economy. The Russians know this well and are busily engaged in attempting to make the Eastern bloc an indispensible economic ally, in the energy field, with the unaligned countries. This is an area where the battle lines are already drawn-and an area

7. Reds' Oil Offensive, How to Check it, World Oil, Vol. 153 No. 4 Sep. 1961. See also 107 Cong. Rec. 19187 (Sep. 20, 1961) and 107 Cong. Rec. 15734 (Aug. 23, 1961).

that is going to demand the maximum ingenuity on the part of the free world if the Russian onslaught is to be contained.

A case in point is Brazil. This country has vast undeveloped deposits of oil shale. It has a paucity of petroleum production. Presently Brazil must import about 170,000 barrels of petroleum per day which causes a severe drain on her foreign exchange. One answer, of course, lies in the development of Brazil's domestic shale. The Soviets know this answer as well as we. The challenge to the United States, then, is to assist countries like Brazil in the development of their own resources. Failing this, resource development and energy capacity in such countries is likely to become entirely enmeshed in the economic net of the USSR. With the establishment of of this umbilical connection of strength, the political pulse of such countries would be especially vulnerable to the International brand of socialism.

Juridically, concerned governmental and military agencies, such as the Department of the Interior and the Department of the Navy are ill-equipped to conduct a struggle, on Soviet terms, for strong economic ties in the world petroleum front. This is because our petroleum and oil shale are largely privately owned and are not subject to governmental fiat with respect to price of sale and place of sale. On the other hand the Soviets can make a political decision to sell oil to Italy, for instance, at 20 to 30 cents per barrel lower than the otherwise delivered competitive price. A democracy does not enjoy such flexibility. The writer does not advocate otherwise. However, vistas of challenge are present. One of these might be met, for example, by offering technological consultation to the national shale industry of Brazil.

Another possibility is the sale of government

owned oil at reduced rates. The remedial, test, and necessary offset production from the lands in the Naval Petroleum Reserves nets approximately 13,000 barrels of crude oil per day. This is government oil which is sold at domestic competitive market prices, the proceeds going into the general fund of the treasury. Why, it is asked rhetorically, couldn't this oil be sold at a reduced price to some free country? This would help independent states to resist Soviet penetration and, moreover, would affirmatively assist the purchasing country by strengthening its refining industry. Such a program could not be undertaken lightly as it would cost the taxpayers money (the difference between the present price received for the oil and the "political" price that would be received) and it would, in a sense, place the federal government in the position of competing with private oil companies for foreign markets.

Still another possibility lies in the field of oil import regulation. Importers are clamoring for increased import quotas, for imported oil, being cheaper, allows a greater margin of profit. Perhaps importers could be allowed to earn a "bonus" which would increase their import quota. This "bonus" could be earned by the competitive sale of certain quantities of foreign produced oil to those countries in which the Soviet oil offensive is strongest, at a lesser profit, of course, than could be otherwise obtained.

These latter two possibilities involve political decisions which are to be carried out, rather than made, by the military establishment. They do, however, represent the prospective movement of philosophy-which is but a logical extension of the policy of the Naval Petroleum and Oil Shale Reserves, i.e., that resources are to be preserved for ultimate use in the defense of the free world.

Section 514 (1) of the Soldiers and Sailors Civil Relief Act of 1940 (50 USC App. 574) has been amended by Public Law 87-771 to provide that where an owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, the exemption under section 514, with respect to personal property, or the use thereof, applies within any tax jurisdiction other than the place of resi

dence or domicile of the owner, regardless of where the owner may be serving in compliance with such orders. For example, if an owner of personal property is absent from his home State or place of domicile as a result of compliance with military orders and leaves his personal property in some State other than his State of domicile, such property is not subject to taxation by the non-domiciliary State even though the owner may be serving overseas or outside the State where his property is located.

In the opinion of the Judge Advocate General the cited amendment does not alter the exemptions under

section 514 of the Relief Act, but merely clarifies the previously existing law or intent of Congress. It will be noted that section 514 of the Relief Act, as amended, provides no exemption from the taxes imposed by the place of residence or domicile of a member of the Armed Forces. Whether service personnel are subject to State income and personal property type taxes will depend upon the laws of their "home" or domiciliary State or jurisdiction.

1962 WEST COAST NAVAL RESERVE LAW SEMINAR

Thirty-eight Naval Reserve Officer-Lawyers, representing nine states, attended the West Coast Naval Reserve Law Seminar at Treasure Island, San Francisco, from July 21 through August 3, 1962. In addition, some twenty-three active duty officers and forty civilian guests were in attendance.

The seminar, sponsored by the Judge Advocate General, was prepared and supervised by the District Legal Officer, Twelfth Naval District. One week's work in military jurisprudence was presented by the School of Naval Justice. The second week was devoted to posttrial matters. During the second week of the seminar, lectures were presented by outstanding authorities in the fields of criminology, law enforcement and rehabilitation.

