99-0438

INCOME TAX

SIGNED 2/25/01

BEFORE THE UTAH STATE TAX COMMISSION

____________________________________

PETITIONER, )

) ORDER

Petitioner, )

) Appeal No. 99-0438

v. ) Account No. #####

)

AUDITING DIVISION OF ) Tax Type: Income Tax

THE UTAH STATE TAX )

COMMISSION, ) Presiding: Davis

)

Respondent. )

_____________________________________

Presiding:

G. Blaine Davis, Administrative Law Judge

Appearances:

For Petitioner: PETITIONER

For Respondent: Mr. Gale Francis, Assistant Attorney General

Mr. Dan Engh, from the Auditing Division

Ms. Becky McKenzie, from the Auditing Division

STATEMENT OF THE 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 June 1, 2000.

The issue in this proceeding is whether Petitioner was domiciled in the State of Utah for the year 1997. Petitioner contends that he was a resident of STATE during that year, and that he was not a resident of Utah and that the income earned by him was not taxable in Utah.

In order to be with his son, Petitioner moved to Utah in November, 1995. In August, 1996, Petitioner went to work for COMPANY. Petitioner worked in STATE for three months, and did not purchase or rent a residence there. From November, 1996 to August, 1999, Petitioner lived exclusively in the trucks issued to him by his employer, COMPANY and he operated the trucks in all 48 states and STATE. Petitioner spent the entire audit period of 1997 and 1998 on the road for his employer.

COMPANY is headquartered in STATE, but Petitioner's supervisor was located in STATE. Petitioner was based out of COMPANY, where he returned whenever he was taking time off from work. Petitioner's health insurance company was based in STATE.

During 1997 and 1998, Petitioner rented storage units in Utah and STATE. Petitioner maintained a bank account in Utah and he owned a car which was registered in STATE, but was insured in Utah. During that period, the commercial driver's license for Petitioner was issued by the State of Utah.

Petitioner received mail at a Utah post office box throughout 1997 and 1998. Petitioner was registered to vote in Utah during those years, though he did not vote, but he did file a part-year resident income tax return in Utah for 1996 and 1997. Both the federal and state tax returns filed for 1997 and 1998 show a resident address in Utah, and were signed under penalty of perjury. Petitioner maintains that the address was that of his former wife, and was for convenience purposes only to have someplace at which his mail could be sent. The 1997 and 1998 W-2 statements show a Utah address. Petitioner was never a member of any club or organization based in Utah, and has not had a Utah hunting or fishing license.

Petitioner has lived in STATE since August, 1999, and is currently registered to vote in STATE, and his family's burial site is in STATE.

APPLICABLE LAW

A resident individual means an individual who is either domiciled in this state for any period of time during the taxable year, or who is not domiciled in this state but maintains a permanent place of abode in this state and spends in the aggregate 183 or more days of the taxable year in this state. (Utah Code Ann. '59-10-103(1)(j).

"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 Administrative Code, R865-9I-2.D.

A person's intentions are determined by his or her actions, and not be verbal declarations.

DISCUSSION

It is undisputed that Petitioner established a domicile in Utah in 1995 when he moved here to be with his ex-wife and his son, and he continued to be domiciled in this state through at least the middle of 1996. However, his stay in STATE was for a very short duration, following which he was living in the various trucks which he drove, and did not really establish a domicile in any other location. In addition, Petitioner continued to have most of his other contacts with the State of Utah, including using a Utah driver's license, a Utah bank, receiving his mail, including bills and other information in Utah, and being registered to vote in Utah.

Accordingly, the Commission finds that Petitioner never abandoned his domicile in the State of Utah, and furthermore, he never clearly established a domicile in any other state or location.

DECISION AND ORDER

The Commission therefore finds that Petitioner, continued to be domiciled in the State of Utah in 1997 and 1998, and the audit assessment made by Respondent is hereby affirmed. The Petition for Redetermination of Petitioner is hereby denied.

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 25^th day of February , 2001.

____________________________________

G. Blaine Davis

Administrative Law Judge

BY ORDER OF THE UTAH STATE TAX COMMISSION.

The Commission has reviewed this case and the undersigned concur in this decision.

DATED this 25^th day of February , 2001.

Pam Hendrickson R. Bruce Johnson

Commission Chair Commissioner

Palmer DePaulis Marc B. Johnson

Commissioner Commissioner