Acklie v. Nebraska Dept. of Rev. , 313 Neb. 28 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/09/2022 09:04 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28Phyllis Acklie, individually and as Personal
Representative of the Estate of Duane Acklie,
deceased, appellant, v. Nebraska Department
of Revenue, a Nebraska administrative
agency, and Tony Fulton, in his capacity
as the State Tax Commissioner for the
State of Nebraska, appellees.
___ N.W.2d ___
Filed December 9, 2022. No. S-21-985.
1. Administrative Law: Judgments: Appeal and Error. In an appeal
under the Administrative Procedure Act, an appellate court may reverse,
vacate, or modify the judgment of the district court for errors appearing
on the record.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Words and Phrases. A decision is arbitrary when
it is made in disregard of the facts or circumstances and without some
basis which would lead a reasonable person to the same conclusion.
4. Words and Phrases. A capricious decision is one guided by fancy
rather than by judgment or settled purpose.
5. ____. The term “unreasonable” can be applied to a decision only if the
evidence presented leaves no room for dif­ferences of opinion among
reasonable minds.
6. Domicile: Intent. To acquire a domicile by choice, there must be both
(1) residence through bodily presence in the new locality and (2) an
intention to remain there.
7. Domicile. All of the surrounding circumstances and the conduct of
the person must be taken into consideration to determine his or her
domicile.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 288. Domicile: Intent. To change domicile, there must be an intention to
abandon the old domicile.
9. ____: ____. To establish a new domicile, the present intention must be
to remain indefinitely at a location or site or to make a location or site
the person’s permanent or fixed home.
10. Judgments: Appeal and Error. In conducting a review for errors
appearing on the record, an appellate court will not substitute its factual
findings for those of the district court where competent evidence sup-
ports those findings.
11. Intent: Proof: Circumstantial Evidence. Intent is a question of fact,
which may be determined by circumstantial evidence.
12. Domicile. Domicile depends upon no one fact or combination of cir-
cumstances, but from the whole taken together, it must be determined in
each particular case.
13. Domicile: Presumptions. Where facts are conflicting or where there
is any reasonable doubt, the presumption is in favor of an original, or
former, domicile, as against an acquired one.
14. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and L. Jay Bartel for
appellees.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Marsh, District Judge.
Cassel, J.
INTRODUCTION
The primary issue in this Administrative Procedure Act
appeal is whether the taxpayers proved that they abandoned
their domicile in Nebraska and acquired a domicile in Florida.
The Tax Commissioner and the district court concluded that
the taxpayers failed to meet their burden of proof. Because
competent evidence supported the district court’s factual
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28findings and its decision conformed to the law, we affirm
its judgment.
BACKGROUND
This appeal involves the Nebraska income tax returns of
Duane Acklie and Phyllis Acklie for the period beginning on
January 1, 2010, and continuing through December 31, 2014
(the audit period). In other words, the audit period covered five
calendar-year tax years: 2010, 2011, 2012, 2013, and 2014.
The Acklies were married at all times during the audit period
and filed income tax returns as married filing jointly.
The Acklies filed Nebraska income tax returns as residents
of Nebraska for tax years prior to 2008. But for tax years 2008
through 2014, the Acklies filed Nebraska income tax returns
claiming status as nonresidents of Nebraska. The Nebraska
Department of Revenue (Department) did not audit the Acklies
for the 2008 or 2009 tax years, and no adjustments were made
to those returns.
Department Proceedings
The Department sent the Acklies notices of proposed defi-
ciency determinations for each tax year of the audit period.
The notices all stated that the Acklies “are Nebraska residents.”
Some of the notices added that the Acklies “maintained a per-
manent place of abode,” while others cited the statute defining
“[r]esident individual.” 1
The Acklies filed petitions for a redetermination. They pro-
tested the entire amount of the tax, interest, and penalties pro-
posed by the Department for each of the tax years. The Acklies
claimed that they were not domiciled in Nebraska during the
relevant years and that they did not spend more than 6 months
in Nebraska.
A hearing officer for the Department conducted a hearing on
behalf of the Tax Commissioner. For purposes of the hearing,
1
Neb. Rev. Stat. § 77-2714.01(7) (Reissue 2018).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28the parties stipulated to a number of facts. They also stipulated
to the amount of tax owed if both of the Acklies were Nebraska
residents for the entire audit period and to the Acklies’ hav-
ing no tax due if they were not residents of the state. In this
opinion, we have omitted the property valuations shown in
the record.
The evidence established that each of the Acklies was
born in Nebraska in the 1930s. In 1971, the Acklies acquired
Crete Carrier Corporation—a large trucking company based
in Lincoln, Nebraska. During the audit period, the Acklies
each possessed approximately a 1-percent ownership interest
in Crete Carrier Corporation. Also during the audit period,
each of the Acklies served as a director of the corporation and
received compensation. During the 2010 to 2012 tax years, the
corporation listed the Acklies as salaried Nebraska employ-
ees for purposes of filings with the Department in order to
meet requirements to qualify for a “Nebraska Tax Incentive
Program LB 775.” For purposes of the incentive program, the
Department determined that the Acklies were nonresidents for
the fiscal years September 30, 2008, through September 30,
2012. This determination was based in part on the Acklies’ fil-
ing “a Form 12N, which is the Nebraska nonresident income
tax agreement.”
Each of the Acklies owned a residence in Lincoln during
the entirety of the audit period. They used the residence owned
by Phyllis for residential purposes when they were in Lincoln.
The Acklies did not use the residence owned by Duane for
personal residential purposes; instead, they made it available to
others for recreational use.
The parties owned several investment properties in
Lancaster County, Nebraska, which they leased for payments
of cash rent. In 2011, Phyllis purchased a 516.75-acre farm.
In 2012, she purchased a 135.93-acre farm. The Acklies
owned a 25.03-acre commercial property until they trans-
ferred it to Crete Carrier Corporation in December 2013 as
part of a like-kind exchange for property in Madison County,
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28Nebraska. While the Acklies owned the property, they held
it for investment purposes and leased the property to Crete
Carrier Corporation in exchange for payments of cash rent.
The Acklies owned 10 farm properties in Madison County.
They held the properties for investment purposes and leased
them to third-party tenants in exchange for payments of cash
rent. The property tax statements for the properties were mailed
to a post office box in Lincoln.
The Acklies owned property in other states, too. In 1993,
they purchased a residence in Colorado, which they used for
residential purposes. In 1997, the Acklies purchased a resi-
dence in Florida, which they used for residential purposes. The
Acklies acquired two farm properties in Minnesota during the
audit period. They held the properties for investment purposes
and leased them to third-party tenants in exchange for payments
of cash rent. The property tax statements for the Minnesota
properties were mailed to a post office box in Lincoln.
In 2008, the Acklies took a number of important actions in
Florida. They moved “additional personal property” from their
residence in Nebraska to their residence in Florida, though
the record reveals no further information about the contents
of this property. They obtained Florida driver’s licenses. They
registered vehicles in their names. They registered to vote and
exercised the right to vote in Florida elections. Phyllis com-
pleted paperwork and was approved to obtain a Florida home-
stead exemption for the Florida residence. In the proof-of-
residence section of the application, Phyllis stated that she
“last became a permanent resident of Florida” on December
25, 2007. Phyllis’ signature on the application appeared
beneath a statement in which she declared, under penalties of
perjury, that she was a permanent resident of Florida.
The Acklies had other ties to Florida. They became mem-
bers of various organizations based in Florida, including a
church and a country club. They maintained personal bank
accounts with a bank in Florida and had statements mailed
to their Florida residence. They established professional and
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28business relationships in Florida during the relevant period,
including a relationship with an attorney. In 2012, the Acklies
obtained updated passports, which identified them as resi-
dents of Florida. If called to testify, Phyllis would testify that
the Acklies intended to change their domicile from Nebraska
to Florida.
The Acklies retained connections to Nebraska. Their two
living daughters resided in Lincoln. During the audit period,
they maintained a senior golf membership at a country club in
Lincoln. The Acklies had vehicles, a jet ski, a boat, and a boat
trailer registered in Nebraska. During the audit period, Duane
made 44 political contributions (approximately 15 percent of
the total dollar amount of political contributions) to Nebraska
entities or candidates where the receipt listed a Nebraska
address, 5 contributions (approximately 5 percent) to national
political entities where the receipt listed his Florida address,
and 34 contributions (approximately 80 percent) to national
political entities or to entities or candidates outside Nebraska
and Florida where the receipt listed a Nebraska address.
Political contributions by Phyllis all listed her Nebraska resi-
dence on the receipt. The Acklies also served as directors,
honorary board members, or trustees for several Nebraska
entities during the audit period. Some of these positions paid
director fees. In 2015, an entity named Duane “Nebraskan of
the Year,” though there was no requirement that the recipi-
ent be a current resident of Nebraska in order to receive
the award.
In 2010, Duane executed a will in Nebraska that was pre-
pared by a law firm in Nebraska. In 2013, Duane executed in
Florida a codicil to his will; the codicil stated that he was “now
of Collier County, Florida.” In the codicil, Duane “revoke[d]
and delete[d] all references to Nebraska and the laws of that
state and insert[ed] in lieu thereof references to Florida and
the laws of that state.” Duane died in 2016. His remains were
interred in a Nebraska cemetery. His obituary was published in
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28newspapers in Nebraska and Florida. In 2017, Phyllis filed a
petition for determination of inheritance tax and an inheritance
tax worksheet in Madison County. The petition and worksheet
reported Duane’s domicile as being in Florida.
The parties stipulated that the Department issued a Nebraska
Individual Income Tax Booklet for each year in the audit
period. The booklets for 2010, 2011, and 2012 defined “[r]esi-
dent” as “[a]n individual who is domiciled in Nebraska or
who maintained a permanent place of abode and resided in
Nebraska for six months or more during [the tax year].” The
booklets for 2013—published in January 2014—and 2014—
published in January 2015—expanded the definition of “resi-
dent,” which included language stating:
If an individual maintains a permanent place of abode in
Nebraska and is present in Nebraska for at least 183 days
during the tax year, that individual is a Nebraska resident
even if living in another state. For this purpose, Nebraska
considers any part of a day spent in Nebraska as a full day
spent in the state.
The hearing officer received a “Location Summary” for each
of the Acklies during each year of the audit period. The summa-
ries displayed their travels and tracked days outside Nebraska
and Florida, full days in Florida, partial days in Nebraska, and
full days in Nebraska. The summaries showed that the Acklies
traveled extensively. The partial days in Nebraska represented
arrivals and departures; some partial days included being in
Nebraska for as little as 2 hours. The Acklies would often
arrive in Omaha, Nebraska, in the afternoon or evening and
depart from Omaha in the morning.
Tax Commissioner’s Determination
The Tax Commissioner entered a 23-page order denying the
Acklies’ petitions for redetermination. The Tax Commissioner
observed that several actions favored the Acklies’ intention-
ally changing their domicile to Florida, but that other actions
favored retaining Nebraska as a domicile.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28The Tax Commissioner wrote extensively on the rel-
ative amount of time spent in each jurisdiction. The Tax
Commissioner concluded that the Acklies spent over 6 months
per year in Nebraska when partial days in the state were
included. The Tax Commissioner recognized that was not true
in 2014, “where it was close, but not sufficient to pass the
second test for residency,” but stated that the factors for the
domicile test established residency status for 2014.
District Court Proceedings
Phyllis, individually and as personal representative of
Duane’s estate, filed a petition for review in the district court.
Her actions in these capacities will also be referenced as
actions by the Acklies. The Acklies alleged that the Department
improperly determined for the audit period that they (1) were
domiciled in Nebraska, (2) spent in the aggregate more than 6
months of the taxable year in Nebraska, (3) were required to
report and pay individual income tax as Nebraska residents,
and (4) should be assessed penalties.
District Court’s Judgment
The district court determined that the Acklies were residents
of Nebraska during the audit period, because they were domi-
ciled in Nebraska in each of those years. The court emphasized
the alternative language of § 77-2714.01(7) defining a resident
individual: “an individual who is domiciled in Nebraska or
who maintains a permanent place of abode in this state
and spends in the aggregate more than six months of the
taxable year in this state.” (Emphasis in original.) The court
stated that tables for Duane and Phyllis showing their respec-
tive days outside Florida and Nebraska, full days in Florida,
partial days in Nebraska, and full days in Nebraska for each
of the relevant tax years “clearly show that Duane and Phyllis
spent considerably more time in Nebraska than in Florida for
each year of the [a]udit [p]eriod, when counting partial days
in Nebraska.”
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28The court found that the Acklies failed to meet their bur-
den of proof to show, for each relevant tax year, that they
had the present intention to abandon their Nebraska domicile
and remain indefinitely in Florida. It determined that evi-
dence to support the Acklies’ assertion that they established
a new domicile in Florida in 2008 was outweighed by sub-
stantial evidence of conduct during the audit period that was
inconsistent with an intention to abandon Nebraska as their
domicile. The court pointed to the Acklies’ maintaining two
residences in Nebraska, registering vehicles and watercraft
in Nebraska, being listed as salaried Nebraska employees
located in the Crete Carrier Corporation office in filings with
the Department, maintaining vast real estate investment hold-
ings in Nebraska for which they received taxable income,
having property tax statements for those properties mailed to
addresses in Lincoln, and spending considerably more time in
Nebraska than in Florida.
Alternatively, the court found that the Acklies were resi-
dents of Nebraska for the audit period, because they main-
tained a permanent place of abode in Nebraska and spent an
aggregate of more than 6 months in Nebraska in each of those
years. The court recognized the Acklies’ disagreement with the
Department’s interpretation of 6 months as being equivalent
to 183 days. It stated that the Acklies cited no legal authority
to support their “‘fractional month’ approach to determin-
ing residency,” while the Department cited to 18 states that
“‘use spending more than 183 days in the state as a basis for
determining statutory residency.’” The court stated it would
give the Department’s interpretation deference because the
interpretation comported with the plain and ordinary mean-
ing of the regulatory language and was not inconsistent or
plainly erroneous. As to the Acklies’ disagreement with the
Department’s position that any part of a day in Nebraska was
considered a full day in Nebraska, the court stated that the
issue was resolved by Neb. Rev. Stat. § 77-2714 (Reissue
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 282018) and I.R.C. § 7701(b)(7)(A) (2018). Using that inter-
pretation, Duane and Phyllis each spent over 183 days in
Nebraska in the 2010 to 2013 tax years; they did not do so
in 2014.
The court found that the Acklies were each a resident of
Nebraska for each year of the audit period, because each was
domiciled in Nebraska during those years. Alternatively, it
found that the Acklies were each residents of Nebraska for
the taxable years 2010, 2011, 2012, and 2013 because they
maintained a permanent place of abode and were present in
Nebraska for an aggregate of more than 6 months during each
of those years. Thus, the court found that the Acklies were lia-
ble for all unpaid taxes due and owing, together with interest,
in the amounts previously stipulated to by the parties. With
respect to the imposition of penalties, the court stated that the
Acklies did not present the issue to the Tax Commissioner,
but that they did present the issue to the court in their petition
for review. Under Neb. Rev. Stat. § 84-917(5)(b)(i) (Cum.
Supp. 2022), the court remanded the matter to the Department
for resolution of whether penalties should be assessed on the
taxes owed by the Acklies.
The Acklies appealed, and we moved the case to our
docket. 2
ASSIGNMENTS OF ERROR
The Acklies assign that the district court erred (1) in deter-
mining that they were domiciled in Nebraska during the audit
period, (2) in determining that they both maintained a perma-
nent place of abode in Nebraska and spent in the aggregate
more than 6 months in Nebraska in 2010 through 2013, (3)
in determining that they were both resident individuals of
Nebraska during the audit period, and (4) in affirming the
deficiencies in income tax asserted by the Department for the
audit period.
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28STANDARD OF REVIEW
[1,2] In an appeal under the Administrative Procedure Act,
an appellate court may reverse, vacate, or modify the judgment
of the district court for errors appearing on the record. 3 When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. 4
[3-5] A decision is arbitrary when it is made in disregard of
the facts or circumstances and without some basis which would
lead a reasonable person to the same conclusion. 5 A capricious
decision is one guided by fancy rather than by judgment or
settled purpose. 6 The term “unreasonable” can be applied to a
decision only if the evidence presented leaves no room for dif-
ferences of opinion among reasonable minds. 7
ANALYSIS
For Nebraska income tax purposes, a “[r]esident individual”
is “an individual who is domiciled in Nebraska or who main-
tains a permanent place of abode in this state and spends in
the aggregate more than six months of the taxable year in this
state.” 8 Both parties focus on this definition.
As the district court emphasized, a person can fall within
the definition of resident individual in two ways. One way
is to be domiciled in Nebraska. The other is to maintain
a permanent place of abode in Nebraska and spend in the
3
Houghton v. Nebraska Dept. of Rev., 308 Neb. 188, 953 N.W.2d 237(2021).
