Taxpayer Must Prove Change Of Domicile

more+
less-

The Pennsylvania Supreme Court affirmed per curiam a decision that the burden of proving a change of domicile is on the person claiming the change. Hvizdak v. Commonwealth, 92 MAP 2012 (Pa. June 17, 2013) (per curiam), aff’g 50 A.3d 788, (Pa. Commw. 2012). The taxpayer maintained a permanent place of abode in Florida and Pennsylvania. During the entire 2004 tax year, the taxpayer was married, although separated, and his wife and minor children resided in Pennsylvania. The taxpayer provided all of the support for his wife and had joint custody of both children. The taxpayer obtained a Florida driver’s license and registered to vote in Florida during the 2004 tax year. During this time period, the taxpayer worshipped regularly and participated in various social organizations and events in Florida. The taxpayer was listed in the Florida telephone directory as maintaining his residence there and listed a Pennsylvania address as his business address. During this same time period, the taxpayer received mail at his Florida residence and at his business office in Pennsylvania. The taxpayer argued that he was not domiciled in Pennsylvania in 2004 and did not spend more than 183 days in Pennsylvania and therefore should not be considered a Pennsylvania resident for tax purposes.

The Commonwealth Court had noted that “domicile” means “[t]he place which an individual intends to be his permanent home and to which he intends to return whenever he may be absent.” 61 Pa. Code § 101.1. However, the court observed that our Supreme Court has held that domicile of choice may not be attained by intentions alone. Dorrance’s Estate, 163 A. 303, 309 (Pa. 1932). Changing domicile must also be shown by one’s conduct. Id. The court further noted that the burden of proving a change in domicile is on the person making such allegation. In re Nominating Petition of Prendergast, 673 A.2d 324, 327-328(Pa. 1996).

Citing Dorrance, the court indicated that the intent to acquire domicile is the intent to make a home in fact, and not an intention to acquire a domicile. Because the taxpayer and his wife were married throughout 2004 and both had joint custody of their minor children, the court concluded that the taxpayer in fact retained his home in Pennsylvania. The court noted that evidence was lacking for the taxpayer to prove that he was not in Pennsylvania more than 183 days of the 2004 tax year. Accordingly, with a permanent place of abode in Pennsylvania, the taxpayer was in any event a statutory Pennsylvania resident in 2004.

This Alert was reprinted with permission from the PA Tax Recap, a publication of Pa Legislative Services.