00-1388

Income Tax

Signed 6/4/02

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONERS, ) ORDER

)

Petitioners, ) Appeal No. 00-1388

)

v. ) Account No. #####

)

AUDITING DIVISION OF ) Tax Type: Income Tax

THE UTAH STATE TAX )

COMMISSION, ) Tax Year: 1997

)

Respondent. ) Judge: Davis

_____________________________________

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER REP, from the law firm of FIRM

For Respondent: Mr. Gale Francis, Assistant Attorney General

Mr. Dan Engh, from the Auditing Division

Ms. Angie Hillas, from the Auditing Division

STATEMENT OF THE CASE

This matter came before the Utah State Tax Commission for an Initial Hearing pursuant to the provisions of Utah Code Ann. §59-1-502.5, on September 27, 2001.

The issue in this proceeding is whether Petitioners are required to file a Utah Individual Income Tax Return for the year 1997.

Petitioners were not personally present at the Initial Hearing, so the facts stated herein are those represented by legal counsel for Petitioners and Respondent, along with those reasonably inferred from those representations. However, there was no real evidence submitted by way of testimony or documents, so there are facts which may be relevant but which are not known.

Petitioner, PETITIONER 1, was raised in CITY, Utah, and after graduating from high school, he attended SCHOOL in STATE on a basketball scholarship. When he completed college in 1993, he signed a contract to play professional basketball in COUNTRY, and up through the audit period he continued to sign additional contracts to play basketball in COUNTRY.

Petitioner, PETITIONER 2 was raised in STATE 2, and attended college in CITY, STATE, and she graduated in 1997. The Petitioners were married in STATE on June 21, 1997, shortly after PETITIONER 2 graduated from college.

Following the wedding of Petitioners in 1997, they spent the summer in Utah, STATE and STATE 2 before going to COUNTRY for the basketball season in the fall.

Evidence was not presented regarding the time that Petitioner, PETITIONER 1, was in either COUNTRY or Utah during 1997. However, it is presumed he would have played basketball through sometime late in the spring in either April or May, and would have returned to COUNTRY in either September or October. Portions of that summer were spent in Utah, STATE 2, and STATE. Petitioner, PETITIONER 2, would have spent very little time in the State of Utah in 1997. It is not known how much time was spent in each location.

Petitioners own a home in Utah, but there was no evidence presented as to when that home was purchased. In COUNTRY, Petitioners live in a residence that is provided to them by the basketball team for which PETITOINER 1 plays. The Petitioners have no home of their own anywhere except in Utah, but representations were made that during the off-season, Petitioners spend time in Utah, STATE 2, STATE, and STATE 3, where PETITIONER 1 has a son.

Both PETITIONERS have international driver's licenses, and Respondent represented that the international driver's license of PETITIONER 1 is based upon his Utah driver's license. There was no documentary evidence presented on driver's licenses by either of the parties from any state, or of their international driver's license.

PETITIONER 1 represents he has not voted in Utah since 1993.

PETITINER 1 is in COUNTRY on a work-permit, and has signed a series of one and two year contracts to continue playing basketball in COUNTRY.

Petitioners filed Utah Individual Income Tax Returns as residents in 1996, 1997 and 1998. In addition, there are years pending of 1999, 2000, and 2001. However, the year 1997 is the only year which had been assessed as of the time of the hearing, and is the only year at issue in this proceeding. It is unknown whether PETITIONER 2 was included on the tax return for the year 1996. The 1997 return was filed as a married filing joint return. On the joint return filed for 1997, the parties deducted a credit for income tax paid to another state on their Utah return. Respondent made an adjustment for that credit, because the taxes were not paid to another state, but were paid to another country, i.e., COUNTRY. Therefore, Petitioners now say their filing of the Utah return was erroneous and they were not required to file a return in the State of Utah.

APPLICABLE LAW

1. A resident individual means an individual who is either domiciled in this state for any period of time during the taxable year, or who is not domiciled in this state but maintains a permanent place of abode in this state and spends in the aggregate 183 or more days of the taxable year in this state. (Utah Code Ann. §59-10-103(1)(j).)

2. "Domicile" means the place where an individual has a true, fixed, permanent home and principal establishment, and to which place he has (whenever he is absent) the intention of returning. It is the place in which a person has voluntarily fixed the habitation of himself and family, not for a mere special purpose, but with the present intention of making a permanent home. After domicile has been established, two things are necessary to create a new domicile: First, an abandonment of the old domicile; and second, the intention and establishment of a new domicile. The mere intention to abandon a domicile once established is not of itself sufficient to create a new domicile; for before a person can be said to have changed his domicile, a new domicile must be shown. Utah Administrative Code R865-9I-2.D.

3. A person's intentions are determined by his or her actions, and not by verbal declarations.

DISCUSSION

In this matter, there is very little evidence that would indicate that Petitioner, PETITINOER 2, was required to file an individual income tax return in Utah for 1997. She was from STATE 2, attended college in STATE, was married in STATE 2, spent some time in Utah after their marriage, but it very clearly would have been less than 183 days. Therefore, other than marrying a man who was from Utah, filing a Utah tax return, and purchasing a house in Utah, there is no other evidence to indicate she was a resident of Utah for 1997. Therefore, the Commission determines there is not sufficient evidence to find that PETITIONER 2 was required to file Utah resident income tax return in the State of Utah for 1997.

However, the primary dispute appears to be over the income of PETITIONER 1.

In applying the rule, it is clear that PETITIONER was raised in Utah and domiciled in Utah through his high school years. After high school, he attended college in STATE, but there is no evidence that indicates he either abandoned his domicile in Utah or established a domicile in STATE during the years he was attending college. While there is no evidence, it is presumed that he spent some of his summers in Utah with his family and continued to drive on a Utah driver's license. Once PETITIONER completed college, he went to COUNTRY to play basketball. Again, although no evidence was submitted of actual driver's license issuance, there is nothing to indicate he revoked or cancelled his Utah driver's license, and representations were made he acquired an international driver's license based upon his Utah driver's license. There was no evidence that PETITIONER 1 obtained a driver's license in any other state within the United States.

On the Federal Income Tax Return of Petitioners, they represented they were bona fide residents of COUNTRY, but that does not prevent them from being domiciled in the State of Utah.

There is no evidence to indicate that PETITIONER 1 ever abandoned his domicile in the State of Utah, and it also appears, and the Commission finds, that his presence in COUNTRY was for a special or temporary purpose of being employed to play basketball. Once the basketball season ended, he left COUNTRY and did not return until it was time for the next basketball season to begin. Also, there is no indication that Petitioners intend to remain in COUNTRY once the basketball career of PETITIONER 1 is concluded.

PETITINER 1 also has not established a domicile in any other state. It is represented they do have a home in Utah, and although it was represented it was a vacation home, it appears they would spend more time in Utah at the home which they own than in any other state, and that Utah is the place to which they intend to return whenever they are away.

DECISION AND ORDER

Based upon the foregoing, the Commission determines that for 1997, Petitioner, PETITINOER 1, was domiciled in the State of Utah and was required to file a Utah Individual Income Tax Return as a resident of this state. Therefore, the Petition for Redetermination is denied. It is so ordered.

This decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:

Utah State Tax Commission

Appeals Division

210 North 1950 West

Salt Lake City, Utah 84134

Failure to request a Formal Hearing will preclude any further appeal rights in this matter.

DATED this 4^th day of June , 2002.

____________________________________

G. Blaine Davis

Administrative Law Judge

BY ORDER OF THE UTAH STATE TAX COMMISSION.

The Commission has reviewed this case and the undersigned concur in this decision.

DATED this 4^th day of June , 2002.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner