96-0851

INCOME

SIGNED 10/27/97

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

BYRON C & HELEN L MOCK, )

Petitioners, ) ORDER

v. ) Appeal No. 96-0851

AUDITING DIVISION OF THE ) Account No. #####

UTAH STATE TAX COMMISSION, :

STATE OF UTAH, )

Respondent. ) Tax Type: Income Tax

_____________________________________

STATEMENT OF CASE

This matter came before the Utah State Tax Commission for an Initial Hearing pursuant to the provisions of Utah Code Ann. '59-1-502.5, on October 8, 1997. Gail S. Reich, Administrative Law Judge, heard the matter for and on behalf of the Commission. Present and representing Petitioners was PETITIONER. Present and representing Respondent Mr. Gale Frances, Assistant Attorney General.

This appeal involves tax, penalty and interest imposed for 1989, 1990, 1992, 1993 and 1994. The issue in this case is whether PETITIONER was domiciled in Utah during the years at issue and his income subject to Utah income tax. None of his income was reported and no state tax was paid on his income for the years in issue. Petitioners= position is that no filing was required since PETITIONER moved to Nevada to work in 1988 and has maintained residency there. Petitioner moved to Nevada in 1988 and bought a mobile home. At one point, PETITIONER went to Nevada to live with her husband but that did not work and she returned home. PETITIONER has remained in the family home in Utah with her two sons. During the time she was in Nevada, their daughter continued to live in the Utah home. Petitioners have always used the Utah address to file their joint federal tax returns, even during 1988 when both were residing in Nevada. Throughout the time in issue the Petitioners have used the Utah address and Utah banks to conduct their financial affairs. Their son has always been in Utah elementary schools. PETITIONER does not spend more than 125 days in Utah according to PETITIONER testimony. The home in Utah is owned in joint tenancy and the Petitioners maintain Utah driver=s licenses. PETITIONER has never had a Nevada driver=s license although he has been required to register two of his vehicles in Nevada since he spends a good portion of his time there. Petitioners also maintain vehicles registered to the Utah address. In 1993 PETITIONER obtained a resident deer rifle tag in Utah and in 1994 he obtained a resident fishing license. PETITIONER indicated that her husband returns home during his regular seven day and three day off periods each month in addition to family vacations.

Utah Code imposes an obligation to pay state income tax on an individual who is domiciled in Utah. The place where a married man=s family resides is generally deemed his domicile. One can abandon one=s domicile, but to do so one must show both actual residence in a new locality and intent to remain there permanently having abandoned the old domicile. Absence from one=s domicile because of work or employment does not necessarily bring about a

change of domicle.

DECISION AND ORDER

After a thorough review of the entire matter and consideration being given to all of the issues raised by each of the parties, the Tax Commission has determined that the circumstances surrounding the instant case do not show an abandonment of Utah as PETITIONER domicile and that the tax, penalty and interest were properly imposed. It is so ordered.

This decision does not limit a party's right to a Formal Hearing. However, this Decision and Order will become the Final Decision and Order of the Commission unless any party to this case files a written request within thirty (30) days of the date of this decision to proceed to a Formal Hearing. Such a request shall be mailed to the address listed below and must include the Petitioner's name, address, and appeal number:

Utah State Tax Commission

Appeals Division

210 North 1950 West

Salt Lake City, Utah 84134

Failure to request a Formal Hearing will preclude any further appeal rights in this matter.

DATED this 27 day of OCTOBER, 1997.

BY ORDER OF THE UTAH STATE TAX COMMISSION.

W. Val Oveson Richard B. McKeown

Chairman Commissioner