BEFORE THE UTAH STATE TAX
COMMISSION
_____________________________________
XXXXX, )
:
Petitioners, ) FINDINGS OF FACT,
: CONCLUSIONS
OF LAW,
v. ) AND FINAL DECISION
:
AUDITING
DIVISION OF THE ) Appeal No. 92-1733
UTAH STATE TAX
COMMISSION, :
) Account
Nos. XXXXX
: and XXXXX
Respondent. )
_____________________________________
STATEMENT OF CASE
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:
FINDINGS OF FACT
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.
CONCLUSIONS OF LAW
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.
DECISION AND ORDER
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.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
W. Val
Oveson Roger
O. Tew
Chairman Commissioner
Joe B.
Pacheco Alice
Shearer
Commissioner Commissioner