02-0347

Income Tax

Signed 8/12/02

 

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

 

PETITIONER, ) ORDER

)

Petitioner, ) Appeal No. 02-0347

)

v. ) Account No. #####

)

AUDITING DIVISION OF ) Tax Type: Income Tax

THE UTAH STATE TAX )

COMMISSION, ) Tax Year:

)

Respondent. ) Judge: Davis

_____________________________________

 

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER

For Respondent: Mr. Gale Francis, Assistant Attorney General

Mr. Brent Taylor, 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 July 29, 2002.

Petitioner lived in Utah from 1990 through 1998. Petitioner filed Utah Resident Income Tax Returns for those years, including 1998. For 1999, Petitioner filed a Utah Non-Resident Income Tax Return, and in 2001, Petitioner again filed a Utah Resident Individual Income Tax Return.

Petitioner left Utah on or about February 12, 1999 and was employed on CITY, in COUNTRY, which is a dependency of COUNTRY. He was there until October 15, 1999, when he returned to the United States. Petitioner spent some of that time after October 15 travelling, including STATE, and also returned to Utah for part of that time.

Petitioner again left Utah and went to CITY in February 2000, and was there until October 2000. He did the same thing in 2001, i.e., went there from Utah in February of 2001, and returned in October 2001. Petitioner now resides in CITY, STATE.

The years at issue in this proceeding are 1999 and 2000. During all of those times, Petitioner maintained a bank account in Utah, his automobile was registered in Utah, and he had a Utah driver's license. In addition, he would return to Utah whenever he was not working in COUNTRY. His periods of employment were primarily the summer periods in that area, and then he would return to Utah and the United States when winter came to the southern hemisphere.

Petitioner is a single man and does not have a wife or children in either location.

Petitioner maintained a post office box in Utah through which his mail was sent, and was forwarded to his aunt in STATE, and then she would forward important mail to him. His aunt in STATE took care of most of his business matters in the United States.

Petitioner did not have a bank account in COUNTRY, but maintained his BANK 1 account which started off with BANK 2. BANK 1 did have an ATM machine in COUNTRY from which Petitioner could obtain cash when it was needed.

Petitioner did not register an automobile in COUNTRY, but he left his automobile with his aunt in STATE. He continued to re-register the car and drive on Utah license plates.

Petitioner maintained his Utah driver's license, but was issued a separate card which allowed him to drive in COUNTRY.

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

Utah law requires persons who are domiciled in Utah to file income tax returns and pay tax on their income regardless of where it is earned. Petitioner was admittedly domiciled in Utah from at least 1990 through 1998. Once he established his domicile in Utah "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."

In this case, there is no evidence that Petitioner took any steps to abandon his Utah domicile, but instead, continued to return to Utah and continued to have more business contacts with this state than with any other state. Petitioner also did not take any affirmative actions to establish a domicile in any other state or location, including CITY or COUNTRY. Instead, it appears that his presence there was for the temporary purpose of his employment. CITY was a temporary location, and it was not the place at which he intended to establish his domicile or to which he intended to return whenever he was absent.

DECISION AND ORDER

Based upon the foregoing, the Commission hereby determines that Petitioner's domicile continued to be in Utah, and he was accordingly subject to income tax in this state for the years 1999 and 2000. Accordingly, the audit assessment made by Respondent is hereby sustained, and the Petition for Redetermination is hereby 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 12th day of August , 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 12th day of August , 2002.

 

 

 

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

 

 

 

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner