92-1733 - Income





Petitioners, ) FINDINGS OF FACT,






) Account Nos. XXXXX

: and XXXXX

Respondent. )



This case was heard in a formal hearing before the Utah State Tax Commission on XXXXX. XXXXX, Administrative Law Judge, heard the matter for and on behalf of the Commission. XXXXX and his certified public accountant, XXXXX, participated by telephone. XXXXX, Assistant Utah Attorney General, was present and represented Respondent.

Based upon the evidence and testimony presented at the hearing, the Tax Commission makes its:


1. The tax in question is individual income tax.

2. The period in question is the years XXXXX-XXXXX.

3. The issue before the Commission in this case is whether or not XXXXX was domiciled in Utah for the years in question.

4. The Auditing Division contends that he was a Utah resident while XXXXX claims he was a Nevada resident.

The facts of the case are as follows:

5. XXXXX lived in Utah from XXXXX-XXXXX. In XXXXX, he built a house in XXXXX, Utah where he was living with his family before his employer, XXXXX, transferred him from XXXXX to XXXXX, Nevada in XXXXX.

6. Prior to the transfer, XXXXX, a truck driver, had been driving the XXXXX-XXXXX runs for XXXXX.

7. In XXXXX, XXXXX decided to terminate its line drivers out of XXXXX and to relocate them to XXXXX.

8. XXXXX then moved to XXXXX into an apartment that he rented until the end of XXXXX.

9. He opened a XXXXX bank account.

10. Upon transferring, he also switched his Teamster Union membership from XXXXX to XXXXX.

11. In XXXXX, XXXXX leased a home in XXXXX, thinking that his family would join him. He remained here throughout the audit period.

12. XXXXX recalls that he was listed in the local XXXXX phone book at this address for the years in question.

13. XXXXX maintained his XXXXX, Utah home throughout the audit years as his wife and daughters continued to live there. He also owned nineteen acres of farmland in XXXXX where he grew alfalfa with another joint owner during this time.

14. XXXXX wife did not join her husband in XXXXX for a number of reasons. First, petitioners owned a video store in XXXXX between XXXXX-XXXXX which XXXXX managed. Although the store was listed for sale in XXXXX-XXXXX, it did not sell. Secondly, XXXXX didn't want to move to XXXXX because she didn't like it. Thirdly, one of Petitioners' daughters stayed to complete her schooling in XXXXX. The other daughter had a baby and needed XXXXX to help care for them.

15. Also, during the years in question, XXXXX maintained all four of his vehicles with Utah registrations and Utah insurance. One car he kept in XXXXX, a truck was used on the XXXXX farmland, and the other two stayed with his family in XXXXX.

16. XXXXX also maintained his Utah chauffeur's license until XXXXX when he obtained the newly instituted nationwide driver's license specially created for truckers. He did not get a XXXXX driver's license before then because he knew that this national driver's license would soon be available to him.

17. Additionally, XXXXX maintained several bank accounts in Utah during the years in question.

18. He purchased resident Utah hunting and fishing licenses in the audit years.

19. Petitioners filed joint federal returns during the years in question listing the XXXXX address for convenience. Their accountant who prepared their returns was located in XXXXX.

20. As a truck driver for XXXXX, XXXXX estimates that he drove from XXXXX to XXXXX about 150 days per year during the audit years. Three or four days per year he drove from XXXXX to XXXXX; another three or four days per year he drove from XXXXX to XXXXX. The rest of the year's time, XXXXX was driving routes to XXXXXX and XXXXX.

21. When XXXXX initially moved from XXXXX to XXXXX in XXXXX, he visited his family in XXXXX every other week on his days off through the end of the year. Later, he went to XXXXX approximately six times per year to visit his family, to check on the farmland, to hunt and fish and to camp.

22. At other times of the year and on other vacations, XXXXX visited other states as well.

23. Throughout the audit years, XXXXX continued to support his family, paying the bills and car and house payments. XXXXX also contributed.

24. XXXXX contends that he abandoned his Utah domicile when he left XXXXX and was transferred to XXXXX in XXXXX. He is certain that he will stay in XXXXX as that is where XXXXX has him based and he has no desire to leave his employment.

25. The Auditing Division argues, however, that the facts presented show that XXXXX has not acted in such a way as to have abandoned his Utah domicile and established a new one in Nevada.


Relevant Utah law states the following:

"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 or temporary 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 Admin. RuleR865-9I-2(D))

Whether or not a person has abandoned a domicile and established a new one is a question of fact.


In consideration of all of the facts determined above, the Tax Commission finds that XXXXX did not abandon his Utah domicile and establish a new one in Nevada. The totality of the circumstances shows that he maintained ties to Utah throughout the audit period sufficient to conclude that he still maintained his Utah domicile while based out of Nevada as a truck driver.

Based upon the foregoing, the Tax Commission confirms the Auditing Division's determination that XXXXX was domiciled in Utah during the audit years XXXXX-XXXXX. Any penalty assessments in this case are waived while the interest is not. It is so ordered.

DATED this 10th day of September, 1993.


W. Val Oveson Roger O. Tew

Chairman Commissioner

Joe B. Pacheco Alice Shearer

Commissioner Commissioner