RESERVE OFFICERS PERFORMING ACTIVE DUTY TRAINING IN JAG DURING SEPTEMBER AND OCTOBER 1962

CDR Robert J. Clendenin, USNR, Commanding Officer, Reserve Law Company 9-18, Peoria, Illinois-Assigned to International Law Division. CDR Frederick A. Miller, USNR, Milwaukee, Wisconsin-Assigned to Appellate Government. CDR August G. Schneider, USNR, Reserve Law Company 4-1, Hatboro, Pennsylvania-Assigned to Legal Assistance Division.

CDR Arthur Carlisle Young, USNR, Reserve Law Company 6-6, Decatur, Georgia-Assigned to Legal Assistance Division.

LCDR Jerome A. Deming, USNR, Reserve Law Company 9-1, Chicago, Illinois-Assigned to Reserve Retirement Section, Bureau of Naval Personnel. LT Charles J. Weigel, II, USNR, Houston, Texas-Assigned to Investigations Division.

MILITARY PERSONNEL DIVISION

CDR Bobby D. Bryant, USN, from NAS Pensacola to
Third Marine Division, Okinawa.
CDR James F. Chapman, USNR, from Third Marine
Division (Reine) FMF to NAVSUPPACTY, Naples.
LT John B. Evans, USN, from NavSta, Norfolk to
Com Nine.

LT John T. Glades, USNR, from RecSta, Treasure Island to USS KITTY HAWK (CVA-63).

LT John W. Howay, USN, from NAS, Key West to USS HANCOCK (CVA-19).

LT John M. Meighan, USN, from NavRecSta, Washing-
ton, D.C. to USS SARATOGA (CVA-60).
CAPT Louis L. Milano, USN, from NAVSUPPACTY,
Naples to COMNVACTY, Italy.

LT William R. Palmer, USNR, from NAS, Miramar to
USS BON H RICHARD (CVA-31).

LCDR Donald E. Selby, USN, from USNAVPGSCOL, Monterey to USNH, Bethesda.

LT Frederick M. Switzer, USNR, from COMFAIR-
WING THREE to USS ORISKANY (CVA-34).
CDR Andrew J. Valentine, USN, from AFSC to NAS,
Pensacola,

LTJG Robert B. Whitlock, USNR, from RecSta, Treas-
ure Island to USS RANGER (CVA-61).
LTJG Lyman C. Harrell, USNR, from SNJ to NAS,
Memphis.

LT Richard L. Bonello, USNR, from NSY, Portsmouth to NAVSUPPACTY, Naples.

LTJG Donald W. Brodie, USNR, from SNJ to JAGO. JTJG Richard C. Browne, USNR, from SNJ to JAGO. LTJG John C. Carton, USNR, from SNJ to NAVADMINCOM, NTC, Great Lakes.

LTJG Matthew J. Gormley, III, USNR, from SNJ to Portsmouth Naval Shipyard, Portsmouth.

LT William A. Crane, USNR, from NAVSTA, Keflavik, Iceland to SNJ.

LTJG James W. Dee, USNR, from SNJ to NAVSTA, Keflavik, Iceland.

LTJG John F. Haggerty, USNR, from SNJ to HELTRARON EIGHT, Ellyson Field.

LTJG Lynn C. Higby, USNR, from SNJ to NAS, Pensacola.

LT Thomas J. Hilligan, USNR, from NAVSTA, Rota, Spain to JAGO, West Coast.

LTJG William E. Hornung, USNR, from SNJ to NAVSTA, Rota, Spain.

LTJG Milton W. Kirkpatrick, USN, from CNAVANTRA, Corpus Christi to USS FRANKLIN D. ROOSEVELT (CVA-42).

CDR James P. Kenny, USN, from COMNAVPHIL to NAVY-MARINE Corps Judiciary Activity Branch Office, San Bruno, Calif.

LTJG Rabe F. Marsh, III, from SNJ to NAS, Pensacola. LTJG Peter J. Mansmann, USNR, from NSJ to CNABATRA, Pensacola.

LTJG Bernard Medoff, USNR, from SNJ to NAS,
Corpus Christi.

LT John M. Meighan, USN, from NAVSECSTA, Wash-
ington, D.C. to USS SARATOGA (CVA-60).
LTJG John T. Montag, USNR, from SNJ to JAGO.
LTJG Eric A. Nobles, USNR, from NAS, Memphis to
Marine Corps Base, Camp Pendleton.

LT Robert W. Pleasant, USNR, from NAVSUPPACTY,
Naples, to SNJ.

LTJG Wyley D. Roberts, USNR, from SNJ to NAVSTA, Norfolk.

LTJG Mark Sabin, from SNJ to CNAVANTRA, Corpus Christi.

LTJG Warren A. Schneider, Jr., USNR, from SNJ to NAVSECSTA, Washington, D.C.

LTJG David C. Todd, USNR, from SNJ to JAGO. LTJG Daniel J. Ziemniak, USNR, from SNJ to NAS, Lakehurst.

U.S. GOVERNMENT PRINTING OFFICE:1962