4
Id.5
Gelco Fleet Trust v. Nebraska Dept. of Rev., 312 Neb. 49, 978 N.W.2d 12(2022).
6
Id.7
Id.8
§ 77-2714.01(7).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28aggregate more than 6 months of the year in Nebraska. We
start with domicile.
Domicile
The Acklies argue that they changed their domicile to
Florida in 2008 and that thus, they were domiciled there dur-
ing each year of the audit period. They contend that the court
erred by essentially determining that abandonment of their
Nebraska domicile required severance of all significant ties to
Nebraska. We disagree.
[6-9] The requirements to establish and change a domicile
are settled. To acquire a domicile by choice, there must be
both (1) residence through bodily presence in the new locality
and (2) an intention to remain there. 9 All of the surrounding
circumstances and the conduct of the person must be taken into
consideration to determine his or her domicile. 10 To change
domicile, there must be an intention to abandon the old domi-
cile. 11 To establish a new domicile, the present intention must
be to remain indefinitely at a location or site or to make a loca-
tion or site the person’s permanent or fixed home. 12
In terms of individual income tax, a regulation provides
additional guidance on domicile. The regulation states:
The question of domicile is a question of fact rather
than law, frequently depending upon a variety of circum-
stances. The term domicile shall mean the place where an
individual has his or her true, fixed, and permanent home
and principal establishment, and to which whenever he
or she is absent he or she has the intention of returning.
Actual residence is not necessarily domicile. 13
9
Houghton v. Nebraska Dept. of Rev., supra note 3.
10
Id.
11
Id.
12
Id.
13
316 Neb. Admin. Code, ch. 22, § 001.03 (2009).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28The burden of proof to show a change of domicile rested
with the Acklies. 14 Both the Tax Commissioner and the district
court determined that the Acklies failed to meet their burden
of proof.
[10] Our standard of review is key. We are not entitled to
weigh evidence or decide issues anew. Rather, our review
focuses on whether the district court’s decision is supported
by competent evidence, whether it conforms to the law, and
whether it is neither arbitrary, capricious, nor unreasonable. 15
In conducting a review for errors appearing on the record, we
will not substitute our factual findings for those of the district
court where competent evidence supports those findings. 16
[11] Whether the Acklies changed their domicile revolves
around their intent. Intent is a question of fact, which may be
determined by circumstantial evidence. 17 The parties agreed
that Phyllis would testify that the Acklies intended to change
their domicile from Nebraska to Florida. However, we bear in
mind that “‘any self-serving declaration . . . may frequently
lack persuasiveness or even be contradicted or negatived by
other declarations and inconsistent acts.’” 18
The district court based its decision on the Acklies’ conduct
during the audit period that was inconsistent with an inten-
tion to abandon Nebraska as their domicile. The court found
that this evidence outweighed evidence supporting a Florida
domicile.
The Acklies assert that they are not asking us to reweigh
factual findings of the court. But by asserting that “there are
some facts that carry particular weight,” 19 they are essentially
challenging the district court’s weighing of the evidence.
14
See Neb. Rev. Stat. § 77-2781 (Reissue 2018).
15
See Houghton v. Nebraska Dept. of Rev., supra note 3.
16
See id.
17
Id.
18
Id. at 197, 953 N.W.2d at 244.
19
Brief for appellant at 16.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28As the Acklies recognize, we stated in State v. Jensen 20 that
“[o]ne fact of particular significance in ascertaining a person’s
domicile is the act of registering and voting.” We quoted an
earlier decision explaining as follows: “‘In doubtful cases par-
ticular significance should be attached to the repeated exercise
of the right to vote, because this right depends upon citizen-
ship and domicile, and must be generally, if not universally,
supported by the oath of the voter. . . .’” 21
Thus, the Acklies highlight that when they registered to vote
in Florida in 2008 and when they exercised that right, they
swore that they were permanent residents of Florida. 22 They
also direct our attention to other actions supported by an oath
or sworn statement: Phyllis swore that she was a permanent
resident of Florida when the Acklies applied for a homestead
exemption in 2008, and Phyllis filed a petition for determina-
tion of inheritance tax in Nebraska in 2017 which reported
Duane’s domicile as being in Florida.
[12] But the Jensen decision also reiterated that domicile
“depends upon no one fact or combination of circumstances,
but from the whole taken together, it must be determined in
each particular case.” 23 Thus, the items the Acklies highlight
do not control.
