87-3279 - Income

 

BEFORE THE STATE TAX COMMISSION OF UTAH

_____________________________________

XXXXX

Petitioner, :

v. : INFORMAL DECISION

COLLECTION DIVISION OF THE : Appeal No. 87-3279

UTAH STATE TAX COMMISSION, : Acct. No. XXXXX

Respondent. :

_____________________________________

STATEMENT OF CASE

This is an appeal to the Utah State Tax Commission from a decision of the Collection Division of the Utah State Tax Commission (Respondent) to assess a penalty on individual income tax acct. No. XXXXX for XXXXX. Petitioner also requested a determination as to his residency status for XXXXX. A telephone conference hearing was scheduled for XXXXX in the offices of the Utah State Tax Commission. The Petitioner did not provide his phone number and did not otherwise contact the Tax Commission. In light of the fact that Petitioner is currently in XXXXX, the Tax Commission decides this matter based on the materials in the file and will treat Petitioner's failure to contact the Tax Commission as a voluntary waiver of his right to an oral hearing.

Petitioner stated that he ceased to be a resident of Utah on XXXXX when he came to XXXXX to work for the XXXXX as a civilian. He sold his house in Utah and no longer owns property in Utah. Petitioner is not registered to vote in Utah, his automobiles are registered in XXXXX, he does not have a Utah driver's license, and he banks with XXXXX in XXXXX. Petitioner stated that he does not intend to return to Utah. Petitioner requests a waiver of the penalty for the tax year XXXXX and requests a refund of the taxes paid to Utah for the tax years XXXXX.

FINDINGS

Penalty for XXXXX has been reduced from $$$$$ to $$$$$. The Tax Commission finds no basis on which to further reduce the penalty.

The Petitioner is a resident of Utah for tax purposes. The Utah Code Ann. 59-10-103(1)(h) (1953) defines a resident as an individual domiciled in Utah during the taxable year or an individual not domiciled in Utah but who maintains a permanent place of abode in Utah and spends at least 183 days of the taxable year in Utah. Petitioner clearly qualified as a Utah resident prior to XXXXX.

Tax Commission Rule R865-02I-1-D sets forth the requirements to create a new domicile.

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. Petitioner has not entirely abandoned his old domicile in Utah. Petitioner maintains an account at the XXXXX in XXXXX. Nor has Petitioner established a new domicile. "There is a strong presumption that a person in a foreign country intends to retain his national domicile." 25 Am Jur 2d 86 (citations omitted). An employee of the governmental civilian service whose duties require a change of residence does not change his domicile absent an intent to abandon his old domicile and acquire a new domicile. 25 Am Jur 2d 42. (citations omitted). Petitioner has the burden of proof to establish intent. Insufficient evidence has been received to establish the requisite intent. The evidence presented indicates that Petitioner is currently residing in XXXXX but does not distinguish Petitioner from a civilian employee residing in XXXXX but intending to maintain a stateside domicile. There is also a presumption that a soldier does not change his domicile by foreign service. 28 C.J.S. 12. Although Petitioner is not in XXXXX, he is a civilian working for XXXXX, enjoying many of the same rights and privileges of XXXXX and subject to many of the same restrictions.

DECISION AND ORDER

Based on the foregoing, it is the decision and order of the Utah State Tax Commission that the Petitioner's request for a waiver of the penalty on individual income tax acct. No. XXXXX for XXXXX be denied.

Petitioner is a resident of Utah for Utah state income tax purposes for XXXXX.

The assessment of penalty and interest by the Collection Division of the Utah State Tax Commission is hereby affirmed.

DATED this 29 day of September, 1988.

BY ORDER OF THE STATE TAX COMMISSION OF UTAH.

R. H. Hansen Roger O. Tew

Chairman Commissioner

Joe B. Pacheco G. Blaine Davis

Commissioner Commissioner