Titus v. Department of Revenue

IN THE OREGON TAX COURT
MAGISTRATE DIVISION
Income Tax
DAVID J. TITUS, )
)
Plaintiff, ) TC-MD 110772N
)
v. )
)
DEPARTMENT OF REVENUE, )
)
Defendant. ) DECISION
Plaintiff appealed Defendant‟s Notices of Deficiency Assessment dated May 6, 2011, for
tax years 2002, 2003, 2004, 2005, 2006, and 2007, stating that he was “not an Oregon resident”
for the years at issue. (Ptf‟s Compl at 1.) A trial was held on the matter on June 21, 2012, in the
Tax Courtroom in Salem, Oregon. Plaintiff appeared and testified on his own behalf. Eleanor
Titus (Eleanor), Plaintiff‟s mother, and John Titus (John), Plaintiff‟s father, testified on behalf of
Plaintiff.1 Nathan Carter, Assistant Attorney General, appeared on behalf of Defendant. Ron
Graham (Graham), Tax Auditor, testified on behalf of Defendant. Plaintiff‟s Exhibits 1 through
19 were received without objection. Defendant‟s Exhibits A through U were offered. Plaintiff
objected to Defendant‟s Exhibit Q. The parties filed written closing arguments and this matter is
now ready for decision.
I. STATEMENT OF FACTS
Plaintiff maintains that, for the 2002 through 2007 tax years, he was not an Oregon
resident and therefore does not owe Oregon income tax. Plaintiff testified that, since 1983, he
has lived in Aspen, Colorado and the Lake Tahoe area of California and Nevada. Plaintiff
1
When referring to a party in a written decision, it is customary for the court to use the last name.
However, in this case, the court‟s Decision recites facts and references to several individuals with the same last
name, Titus. To avoid confusion, the court will use the first name of the individual being referenced.
DECISION TC-MD 110772N 1
testified that he believes that he is domiciled in Nevada because his closest ties are to that state.
(See also Def‟s Ex N at 2.) Plaintiff‟s accountant also took that position in a 2009 letter to
Defendant. (Def‟s Ex K at 3.) During the conference with Defendant, Plaintiff‟s attorney and
representative took the position that Plaintiff was domiciled in Colorado. (Def‟s Ex N at 2.)
Defendant maintains that Plaintiff is domiciled in Oregon because Plaintiff has never manifested
intent to establish a new domicile elsewhere. (Ptf‟s Compl at 4.) Because Plaintiff lives an
itinerant lifestyle, he has connections to Oregon, California, Nevada, and Colorado. (Id. at 3.)
The court will discuss Plaintiff‟s connections to Oregon, Nevada, and Colorado in turn.
A. Oregon
Plaintiff testified that he was born in Salem, Oregon, attended high school in Oregon, and
graduated from the University of Oregon with a bachelor‟s degree in December 1981. Plaintiff
last worked in Oregon in 1983, after which time he moved to California and Nevada. (Ptf‟s
Closing Arg at 1, June 21, 2012.) Plaintiff testified that, because he grew up in Oregon, he lists
Oregon as his hometown in his online biography and on his work nametag. He testified that his
nametag serves as a conversation starter with customers at Aspen Ski School.
During the tax years at issue, Plaintiff‟s parents owned a home and lived in Oregon.
(Def‟s Ex K at 2.) Plaintiff visited his parents once or twice a year. (Ptf‟s Ex 18 at 4.) When
Plaintiff visited, he stayed in an office that doubled as a guest room in his parents‟ home. (Id.)
Plaintiff assisted his parents by performing basic yard work, but did not make any payments for
home improvements or house maintenance. (Id.) John testified that Plaintiff gave him $11,000
on September 21, 2006, which he used to pay property taxes on the Oregon home. Plaintiff
testified that he gave his father the money because, otherwise, his parents would lose their home.
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DECISION TC-MD 110772N 2
Plaintiff testified that, other than his parents, his only family member in Oregon is a
cousin who lives in Keizer, with whom he is not in contact. Plaintiff testified that he keeps in
contact with an old high school friend who lives in Oregon. He also visits a dentist in Oregon
once or twice a year. (Ptf‟s Ex 18 at 3.)
Plaintiff testified that he did not own any assets in Oregon and did not earn any income in
Oregon during the tax years at issue. However, Plaintiff is the trustee of an Oregon revocable
trust. (Ptf‟s Ex 13 at 9.) Plaintiff also owns two vehicles that were registered in Oregon as
recently as January 1, 2009. (Def‟s Ex G at 2-3.) He testified that he registered those vehicles in
Oregon as a matter of convenience. Plaintiff testified that his father gave him a Suburban in
2005 and he had to register it in Oregon in order to drive it to Nevada. Plaintiff testified that he
subsequently registered the Suburban in Nevada as early as 2010. (Ptf‟s Ex 13 at 8.) Plaintiff
testified that he bought a vehicle in California in 2002, took it to a specialized mechanic in
McMinnville, Oregon, and then registered that vehicle in Oregon.
Plaintiff was registered to vote in Oregon since 1998 and voted in Oregon in 2008. (Ptf‟s
Ex 18 at 3; Def‟s Ex F.) Plaintiff testified that he wanted to vote in presidential elections and
registering in Oregon was the only way he could do so given the ski season. (See Ptf‟s Closing
Arg at 1, June 21, 2012.) Plaintiff also retained an Oregon driver license during the tax years at
issue.2 (Def‟s Ex G at 1.) Plaintiff testified that he maintained his Oregon driver license because
it has a motorcycle endorsement that his Nevada driver license lacked. Plaintiff also obtained
resident shellfish licenses in Oregon in 2004, 2005, and 2006. (Def‟s Ex E at 3.) Plaintiff
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2
Plaintiff obtained a California driver license in 1986 and a Nevada driver license in 1996. (Ptf‟s Ex 18 at
3; Ptf‟s Ex 13 at 1.) It is unclear to the court why Plaintiff did not surrender his Oregon driver license when he
obtained new licenses.
DECISION TC-MD 110772N 3
testified that he obtained those licenses in order to help his father and his father‟s friends go
crabbing. (See Ptf‟s Closing Arg at 1, June 21, 2012.)
Plaintiff received mail at his parents‟ post office (PO) box in Independence, Oregon.
(Ptf‟s Ex 18 at 3.) Plaintiff testified that he does not have a key to the PO box. Plaintiff received
mail, including notices regarding voter registration, vehicle registration, and a money market
account Plaintiff‟s parents set up for him at birth. (Id.) Plaintiff testified that he sent tax
documents to the Oregon PO box for his mother to pick up.
Eleanor testified that, since 1960, she has worked in the field of accounting and tax
preparation. She testified that her last employer was a tax preparer in Monmouth, Oregon.
Eleanor testified that her employer in Monmouth prepared Plaintiff‟s tax returns until 2007 or
2008. Eleanor testified that she included the Independence, Oregon, PO box as Plaintiff‟s
address on Plaintiff‟s tax returns for the tax years at issue.
Graham testified that he believes Plaintiff will return to Oregon once Plaintiff‟s parents
pass away. Plaintiff testified that he has no intent to ever return to Oregon because there are no
career opportunities for him in the state and he will not inherit his parents‟ house because it is
subject to a reverse mortgage.
B. Nevada
Plaintiff testified that from 1983 to 1992, he lived and worked in Lake Tahoe. In 1983,
Plaintiff began working as a ski instructor and also worked “year round at Caesars Tahoe in
order to obtain health insurance.” (Ptf‟s Closing Arg at 2; Ptf‟s Ex 1 at 1-4 (wages from Caesars
Tahoe Hotel Casino from 1983 through 1993).) In 1993, Plaintiff started working at “Edgewood
Tahoe” (Edgewood).3 (Ptf‟s Closing Arg at 2, July 23, 2012; Ptf‟s Ex 1 at 4-7 (wages from
3
“Edgewood” is reported as “Park Cattle Co” on Plaintiff‟s W-2s. (See generally Ptf‟s Ex 16.)
DECISION TC-MD 110772N 4
Edgewood from 1993-2000); Ptf‟s Ex 16.) Plaintiff testified that, beginning in 1993, he spent
the “summer season” in Lake Tahoe and the “winter season” in Aspen. He testified that his
employment at Edgewood typically began during the second week of June and ended in October.
Plaintiff testified that he plans to continue working at Edgewood until he retires.
Plaintiff did not own a residence in Nevada during the tax years at issue. (Ptf‟s Ex 18
at 1.) Plaintiff testified that, because he spends only part of the year in Nevada, he finds it more
convenient to rent rooms from friends while in the state. During the tax years at issue, Plaintiff
rented a room in a home owned by a friend of his in South Lake Tahoe, California.4 (Ptf‟s Ex 18
at 1-2; Def‟s Ex K at 2.) Plaintiff testified that he was and is a joint owner of a vacant lot in
Nevada with two other people. Plaintiff testified that his intent when he bought the lot was to
buy out the other two owners and build a home on the lot.
Plaintiff testified that, because he has worked and lived in Nevada since 1983, many of
his friends and coworkers live in Nevada. Plaintiff maintained PO boxes in Stateline, Nevada
and Zephyr Cove, Nevada during the tax years at issue. (Ptf‟s Ex 18 at 2.) Plaintiff received a
Nevada driver license in 1996, which he renewed in 2004. (Ptf‟s Ex 13 at 1.) Plaintiff registered
to vote in Nevada in 2009. (Id. at 11.) Plaintiff owns a Suburban that is currently registered and
insured in Nevada. (Id. at 8, 11.) Plaintiff also has an REI membership listing his Zephyr Cove
PO box as his address. (Id. at 12.)
C. Colorado
In 1993, Plaintiff began working as a ski instructor at Aspen Ski School. (Ptf‟s Closing
Arg at 2, July 23, 2012; Ptf‟s Ex 1 at 4-6 (wages from Aspen Skiing Company LLC from
1993-2000.) Plaintiff testified that, since 1993, he has lived and worked in Aspen, Colorado
4
Plaintiff testified that Tahoe is on the border of California and Nevada.
DECISION TC-MD 110772N 5
from November through April each year. (See Ptf‟s Ex 18 at 1-2; Def‟s Ex K at 1.) Plaintiff
stated that his position with the Aspen Ski School provided him “with a 401k plan and
* * * year round health insurance.” (Ptf‟s Closing Arg at 2, July 23, 2012.) He testified that he
plans to work at Aspen Ski School until he retires. Plaintiff did not own a residence in Colorado
during the tax years at issue; rather, he rented a room from a friend. (Ptf‟s Ex 18 at 1; Def‟s
Ex K at 1.) Plaintiff testified that many of his friends and coworkers live in Colorado.
Plaintiff‟s only bank account was with Alpine Bank, located in Colorado; he also had a
credit card. (Ptf‟s Ex 18 at 1.) Plaintiff had a PO box in Snowmass Village, Colorado. (Id. at 2;
Def‟s Ex H a 2.) Plaintiff had a AAA membership in Colorado. (Ptf‟s Ex 13 at 11.) Plaintiff
was a member of the Rocky Mountain Division of the Professional Ski Instructors of America.
(Id. at 12.) Plaintiff also had an Aspen, Colorado library card. (Id. at 12.) Plaintiff received
inoculations in Colorado. (Ptf‟s Ex 13 at 13.) He stated that he received “[a]ll major medical
services * * * in Colorado and California.” (Ptf‟s Closing Arg at 1, June 21, 2012.)
Plaintiff filed original income tax returns in Colorado for the 2002 through 2007 tax
years. (See Def‟s Ex B, C, D.) Amended Colorado income tax returns were prepared but,
according to the State of Colorado Tax Auditing and Compliance Division, no amended returns
had been filed for tax years 2003 through 2011 as of April 24, 2012. (Def‟s Ex I at 1.) Graham
testified that it appears Plaintiff received the amended returns in July 2009. (See, e.g., Def‟s Ex
B at 3.) Plaintiff testified that he did not receive any of the Colorado amended returns until
about one month before the trial date because they were sent to his former attorney and not to
him. (See Ptf‟s Ex 19 (box addressed to Plaintiff at his Colorado addressed with a postmark of
January 17, 2012).) Plaintiff‟s original and amended returns differ with respect to the address:
Plaintiff changed his address from his parents‟ PO box in Independence, Oregon, to his PO box
DECISION TC-MD 110772N 6
in Snowmass Village, Colorado. (Def‟s Ex B, C, D.) Some of the amended Colorado returns
include an “explanation of changes” stating that “it has been determined that [Plaintiff‟s]
residence and domicile is in Colorado based on the facts and circumstances of his situation.”
(See, e.g., Def‟s Ex B at 39; Ex C at 12, 41; Ex D at 24, 65.) Plaintiff also shifted some of his
income from Nevada to Colorado. (Id.) Plaintiff‟s tax preparer checked the box for “part-year
resident(s) or nonresident(s)” on Plaintiff‟s 2003, 2005, 2006, and 2007 original Colorado
income tax returns, and the box for “full-year resident(s)” on Plaintiff‟s 2004 original Colorado
income tax return. (Def‟s Exs B, C, D, J.)) No explanation was provided for that discrepancy.
D. International travel: 2002 to 2005
Plaintiff testified that he often traveled internationally in between his employment in
Colorado and Nevada during the years 2002 through 2005. Plaintiff provided photocopies of his
passport stamps during the tax years at issue. (Ptf‟s Ex 14.) In September 2002, Plaintiff
traveled to Chile. (Ptf‟s Ex 14 at 2-3.) Plaintiff stated that he traveled to Fiji “after the
2002/2003 ski season (April 19th 2003) and returned June 2, 2003.” (Ptf‟s Closing Arg at 5,
July 23, 2012.) Plaintiff stated that he “believes he traveled to the east coast with a friend” after
the ski season ending April 17, 2004. (Id.) In September 2004, Plaintiff traveled to Grenada.
(Ptf‟s Ex 14 at 4.) From April to May 2005, Plaintiff was in Mexico. (Id. at 5.)
II. ANALYSIS
Oregon imposes a state income tax on every resident of Oregon and every nonresident
with Oregon source income. ORS 316.037(1), (3).5 “Resident” is defined by statute as:
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5
All references to the Oregon Revised Statutes (ORS) and Oregon Administrative Rules (OAR) are to
2005. Although several versions are applicable to the tax years at issue, the 2001, 2003, and 2005 versions of
ORS 316.027, ORS 316.037, and OAR 150-316.027 are identical.
DECISION TC-MD 110772N 7
“(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 elsewhere; and
“(iii) Spends in the aggregate not more than 30 days in the taxable year in
this state[.]”
ORS 316.027(1)(a)(A). “[A]n individual is a resident of Oregon if that individual is domiciled in
Oregon, unless the [individual] falls within the safe haven provided by ORS 316.027(1)(a)(A)(i)
to (iii).” Gorski v. Dept. of Rev. (Gorski), TC No 4971 at 10 (May 23, 2012).
Plaintiff has the burden of proof and must establish his case by a preponderance of the
evidence. ORS 305.427. A “[p]reponderance of the evidence means the greater weight of
evidence, the more convincing evidence.” Feves v. Dept. of Rev., 4 OTR 302, 312 (1971). “[I]f
the evidence is inconclusive or unpersuasive, the taxpayer will have failed to meet his burden of
proof.” Reed v. Dept. of Rev., 310 Or 260, 265, 798 P2d 235 (1990).
A. Domicile
Domicile is a common law concept comprised of two components: “a fixed habitation or
abode in a particular place, and an intention to remain there permanently or indefinitely.” dela
Rosa v. Dept. of Rev., 313 Or 284, 289, 832 P2d 1228 (1992). “Domicile” is defined as “the
place an individual considers to be the individual‟s true, fixed, permanent home. Domicile is the
place a person intends to return to after an absence.” OAR 150-316.027(1)(a). Everyone has a
domicile and an individual can have only one domicile at any time. Zimmerman v. Zimmerman,
175 Or 585, 591, 155 P2d 293 (1945). “The law is also clear that once domicile is established or
determined to be in a particular location, it remains there until the person establishes a new
domicile.” Duncan v. Dept. of Rev., 1998 WL 792454 at *1, TC No 4315 (Nov 3, 1998).
DECISION TC-MD 110772N 8
Plaintiff was born in Oregon and lived in Oregon until he graduated college in 1981; thus, it is
clear that Plaintiff‟s original domicile was Oregon.
“In order to change domicile, an individual must (a) intend to abandon that person‟s
former domicile and acquire a new one, and (b) actually acquire a new domicile.” Gorski, TC
No 4971 at 10, citing Davis v. Dept. of Rev., 13 OTR 260, 264 (1995). “[D]etermination of an
individual‟s domicile is based on intent supported by facts and circumstances rather than merely
the statements of the individual * * *.” Butler v. Dept. of Rev. (Butler), TC-MD No 050801D,
WL 2041284 at *4 (July 18, 2006) (citations omitted). “Factors that contribute to determining
domicile include family, business activities and social connections.” OAR 150-316.027(1)(a).
Absent an intent to abandon his Oregon domicile and acquire a new domicile, Plaintiff‟s
domicile is Oregon. For example, in Dept. of Rev. v. Glass (Glass), 15 OTR 117, 120 (2000),
aff’d 333 Or 1, 35 P3d 325 (2001), the court held that the taxpayer was domiciled in Oregon
despite the fact that his work during the tax years at issue was entirely outside of the state:
“Taxpayer grew up in Oregon and never changed his domicile before or after his
military service. Taxpayer testified that he is not a resident of any state and does
not think of any state as „home.‟ However, taxpayer‟s contacts with Oregon,
including his driver license, registering cars in Oregon, using an Oregon mailing
address, and the fact that his parents and siblings live in Oregon, all constitute
evidence of his state of mind. * * * While those contacts are not very substantial,
they are significant because of the lack of contacts with any other state.”
1. Residence outside of Oregon
To prove that he has abandoned his Oregon domicile and adopted a new domicile in
another state, Plaintiff must prove that he established an abode in another state. Bleasdell v.
Dept. of Rev., 18 OTR-MD 354, 361 (2004). An abode is “any physical building, structure, or
vehicle in which the taxpayer lives and sleeps.” OAR 150-316.027(1)(c). It is uncontested that,
after leaving Oregon in 1983, Plaintiff has rented rooms in houses and apartments in California,
DECISION TC-MD 110772N 9
Nevada, and Colorado. Thus, Plaintiff has established residences in several other states. See
Palandech v. Dept. of Rev., TC-MD 100015C, WL 1045641 at *7 (Mar 23, 2011) (concluding
taxpayers established residences in Washington, New Mexico, and Arizona by renting or
purchasing homes in those states).
2. Intent to abandon Oregon domicile
Plaintiff must prove that he intended to abandon his Oregon domicile. Determining an
individual‟s intent “is difficult because it is so heavily steeped in the subjective view of the
individual at issue.” Ott v. Dept. of Rev., 16 OTR 102, 111 (2002) (citing Hudspeth v. Dept. of
Rev., 4 OTR 296, 298 (1971)). “Due to the self-serving nature of statements of intent, heavy
reliance is placed on an individual‟s overt acts to discern state of mind.” Id.Plaintiff testified and reiterated in his closing arguments that he left Oregon to pursue a
career as a ski instructor. (See Ptf‟s Closing Arg at 1-2, Jul 23, 2012.) Plaintiff further stated:
“Independence Oregon has absolutely no career possibilities for [his] profession.
Service industry jobs are scarce and the pay is significantly less than that of Tahoe
or Aspen. Skiing is at least 150 miles away and the only destination resort is Mt
Bachelor which does not have the same client base that [Plaintiff] has worked so
hard to achieve and maintain.”
(Id. at 2.) Plaintiff has been successful in his chosen career as a ski instructor and the court is
persuaded by Plaintiff‟s testimony and statement that he could not pursue that career in Oregon.
OAR 150-316.027(1)(a) states that “business activities” are one factor “that contribute to
determining domicile” and Plaintiff‟s career as a ski instructor in a factor suggesting that
Plaintiff intended to abandon his Oregon domicile.
Despite pursuing his career in Nevada and Colorado, Plaintiff maintained numerous ties
with Oregon during the tax years at issue, suggesting that Plaintiff did not intend to abandon his
Oregon domicile. Plaintiff‟s parents lived in Oregon and he visited them twice a year. Although
DECISION TC-MD 110772N 10
Plaintiff received most of his medical care in Colorado, Plaintiff retained the services of a dentist
and a mechanic in Oregon. Plaintiff received mail at his parents‟ PO box in Oregon in addition
to his PO boxes in Nevada and Colorado. Plaintiff also sent his tax information to his parents‟
PO box. Plaintiff had cars registered in both Oregon and Nevada. Plaintiff had both Oregon and
Nevada driver licenses. Plaintiff was registered to vote in Oregon and acquired an Oregon
resident shellfish license for three of the tax years at issue. Plaintiff‟s taxes were prepared in
Oregon. Thus, Plaintiff retained numerous connections to Oregon during the tax years at issue.
This court has previously held that maintaining numerous connections to Oregon
manifests an intent to remain domiciled in the state. In Dane v. Department of Revenue (Dane),
the taxpayer maintained ties to Oregon including in-state medical services, frequent visits, and
mail receipt at an Oregon PO box. TC-MD 040084F, WL 2640502 at *4 (Oct 28, 2004). Even
though the taxpayer in Dane received mail and medical services in Nevada, did not have an
Oregon driver license, was not registered to vote in Oregon, and had a car registered in Nevada,
the court determined the taxpayer “made a conscious decision to maintain his connections to
Oregon and, therefore, intentionally did not abandon his Oregon domicile.” Id. Plaintiff
discounts the relevance of family connection to Oregon, stating that he “should not be taxed for
visiting his elderly parents.” (Ptf‟s Closing Arg at 6, July 23, 2012.) However, as is clear from
previous case law and OAR 150-316.027(1)(a), family connections are an important
consideration in determining domicile and Plaintiff‟s only family is in Oregon. Furthermore, as
discussed above, Plaintiff has maintained numerous connections to the state of Oregon. As a
result, the court finds that Plaintiff did not intend to abandon his Oregon domicile.
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DECISION TC-MD 110772N 11
3. Intent to acquire a new domicile
Plaintiff must also prove he intended to acquire a new domicile outside of Oregon.
“Typically the purchase of a home coupled with a job in a given locale is sufficient to establish
domicile in that state.” Backman v. Dept. of Rev., 16 OTR-MD 156, 162 (1999). The intention
to acquire a new domicile “must be a present intent” and “cannot be conditioned on the
occurrence or nonoccurrence of some future event or contingency.” Gorski, TC No 4971 at
10-11, citing Oberhettinger v. Dept. of Rev., 4 OTR 62, 64 (1970).
As discussed above, the primary factor suggesting that Plaintiff intended to acquire a
domicile outside of Oregon is the fact that he pursued a career as a ski instructor, returning to
jobs in Colorado and Nevada year after year, including the tax years at issue. As of the tax years
at issue, Plaintiff had established other connections to Colorado and Nevada. Plaintiff jointly
owned a vacant lot in Nevada and testified that he intends to buy out the other owners and reside
on that property. Plaintiff rented rooms in both states in conjunction with his seasonal
employment. He maintained PO boxes in both Nevada and Colorado, as well as a bank account
in Colorado. Plaintiff received medical care primarily in Colorado.
