01-1373

Income Tax

Signed 2/25/02

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, ) ORDER

)

Petitioner, ) Appeal No. 01-1373

)

v. ) Account No. #####

)

AUDITING DIVISION OF ) Tax Type: Income Tax

THE UTAH STATE TAX )

COMMISSION, ) Tax Year(s):

)

Respondent. ) Judge: Davis

_____________________________________

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER REP

PETITIONER

For Respondent: Mr. Dan Engh, from the Auditing Division

Mr. Steve Nelson, 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 January 31, 2002.

Petitioner has lived in several states during his lifetime, and has periods as a trucker, when he had very few ties to any state. His mother has lived in CITY, Utah at all times relevant to this proceeding, and he has frequently stayed with her for long periods of time. Petitioner was married and he owns a home in CITY 2, Utah which is occupied by his former wife and his daughter. Petitioner has also used addresses in CITY 3 and STATE. At various times, he has used all of those addresses.

This proceeding originally involved the years 1999 and 1996. However, the parties have reached an agreement for the year 1996, so 1999 is the only year at issue in this proceeding.

Petitioner was divorced from his wife in the State of Utah in either late 1997 or early 1998. In September 1998 he received a job offer and began driving truck out of CITY 4, STATE, and later CITY 5, STATE.

During most of the year 1999, Petitioner drove truck for COMPANY A, a Utah based company, but he was stationed in STATE. However, for two weeks during 1999, Petitioner drove truck for COMPANY A, for another two weeks he drove truck for COMPANY C, and for another one week he drove truck for COMPANY D, all within the State of Utah. Therefore, he worked in Utah approximately five weeks of 1999, and drove truck from a base in STATE for approximately 47 weeks.

In 1998, Petitioner joined an Air National Guard unit based in CITY 5, and continued to attend drills in CITY 5 one weekend each month, including the period of time while he was working out of STATE.

During the time at issue, Petitioner had a Utah driver's license, and he did not have a driver's license in any other state. Petitioner also had a driver's license in STATE 2 and STATE 3 in earlier years, but during the times in question drove only on a Utah driver's license. His Utah driver's license was renewed in 2001, and shows the home that he owns in CITY 2, which is occupied by his ex-wife, as his address on his driver's license. During that time, Petitioner had two vehicles registered within the State of Utah, one of which was driven by his former wife, and he had no vehicles registered in STATE or any other state.

When Petitioner would return to CITY 5 to attend drills at the Utah Air National Guard, he would stay either with his mother in CITY, Utah, or at the "HOTEL" which is located in National Guard facilities in CITY 5.

In October 2000, Petitioner was activated by the Utah Air National Guard and returned to live in Utah. After six months, he was offered a full time job which he accepted with the Utah Air National Guard, and is still employed there and living in Utah at this time.

Prior to going to STATE, Petitioner had a checking account with CREDIT UNION in CITY 5, Utah, and he has continued using that as his only bank account, even when he was in STATE.

Petitioner is not registered to vote in any state, and has not had a hunting or fishing license in any state. Petitioner did have surgery in STATE at the HOSPITAL, and the only doctors he has seen during the periods at issue have been at the HOSPITAL. Petitioner did open a securities account in STATE while he was there.

During the times at issue, most of Petitioner's wage, dividend and interest statements were mailed to him at one of his Utah addresses, although a few were mailed to him in STATE.

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

Petitioner maintains that for the year 1999, he was domiciled in the State of STATE. However, it is clear that he was domiciled in the State of Utah prior to going to STATE, and even while he was working out of STATE, he frequently returned to the State of Utah. Further, during the year at issue, he worked in Utah for five weeks of the year, and returned to CITY 5 at least once every month to attend his Air National Guard drills. Further, he had only Utah checking accounts, Utah driver's license, real estate owned in Utah, his former wife and child are in the State of Utah, his vehicles are registered in Utah, and his financial information is all handled within the State of Utah. On the other side, his physical presence during 1999 was primarily in STATE, and he was employed in that state. However, that appears to be just a special or temporary purpose.

In this proceeding, for the Commission to find that Petitioner was not subject to income taxes in the State of Utah for 1999, it would be necessary for Petitioner to show that he abandoned his domicile in Utah and established another domicile in STATE. There is very little evidence to show any abandonment of a Utah domicile, and there is even less evidence to show that he established a domicile in STATE. Accordingly, the Commission determines that Petitioner was domiciled in Utah in 1999.

DECISION AND ORDER

Based upon the foregoing, the Commission determines that Petitioner was domiciled in the State of Utah in 1999, and was therefore required to file a resident income tax return which included all of his income from whatever state such income may have been earned. The Petition for Redetermination is hereby denied.

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 25^th day of February , 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 25^th day of February , 2002.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner