BEFORE THE UTAH STATE TAX
COMMISSION
______________________________
XXXXX
Petitioner, : FINDINGS OF FACT,
: CONCLUSIONS
OF LAW
v. : AND FINAL DECISION
:
AUDITING
DIVISION OF THE : Appeal No. 92-2000
UTAH STATE TAX COMMISSION, :
: Account
No. XXXXX
Respondent. :
__________________________________
STATEMENT OF CASE
This
matter was heard before the Utah State Tax Commission on XXXXX. Lisa L. Olpin, Administrative Law Judge,
heard the matter for and on behalf of the Commission. Petitioner was present and represented himself. 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:
FINDINGS OF FACT
1. The tax in question is individual income
tax.
2. The years in question are XXXXX and XXXXX.
3. The Auditing Division contends that
Petitioner was a Utah resident and domiciled in Utah during the years in
question.
4. Petitioner contends that he was not
domiciled in Utah.
5. Petitioner resided in Utah and had his own
business here until late XXXXX. Petitioner also owned four Utah properties at
the time.
6. In XXXXX, Petitioner obtained a post office
box and enlisted the help of a friend, XXXXX, to check his mail and pay his
bills for him as he left the state in early XXXXX and went to Arizona.
7. Three of the four properties Petitioner
owned fell into foreclosure in XXXXX. The last property went into foreclosure
in XXXXX.
8. Petitioner testified he took all of his
belongings and leased an apartment in XXXXX, Arizona upon arrival. He managed to open a XXXXX store by XXXXX
which he left to another individual to manage while he began traveling the
country selling XXXXX.
9. Petitioner closed the XXXXX store shortly
after it opened.
10. By XXXXX, XXXXX, Petitioner had moved to
XXXXX where he began a XXXXX distribution business. At this same time, he entered a partnership with a friend in Utah
and opened a XXXXX store in XXXXX.
Petitioner, however, remained in Colorado in an apartment and spent a great
deal of time as a traveling businessman.
11. Like the Arizona store, the XXXXX store soon
folded.
12. In XXXXX, Petitioner left Colorado and moved
on to Washington and California.
Petitioner then lived a full-time life of traveling to various home
shows and fairs across the nation, selling XXXXX on behalf of distributors.
13. Petitioner testified that he received his
business mail at the shows he was participating in or at campgrounds he was
staying at.
14. Since the time Petitioner left Colorado,
Petitioner claims that he is not a resident of any one state. When Petitioner is not working shows, he
states he vacations in Mexico.
15. XXXXX testified that she did take care of
Petitioner's bills and mail on a regular basis. She stated that Petitioner would call her on a weekly basis to
check-in and give her a forwarding address.
16. During the years in question, Petitioner
registered his one vehicle in Utah. He
testified that Utah granted him a waiver of the emissions and safety tests as
the vehicle was located outside of Utah during this time.
17. Petitioner maintained a Utah driver's
license during the years in question.
18. Petitioner employed accountants and
maintained banking accounts in Utah during the years in question. Likewise, Petitioner opened other bank
accounts in Arizona and Colorado.
19. Petitioner thinks he filed a XXXXX state
personal income tax return in Arizona, however, he did not submit any proof.
20. Petitioner thinks he filed a XXXXX state
personal income tax return in Colorado, however, he did not submit any proof.
21. In XXXXX, Petitioner filed an extension
request dated XXXXX with the state of Utah on his XXXXX state personal income
tax return. Petitioner did not later
file a XXXXX return.
22. Petitioner filed a XXXXX federal income tax
return listing a Utah post office box as his present address.
23. Petitioner filed a XXXXX federal income tax
return listing a Utah street address as his present address. Petitioner explained that this was a
friend's address.
24. Petitioner explained that he maintained a
Utah driver's license, Utah vehicle registration, and Utah post office box
during the years in question as he needed to have a license, registration, and
mail delivery somewhere and that Utah was convenient.
25. He further explained that his stays in
Arizona and Colorado were a temporary situation.
26. Petitioner argues that when he left Utah in
XXXXX he never intended to return and that he claims no state as a home state
or domicile.
27. Respondent, on the other hand, contends that
Petitioner has not shown that he has abandoned the state of Utah nor has he
shown the intent and establishment of a new domicile elsewhere.
CONCLUSIONS OF LAW
The
definition of "domicile" is found in Utah Administrative Rule
R865-9I-2(D):
"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.
The
determination of where a person is domiciled for income tax purposes is based
squarely upon the facts presented. Snelqrove
v. Oklahoma Tax Commission, 605 P.2d. 1315, 1317 (1979).
Further,
a person cannot be without a legal domicile somewhere. Desmare v. U.S.,
93 U.S. 959, 960 (1877).
DECISION AND ORDER
It
is clear from the evidence presented that Petitioner continued contacts with
the state of Utah even after physically leaving the state. In his own words, Petitioner left for
Arizona and Colorado on a temporary basis.
That is not to say that he intended at all times to return to Utah
permanently, but that he did not take steps to sever ties with Utah and to
establish a new domicile elsewhere.
Petitioner
continued his vehicle registrations, carried a Utah driver's license, owned
Utah property, maintained a post office box and provided Utah addresses to the
I.R.S. for the years in question. Even
Petitioner cannot point to any other state that he could designate as a state
of domicile.
Based
upon the foregoing, the Tax Commission finds that Petitioner was domiciled in
the state of Utah for the years XXXXX and XXXXX. It is so ordered.
DATED
this 21st day of May, 1993.
BY ORDER OF THE UTAH STATE TAX COMMISSION.
ABSENT
R. H. Hansen Roger
O. Tew
Chairman Commissioner
Joe B. Pacheco S.
Blaine Willes
Commissioner Commissioner