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