Re Succession of Doña Carmen de Goyeneche

JurisdicciónPerú
Número de expediente209
Fecha13 Mayo 1921
EmisorCorte Suprema (Perú)
Peru, Supreme Court.
Case No. 209
In re Succession of Doña Carmen de Goyeneche.

Diplomatic Privileges — Permanent Diplomatic Envoys — Fiction of Extraterritoriality — Domicile.

The Facts.—The Peruvian laws fixed a higher tax on property passing by inheritance to Peruvians not domiciled in Peru than to those domiciled in the Republic. The property of Doña Carmen de Goyeneche went to Don Juan Mariano de Goyeneche and his sister Doña Maria Josefa de Goyeneche. He was, and had been for years, the Peruvian minister to the Holy See; his sister lived with him in Rome. They claimed to remain domiciled in Peru, however, by virtue of the extraterritoriality of a diplomatic minister and his household. The lower Court held that Don Juan was only obliged to pay the tax of a person domiciled in Peru, but that his sister must pay the higher rate. The Superior Tribunal held that both should pay the lower rate. On appeal,

Held: That the judgment must be reversed and both directed to pay at the rate fixed for persons domiciled abroad. Neither of them could be considered as domiciled in Peru. The fiction of extraterritoriality cannot establish the purely civil fact of domicile, since the immunities which international law accords the diplomatic representative, to assure his independence, do not modify the rules of private law to which he is subject in his own country. If, in virtue of these immunities, his residence is admitted to form part of the national territory, this does not have the result of attributing to him a domicile which he had already renounced, as in this case. It was well known that when Don Juan Mariano de Goyeneche was appointed Minister of the Republic to the Holy See he then had no domicile in Peru, because he had for many years established his voluntary domicile abroad.

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