[13] Further insight is garnered from a legal encyclopedia.
It cautions that “[a] fact of controlling importance in one case
may have only slight significance in relation to all the facts
of another . . . .” 24 It adds that “[w]here facts are conflicting
or where there is any reasonable doubt, the presumption is in
20
State v. Jensen, 269 Neb. 213, 218, 691 N.W.2d 139, 144 (2005).
21
Id. at 218-19, 691 N.W.2d at 144, quoting In re Estate of Meyers, 137 Neb.
60, 288 N.W. 35 (1939).
22
See, Fla. Const. art. VI, §§ 2 and 3; Fla. Stat. Ann. §§ 97.041(1)(a) and
97.051 (West 2017).
23
State v. Jensen, supra note 20, 269 Neb. at 218, 691 N.W.2d at 144.
24
28 C.J.S. Domicile § 52 at 104 (2019).
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28favor of an original, or former, domicile, as against an acquired
one . . . .” 25
With regard to the relative amount of time spent in each
jurisdiction, the district court quoted from our decision involv-
ing a quo warranto action. 26 In that case, the defendant was
elected a county commissioner for Cherry County, Nebraska.
At that time and for 2 years after, she lived in Cherry County
with her husband on a rented ranch. The defendant and her
husband owned a residence in Grant County, Nebraska, and
in previous years, the defendant lived in that county with her
children. After the defendant and her husband lost their lease
on the Cherry County residence, the defendant changed her
residence to an apartment in Cherry County, while her hus-
band moved to their Grant County residence. The defendant
changed her registration for voting to the Cherry County
apartment. In determining the defendant’s domicile, this court
discussed several surrounding circumstances. We stated that
her bodily presence was nearly equal between the two coun-
ties and that her act of changing her voting registration “is an
act indicating her intention to be domiciled in Cherry County,
but is not conclusive.” 27 We noted that she told others her
residence was in Grant County, that she did not register her
vehicles in the precinct of her Cherry County apartment, and
that she submitted claims for mileage from her Grant County
residence to Cherry County. We reasoned that “[h]er returning
to her husband’s Grant County residence during the times that
her business activities did not require her presence in Cherry
County are also indicative of her intention not to abandon her
husband’s domicile.” 28
25
Id., § 46 at 98.
26
State v. Jones, 202 Neb. 488, 275 N.W.2d 851 (1979).
27
Id. at 492, 275 N.W.2d at 854.
28
Id. at 492-93, 275 N.W.2d at 854.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28Here, too, the amount of time the Acklies spent in each
state is a factor for consideration. The court found that each
of the Acklies “spent considerably more time in Nebraska
than in Florida for each year of the [a]udit [p]eriod, when
counting partial days in Nebraska.” Even comparing full
days spent in each state, the days in Nebraska exceeded the
days in Florida each year. But more importantly, the loca-
tion summaries for each year tend to show that Lincoln was
a “home base” for both Duane and Phyllis—it was the place
from where they departed and to where they returned most
frequently in connection with their travels. This remained true
for each tax year of the audit period except 2014.
The district court’s factual findings are supported by com-
petent evidence. As the court observed, some facts supported
finding a Nebraska domicile, while others supported a Florida
domicile. Being mindful that the evidence and inferences as to
domicile were conflicting, that there is a presumption against
a change of domicile in such a situation, that the burden of
proof rested on the Acklies, and that we do not reweigh facts,
we do not find any errors appearing on the record.
Aggregate of More
Than 6 Months
[14] The Acklies also challenge the district court’s determi-
nation that they spent in the aggregate more than 6 months of
the year in Nebraska for tax years 2010, 2011, 2012, and 2013.
This argument pertains to the other way that a person can fall
within the definition of a resident individual. But because we
have already found that the Acklies fit within that definition
based on domicile, we need not determine whether they also
met the alternative test. An appellate court is not obligated to
engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 29
29
Choice Homes v. Donner, 311 Neb. 835, 976 N.W.2d 187 (2022).
- 44 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
ACKLIE V. NEBRASKA DEPT. OF REV.
Cite as 313 Neb. 28CONCLUSION
The district court’s decision that both Duane and Phyllis
failed to prove they changed their domicile from Nebraska to
Florida for any of the tax years within the audit period con-
forms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable. Having found
no errors appearing on the record, we affirm the judgment of
the district court.
Affirmed.
Heavican, C.J., not participating.