Dane v. Dept. of Rev. , 21 Or. Tax 15 ( 2012 )

No. 3 August 28, 2012 15
IN THE OREGON TAX COURT
REGULAR DIVISION
Charles W. DANE
and Louise A. Dane,
Plaintiffs,
v.
DEPARTMENT OF REVENUE,
Defendant.
(TC 5000 & 5023)
Plaintiffs (taxpayers) appealed from a Magistrate Division decision ruling
that declared taxpayers’ domicile was in Oregon. Following trial the court found
that based on the record presented at trial, taxpayer’s continuing ties to Oregon
indicated that taxpayer did not abandon his Oregon domicile and establish a new
domicile in Nevada prior to the start of 2007, or at any time during the 2007 or
2008 tax years, and therefore his domicile was in Oregon.
Trial was held September 16, 2011, in the courtroom of
the Oregon Tax Court, Salem.
Charles W. Dane, Plaintiff, argued the cause for Plaintiffs
(taxpayers) pro se.
Darren Weirnick, Assistant Attorney General, Depart-
ment of Justice, Salem, argued the cause for Defendant (the
department).
Decision for Defendant rendered August 28, 2012.
HENRY C. BREITHAUPT, Judge.
I. INTRODUCTION
These cases come before the court for decision fol-
lowing a trial in the Regular Division. Plaintiffs (taxpayers)
appeal from notices of proposed refund adjustments issued
by Defendant Department of Revenue (the department).
Taxpayers argue that Plaintiff Charles W. Dane (Charles)1
1
Opinions and orders of the Oregon Tax Court typically avoid referring to
litigants by their first names. In this instance, however, taxpayers are husband
and wife and share a last name. For purposes of this opinion, the court will refer
to taxpayers by their first names when referring to either taxpayer as an individ-
ual, and as “taxpayers” when referring to the couple collectively.
16 Dane v. Dept. of Rev.
was a nonresident of the state of Oregon during the 2007
and 2008 tax years.
Taxpayers also appealed an adjustment to the
amount of taxpayers’ income that could be deducted from
taxpayers’ income for the 2007 tax year due to expenses
incurred by taxpayer for the maintenance of a house in
Waldport, Oregon, that taxpayer owns and uses in connec-
tion with taxpayers’ property rental business. However, at
trial the department conceded this issue with respect to
2007 only.
II. FACTS
These cases are the most recent in a series of
cases that taxpayers have litigated in this court concern-
ing Charles’ residency status in the tax years following
1999. Information presented by these parties pertaining to
tax years other than 2007 and 2008 is relied upon only to
the extent that (a) it was included in the record for these
Regular Division cases by the parties; and (b) it sheds light
on the issue of taxpayer Charles W. Dane’s residency during
either the 2007 or the 2008 tax years.
Taxpayer Charles W. Dane moved to Oregon in
1948 intending to attend Oregon State University (OSU)
and to remain in Oregon indefinitely. After graduation,
Charles joined the faculty of OSU, first as a professor of
forestry and subsequently teaching several courses related
to business administration. Charles worked as a professor
of business administration at OSU until his retirement in
1994. Taxpayer remained an emeritus professor at OSU at
the time of the trial in this case.
In 1957, Charles married taxpayer Louise A. Dane
(Louise). Taxpayers have two daughters, one of whom
lives in Indiana. Taxpayers’ other daughter, Linda, lives
in Stateline, Nevada, where she has lived since the 1980s.
Taxpayers have four grandchildren, three of whom live with
their mother in Indiana. The fourth grandchild, Kyle, lives
in Nevada with his mother, Linda. Kyle’s father passed away
in December of 2006.
In 1969, taxpayers acquired a 2,200 square foot sin-
gle family house in Corvallis, Oregon. Taxpayers continued
Cite as 21 OTR 15 (2012) 17
to own this house at the time of the trial in this case.
Taxpayers also own several housing units in Waldport,
Oregon, all but one of which they have continuously held as
rental housing from 1968 to the time of the trial in this case.
For much of this time the actual management of taxpayers’
rental properties was left to an outside property manage-
ment firm. This arrangement ceased in September of 2003,
and since that time taxpayers have personally handled the
selection of tenants and collection of rents. Taxpayers also
performed the majority of the maintenance on the rental
units. The one housing unit not held as a rental property
(the 910 Waziyata house) was primarily used by taxpayers
when they visit the coast to attend to the upkeep of the other
units.
In 1993 taxpayers’ daughter Linda was diagnosed
with Multiple Sclerosis (MS). In 1994, Charles took early
retirement from his position at OSU and began spending
a substantial proportion of his time at Linda’s house in
Stateline, Nevada. At Linda’s house Charles had exclusive
use of one bedroom and shared use of the common areas.
At about this time taxpayer also moved some of his per-
sonal possessions—mostly preferred or heirloom furniture,
clothing, and tools—into Linda’s house. Charles claims that
he “gifted” all of the furniture and his personal property
remaining in taxpayers’ house in Corvallis to Louise. There
is, however, no documentation of this “gift” in the record.
In mid-1999 taxpayers learned that Linda was preg-
nant. At about this time, Charles surrendered his Oregon
land surveyor’s license and his Oregon professional engi-
neer’s license. Taxpayer also (a) applied for and obtained a
Nevada driver’s license, (b) surrendered his Oregon driver’s
license, and (c) registered to vote in Nevada. Charles did
not, however, obtain any professional licenses in Nevada.
Charles obtained a library card in Nevada in September
of 2000, and starting in 2003 Charles was registered to
receive health care at a Veteran’s Administration (VA) clinic
in Gardnerville, Nevada. During the 2007 and 2008 tax
years, however, Charles received much of his medical care,
and all of his dental and vision care, from providers located
in either Corvallis or Albany, Oregon.
18 Dane v. Dept. of Rev.
At about the same time that Charles obtained his
Nevada driver’s license, he also registered an automobile in
his name in Nevada. Louise has several automobiles reg-
istered in her name in Oregon, including a work van used
by taxpayers when performing maintenance on their rental
properties in Waldport. In May of 1999 taxpayers owned
one vehicle in Oregon that was registered in both of their
names. Taxpayers sold that vehicle in July of 2000.
Charles has a post office box at the United States Post
Office in Stateline, Nevada.2 Charles receives mail at both
the house in Corvallis and at his post office box in Stateline.
Taxpayers receive all mail pertaining to their rental units
in Waldport at the house in Corvallis because Waldport does
not have street delivery.
Most of the utilities for taxpayers’ house in Corvallis
and for their rental properties in Waldport were in Louise’s
name during 2007 and 2008. Charles paid the electric bill
for Linda’s house in Stateline. Linda, however, paid all other
utilities.
Charles has fairly limited social connections in both
Oregon and Nevada. Charles’ only relative living in Oregon
is his sister-in-law, Louise’s sister, who lives in Oregon City.
Charles is also a member of several Oregon-based social and
charitable organizations, though taxpayers argue that he is
not active with any such organizations and that many of
his memberships are lifetime memberships acquired while
Charles was both living and working in Oregon. In Nevada
Charles is close with his daughter, Linda, and is active in his
grandson Kyle’s upbringing. Charles has few social attach-
ments in Nevada outside of this somewhat limited sphere.
However, in late 2007 Charles was appointed to the Douglas
County, Nevada, Parks and Recreation Commission to serve
a two year term starting in 2008. Charles attended five of
the six meetings of the commission that were actually held
during the year 2008.
2
The United States Postal Service provides residents of Stateline, Nevada,
with free post office boxes for at least part of the year because street delivery is
impracticable during winter conditions.
Cite as 21 OTR 15 (2012) 19
At trial, Charles testified that he spent roughly
175 days in Oregon in 2007 and between 115 and 130 days
in Oregon in 2008. Taxpayers’ rental diaries for the 910
Waziyata house indicate that the house was in use for 116
nights in 2007 and 68 nights in 2008. At trial Charles testi-
fied that he was the primary user of the 910 Waziyata house,
though Louise stayed with him there often as well.
Taxpayers state in their briefing that when he was
in Nevada, Louise was usually there with him. The depart-
ment does not dispute this asserton. The parties have stipu-
lated, however, that Louise was a resident of Oregon during
the 2007 and 2008 tax years.
In July of 2009, taxpayers acquired a house in
Minden, Nevada. Taxpayers assert that at the time of the
purchase taxpayers had been looking to buy real property in
the vicinity of Stateline for some time, but had been deterred
up to that point by high real estate prices.
Taxpayers timely filed an Oregon form 40N—an
individual income tax return for nonresidents—for the 2007
tax year. On this return, taxpayers identified all of their
income as Oregon-source income. Taxpayers’ initial return
also indicated that taxpayer owed a relatively small addi-
tional “tax to pay” on top of the estimated tax payments
made throughout 2007. In August of 2008 taxpayers filed an
amended form 40N. On this amended return taxpayers sig-
nificantly reduced the proportion of their income identified
as Oregon-sourced income on the grounds that Charles was
a resident of Nevada in 2007, and claimed a modest refund.
Likewise, taxpayers timely filed an Oregon form
40N for 2008. Taxpayers’ original 2008 Oregon income tax
return again shows 100 percent of taxpayers’ income as
Oregon-source income and a moderate amount of additional
“tax to pay” in excess of taxpayers’ estimated tax payments
and withholding for 2008. In August of 2009 taxpayers, as
they had done in 2008, filed an amended form 40N showing
a dramatic reduction in the proportion of Oregon-sourced
income. This time, however, claiming a significant refund—
substantially all of taxpayers’ withholding and estimated
tax payments.
20 Dane v. Dept. of Rev.
In both 2008 and 2009—following taxpayers’ filing
of amended Oregon income tax returns for the 2007 and
2008 tax years, respectively—the department issued notices
of proposed refund adjustments, denying taxpayers’ claim
for a refund for 2007 entirely and significantly reducing
taxpayers’ claimed refund for 2008. In each instance tax-
payers requested a conference, and following the conference
the department issued a conference decision upholding the
department’s determinations. In proceedings before the
Magistrate Division, the magistrate concluded that Charles
was an Oregon resident during 2007. Dane v. Dept. of Rev.,
TC-MD No 100440D (Feb 2, 2011). Taxpayers appealed that
decision to the Regular Division. Following taxpayers’ appeal
of the 2007 tax year to the Regular Division, the Judge
of the Oregon Tax Court specially designated taxpayers’
appeal of the 2008 tax year for hearing in the Regular
Division.
III. ISSUE
Initially, these cases presented two issues. In addi-
tion to the conflict over Charles’ domicile outlined in the
facts section above, the department had also disallowed cer-
tain exclusions from gross income claimed by taxpayer in
the 2007 tax year for amounts related to the upkeep of the
910 Waziyata house. At trial the department conceded on
the issue of these upkeep expenses.
Therefore, the only issue before the court is whether
Charles was a resident of Oregon during the 2007 and 2008
tax years.
IV. ANALYSIS
ORS 316.037(1)(a) 3 imposes a “tax * * * on the
entire taxable income of every resident of this state.” ORS
316.037(3) likewise imposes a “tax * * * on the taxable
income of every full-year nonresident that is derived from
sources within this state.”4
3
All references to the Oregon Revised Statutes (ORS) are to the 2007 edition.
4
ORS 316.037(2) likewise imposes a tax “for each taxable year upon the
entire taxable income of every part-year resident” of Oregon. However, neither
the department nor taxpayers argue that Charles could have been a part-year
resident of Oregon, as that term is defined in ORS 316.022(5).
Cite as 21 OTR 15 (2012) 21
ORS 316.027(1) states, in pertinent part:
“(a)     ‘Resident’ or ‘resident of this state’ means:
“(A)   An individual who is domiciled in this state unless
the individual:
“(i)       Maintains no permanent place of abode in this state;
“(ii)    Does maintain a permanent place of abode else-
where; and
“(iii) Spends in the aggregate not more than 30 days in
the taxable year in this state[.]”
The conditions of ORS 316.027(1)(a)(A)(i) to (iii) are conjunc-
tive. That means that the failure of a person domiciled in
Oregon to meet any one of these three conditions makes that
person a resident of Oregon.
A. ORS 316.027(1)(a)(A)(i) to (iii)
The court first turns to ORS 316.027(1)(a)(A)(i) to
(iii). At trial Charles testified that he spent roughly 175 days
in Oregon in 2007 and between 115 and 130 days in Oregon
during 2008. This obviously exceeds the 30 day grace period
provided in ORS 316.027(1)(a)(A)(iii). As a result, Charles
does not meet at least one of the conditions described in
ORS 316.027(1)(a)(A)(i) to (iii). Therefore, this case turns on
whether Charles was domiciled in Oregon during the tax
years 2007 and 2008.
B. Charles’ domicile in 2007 and in 2008
The term “domicile” is not defined in Oregon’s tax
statutes. However, the term is commonly defined as:
“The place at which a person has been physically pres-
ent and that the person regards as home; a person’s true,
fixed, principal, and permanent home, to which that person
intends to return and remain even though currently resid-
ing elsewhere.”
Black’s Law Dictionary 523 (8th ed 1999.) Everyone has
a domicile, and an individual can only have one domicile
at any one time. Zimmerman v. Zimmerman, 175 Or 585,
591, 155 P2d 293 (1945). In order to change domicile, an
individual must (a) intend to abandon that person’s former
22 Dane v. Dept. of Rev.
domicile and acquire a new one; and (b) actually acquire a
new domicile. Davis v. Dept. of Rev., 13 OTR 260, 264 (1995).
The intent to abandon an old domicile and to acquire a new
one must be a present intent. Oberhettinger v. Dept. of Rev.,
4 OTR 62, 64 (1970). That means that it cannot be contin-
gent on some other occurrence or an intention merely to set-
tle in a new place at some uncertain point in the future. Id.The parties have stipulated that when Charles
moved to Oregon in 1948 he intended to remain in Oregon
indefinitely. At that point Charles became an Oregon domi-
ciliary. In order to succeed in taxpayers’ appeal with regard
to the 2007 tax year, taxpayers must show that some time
prior to the start of the 2007 tax year Charles formed a pres-
ent, unequivocal intent to abandon his domicile in Oregon
and then, in fact, acquired a new domicile in Nevada.
Taxpayers must show this by a preponderance of the evi-
dence. ORS 305.427. This means that on the record before
the court taxpayers must show that it is more likely than
not that Charles abandoned his domicile in Oregon and
acquired a new domicile in Nevada prior to the beginning of
2007. In order to prevail as to the 2008 tax year, taxpayers
must make the same showing, but with regard to the begin-
ning of 2008, rather than 2007.
Because an intention to abandon one domicile and
to establish another elsewhere is purely subjective, sim-
ple testimony from an individual as to his or her individ-
ual intent at any given time will not satisfy the burden of
proof. Hudspeth v. Dept. of Rev., 4 OTR 296, 298-99 (1971).
Rather, the court must look at the objective circumstances
surrounding Charles’ activities prior to, during, and—to
some extent—after, the 2007 and 2008 tax years and deter-
mine whether the circumstances surrounding those activi-
ties support taxpayers’ contention that Charles intended to
abandon his domicile in Oregon and establish a new one in
Nevada. Id.In their closing argument, taxpayers point to
Charles’ retirement from his post at OSU in 1994 and his
surrender of his engineering license and land surveying
license in 1999 as evidence of Charles’ abandonment of his
Oregon domicile.
Cite as 21 OTR 15 (2012) 23
The court agrees that Charles’ retirement and
relinquishment of his professional licenses are important
life steps and certainly represent a decision not to pursue
his previous occupations in Oregon. However, the court does
not agree that Charles’ retirement, as such, evidences an
abandonment of Charles’ Oregon domicile. While the record
does support a conclusion that Charles retired from OSU to
spend time caring for Linda, the record also contains state-
ments from Charles that until May of 1999—roughly five
years after his retirement from OSU—Charles continued to
spend roughly 40 percent of his time at the 910 Waziyata
house. This sort of continued, consistent presence in Oregon
after retiring from OSU is inconsistent with the notion that
Charles abandoned his Oregon domicile when he retired
from OSU.
Likewise, while Charles’ surrender of his land sur-
veying and engineering licenses certainly represented an
important step in Charles’s life, Charles surrendered these
licenses only after he had been retired for five years. Further,
it is not clear whether at the time Charles surrendered his
licenses, these licenses were of any practical use to him. In
a document submitted into the record by taxpayers, Charles
states that he had effectively ceased working as an engineer
or as a land surveyor in 1986. Furthermore, while in the same
document Charles states that his professional licenses were
useful in qualifying Charles to give expert testimony, there is
no evidence in the record showing that Charles ever used his
licenses for that purpose—or if he did so, to what extent.
Finally, Charles did not acquire replacement cre-
dentials to work as either an engineer or as a land surveyor
in Nevada, which he might be expected to do if his profes-
sional licenses were still of any use to him. In short, the evi-
dence in the record relating to Charles’ surrender of his pro-
fessional licenses is consistent with the notion that Charles
had retired. Surrendering his licenses to practice his past
professions in Oregon is less evidence of abandoning Oregon
than evidence of abandoning his past professions.
In taxpayers’ favor, Charles’ social ties during the
2007 and 2008 tax years lean somewhat in the direction
of a determination that Charles was domiciled in Nevada.
24 Dane v. Dept. of Rev.
The presence of Linda and Kyle in Nevada is certainly an
important consideration. While the parties have stipulated
that Louise was a resident of Oregon during the 2007 and
2008 tax years, taxpayers argue, and the department does
not dispute, that Louise was usually physically present
wherever Charles was also physically present at any given
point in time—whether this was in Nevada, Oregon, or else-
where. The court therefore does not give the stipulation by
the parties that Louise was a resident of Oregon in 2007 and
2008 any particular weight in determining Charles’ domicile
during those years.5 The court also gives some consideration
to the fact that Charles was registered to vote in Nevada;
was appointed to the Douglas County, Nevada, Parks and
Recreation Commission and appears to have been actively
engaged in the business of that commission.
Taxpayer’s acquisition of a house in Minden,
Nevada, in July of 2009 is also a factor weighing in favor of a
conclusion that Charles had abandoned his Oregon domicile.
However, because taxpayers did not purchase this house
until well into 2009, the court gives this factor no weight
in determining Charles’ intentions in 2007 and only very
little weight in determining Charles’ intentions in 2008. The
record contains statements from both Charles and Louise
to the effect that taxpayers had been looking for a property
to purchase or to acquire by exchange for several years, but
had been discouraged by high real estate prices. The court
has no reason to doubt these assertions, but in the absence
of any evidence showing the extent of taxpayers’ efforts
prior to July of 2009, the court must conclude that prior to
this time taxpayers had only formed an intention to acquire
real property in Nevada at some point in the future when it
would be convenient to do so.
5
The court has in the past determined that it is unlikely that one spouse
would change his or her domicile unless the other spouse did so as well. Davis
v. Dept. of Rev., 13 OTR 260, 264-65 (1995). However, unlikely is not impossible,
and given the subjective nature of domicile it is possible that one spouse might
consider time spent in a new location as a permanent relocation, while the other
might view it only as a temporary sojourn. Who is in the right might only be
knowable in retrospect. In any event, Louise’s physical presence in Nevada while
Charles was also physically present in Nevada distinguishes the cases currently
before the court from cases like Davis where a change of domicile by only one
spouse would have entailed acceptance of indefinite and substantial physical
separation.
Cite as 21 OTR 15 (2012) 25
On direct examination, Louise stated that tax-
payers were primarily in Nevada to help take care of
their grandson, Kyle. This is an understandable—and a
commendable—motivation. Louise’s statement does, how-
ever, imply that but for the need to help take care of Kyle,
taxpayers would still most likely have been spending most of
their time in Oregon, as they did before learning that Linda
was pregnant in 2000. This impression is further supported
by Charles’ statement under cross-examination to the effect
that it was convenient for taxpayers to bring Kyle with them
to Oregon when he was not in school because taxpayers
could care for him while also taking care of their proper-
ties in Oregon. The upshot is that taxpayers were in Nevada
because Kyle was in Nevada; not because of anything partic-
ular about Nevada as such.
In a sense, these statements by Charles and Louise
evidence a contingent intent to establish a new domicile
in Nevada—contingent, that is, on Linda and Kyle being
in Nevada. However, the court understands that given
Linda’s long-time residency in Nevada, taxpayers could
safely assume that Kyle would remain in Nevada. That
distinguishes this case from others, wherein the court has
found against taxpayers on the basis of a contingent intent
to abandon one domicile and to establish another. See, e.g.,
Gorski v. Dept. of Rev., 20 OTR 452 (2012) (intent to aban-
don Oregon domicile and to establish domicile elsewhere
contingent on finding work after completing professional
qualification); Oberhettinger v. Dept. of Rev., 4 OTR 62 (1970)
(intent to abandon Oregon domicile and to establish domi-
cile in District of Columbia contingent on reconciliation with
estranged spouse). The contingency involved here is not fatal
to taxpayers’ case, but it does weigh somewhat against a
finding that Charles intended to abandon his Oregon domi-
cile and to establish a new domicile in Nevada.
Taxpayer’s real property holdings in Oregon—and
more specifically, the manner of Charles’ involvement with
taxpayers’ real estate holdings in Oregon—are the decid-
ing factor in this case. In 2007 and 2008, taxpayers’ real
property holdings consisted of taxpayers’ family home in
Corvallis and of taxpayers’ rental properties in Waldport.
Taxpayers had owned these properties since 1969 and 1968,
26 Dane v. Dept. of Rev.
respectively. Of these properties, taxpayers’ rental prop-
erties constituted the strongest link between Charles and
Oregon during the 2007 and 2008.
In their briefing, taxpayers seek to minimize Charles’
continuing ties to Oregon by emphasizing that Charles’
stays in Oregon during 2007 and 2008 were primarily for
the purpose of maintaining and managing taxpayers’ rental
units in Waldport. In the court’s opinion, Charles’ active role
in managing and maintaining these rental properties actu-
ally tends to strengthen the argument that Charles had not
abandoned his Oregon domicile. Charles’ maintenance and
management duties required him to be physically present in
Oregon for a substantial proportion of each year—including
the years at issue in this case—and further led taxpayers
to set aside the 910 Waziyata house for Charles and Louise
to live in while working at their rental properties. In other
words, taxpayers’ rental properties in Waldport—and more
specifically, Charles’ active role in managing and maintain-
ing these properties—required Charles to maintain a con-
sistent physical presence in Oregon and to set up the infra-
structure necessary to sustain that presence. These facts
weigh heavily against the notion that Charles had aban-
doned his Oregon domicile.
Taxpayers’ retention of their house in Corvallis dur-
ing 2007 and 2008 also weighs in favor of the notion that
Charles remained domiciled in Oregon. There is no direct
evidence in the record regarding the extent of Charles’ use
of this house during 2007 and 2008. However, the record
shows that Charles was in Oregon for 175 days in 2007 and
for 115-130 days in 2008. Taxpayers’ rental diaries indicate
that Charles was at the 910 Waziyata house for 116 nights in
2007 and 68 nights in 2008. That leaves 59 days in 2007 and
47-62 days in 2008 where Charles was physically present in
Oregon but not at the 910 Waziyata house. In the absence
of evidence that Charles was elsewhere in Oregon on these
unaccounted-for nights, the court concludes that he was
most likely at taxpayers’ house in Corvallis.
Taxpayers also appear to have stored personal prop-
erty, such as furniture and household items, at their house
in Corvallis. In a document taxpayers submitted as an
Cite as 21 OTR 15 (2012) 27
exhibit in this case, taxpayers allege that Charles “gifted”
all the furniture and personal property that he did not bring
with him to Stateline, Nevada, or to Waldport. There is no
indication in the record as to what subsequently became of
that furniture and personal property, so the court must pre-
sume that a substantial part of it remained at the house in
Corvallis during the 2007 and 2008 tax years.
The court does not give particular credence to the
notion that Charles “gifted” his interest in this property to
Louise in any meaningful fashion. Charles’ testimony is
the only evidence for this “gift” in the record. There is no
evidence in the record that by making this “gift” to Louise,
Charles lost the use of any of his property, except perhaps for
some clothing that he gave Louise permission to dispose of.
Taxpayers’ argument appears to be an effort to avoid what-
ever perceived problems that could arise for taxpayers’ case
if certain of Charles’ personal effects and other household
items that taxpayers had acquired as a couple were found
to remain in taxpayers’ house in Corvallis. The continued
presence of this property in Oregon during 2007 and 2008
would, of course, tend to weigh against a conclusion that
Charles had abandoned his Oregon domicile.
In the past this court has concluded that an individ-
ual may cease to be a domiciliary of Oregon despite retain-
ing some connections to Oregon. In Hudspeth v. Dept. of Rev.,
4 OTR 296 (1971), the court held that a taxpayer’s domicile
had changed when he and his family moved from Prineville,
Oregon, to Albuquerque, New Mexico, for the purpose of
taking over his family’s failing timber concern. Hudspeth,
4 OTR at 301. The court reached this conclusion despite tax-
payer’s continuing ownership of a house in Prineville and
even though dues payments to a Prineville golf club and
a Prineville-area lodge of the Benevolent and Protective
Order of Elks were made from the taxpayer’s account at a
Prineville bank after the taxpayer had left Oregon. Id. at
299. In Hudspeth, however, the taxpayer had attempted—
unsuccessfully—to sell his house and the dues payments
were made by the taxpayer’s family comptroller without any
affirmative action on the part of the taxpayer. Id. at 300.
The court also appears to have been swayed by unusually
28 Dane v. Dept. of Rev.
compelling testimony from the taxpayer in that case and his
witnesses. Id. at 301.
Here, unlike in Hudspeth, Charles appears to have
voluntarily perpetuated his ties to Oregon. There is no evi-
dence in the record indicating why taxpayers’ business rela-
tionship ceased with the property management company
that had previously managed taxpayers’ rental units in
Waldport. We do know, however, that since that relationship
ceased Charles has spent a substantial part of his time in
Waldport every year attending to those properties, and that
he did so in both 2007 and 2008. There is no evidence in the
record that taxpayers have ever sought to sell their rental
units or have ever sought to find another property manage-
ment company to oversee these properties.
Likewise, there is no indication in the record that
taxpayers ever sought to sell their home in Corvallis. This
is particularly noteworthy given taxpayers’ assertions that
despite her stipulated status as an Oregon resident during
2007 and 2008, Louise has been physically present with
Charles the majority of the time since Charles’ purported
abandonment of his Oregon domicile in mid-1999. While the
court does not necessarily consider taxpayers’ retention of
their house in Corvallis to be evidence of a positive intention by
Charles to return to Oregon and resume living in taxpayers’
house in Corvallis on a permanent basis, it does weigh
against a finding that Charles had abandoned his Oregon
domicile.
In short, during 2007 and 2008, Charles had ties
to both Oregon and Nevada. Taken on the whole, however,
Charles’ continuing ties to Oregon during these tax years
were such that the court cannot conclude that Charles aban-
doned his Oregon domicile either before or during 2007 or
2008, respectively.
V. CONCLUSION
Given taxpayers’ history of litigating Charles’
Oregon residency, it is clear that Charles no longer wishes
to be considered a resident of Oregon. However, based on
the record presented at trial, Charles did not abandon his
Oregon domicile and establish a new domicile in Nevada
Cite as 21 OTR 15 (2012) 29
prior to the start of 2007, or at any time during the 2007 or
2008 tax years. Now, therefore,
IT IS THE DECISION OF THIS COURT that
Plaintiff Charles W. Dane was a resident of Oregon during
the 2007 and 2008 tax years.