Plaintiff‟s actions do not clearly show a conscious decision to declare Nevada or
Colorado as his domicile. Plaintiff‟s connections to Nevada and Colorado center on his
employment in those two states. Plaintiff rents housing wherever he is employed at any given
time of year. Plaintiff receives most of his medical care in Colorado because Aspen Ski School
provides his medical insurance. This court has previously noted that “[r]elocation to a state with
the primary goal of working in that state does not necessarily meet the statutory requirements of
domicile * * *.” Butler, TC-MD No 050801D at 10; see also Gorski, TC No 4971 at 14-15
(finding that the taxpayer was domiciled in Oregon despite having moved to Texas and Florida
DECISION TC-MD 110772N 12
“for the limited purpose of acquiring the experience necessary to achieve an apparently long held
career goal”).
Plaintiff‟s ties to Colorado, including bank accounts, PO boxes, and group memberships,
are easily reversed or terminated. Plaintiff‟s connections to Nevada, including vehicle
registration and a driver license, are required by Nevada law. “Such conduct is not as
determinative as actions which require the individual to make a conscious decision and declare
their status.” White v. Dept. of Rev. (White), 14 OTR 319, 322-23 (1998). By contrast, Plaintiff
voluntarily registered to vote in Oregon, obtained a resident shellfish license in Oregon, retained
the services of a mechanic and a dentist in Oregon, and had his income taxes prepared in Oregon.
Thus, while maintaining residences in Nevada and Colorado, Plaintiff continued to look to
Oregon for financial, medical, and other personal services and maintained his personal ties to
Oregon. See White, 14 OTR at 323; Butler, TC-MD No 050801D at 9. Plaintiff has not
established by a preponderance of the evidence that he intended to abandon his Oregon domicile
or establish a domicile outside of Oregon during or prior to any of the tax years at issue. Thus,
the court finds that Plaintiff was domiciled in Oregon during the tax years at issue.
B. Nonresident domiciliary under ORS 316.027(1)(a)(A)(i) to (iii)
ORS 316.027(1)(a)(A) provides a “safe harbor” for individuals domiciled in Oregon who
maintain “no permanent place of abode” in Oregon, “maintain a permanent place of abode”
outside of Oregon, and spend “not more than 30 days in the taxable year” in Oregon. See also
Gorski, TC No 4971 at 15. Having found that Plaintiff was domiciled in Oregon during the tax
years at issue, the court next considers whether he was a nonresident domiciliary under
ORS 316.027(1)(a)(A) for any of those tax years.
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DECISION TC-MD 110772N 13
In Ramsey v. Dept. of Rev. (Ramsey), 7 OTR 478, 481 (1978), this court considered “the
meaning of „permanent place of abode‟ as used in ORS 316.027(1)(a). * * * There is a general
understanding that [„abode‟] signifies a building or shelter which is the dwelling place of a
person.” Id. at 481. The court observed that:
“The word „permanent,‟ as a modifier of „abode,‟ causes confusion in connection
with the patent legislative intent found in ORS 316.027(1) to give tax relief to
certain domiciliaries. „Permanent‟ carries the connotation of lasting,
unchangeable, enduring. It cannot have that meaning in the present context. As
is well known, a domiciliary, in his own state, is deemed to have a „permanent
abode,‟ even in rented premises, which he is free to leave as interest or pleasure
may suggest, but which he has no present intention of changing or desire to
change. It is reasonable to assume that no greater burden is placed by ORS
316.027 on the nonresident domiciliary in respect to ‘permanent place of abode’
than upon the resident domiciliary.”
Id. at 481-82 (emphasis added). The court considered as persuasive a decision of the Rhode
Island Supreme Court, which held: “ „In our view the establishment of a permanent place of
abode requires the maintenance of a fixed place of abode over a sufficient period of time to
create a well-settled physical connection with a given locality.‟ ” Id. at 483.
In Ramsey, the taxpayers lived abroad in several different countries on work assignments
during the period April 1967 through June 1976. 7 OTR at 479. The taxpayers‟ work
assignments were typically two years in length. Id. While abroad in Barbados, the taxpayers in
Ramsey “spent two weeks in a hotel upon their arrival * * *. On June 1, 1974, they moved into a
house where they stayed until December 27, 1974. They took temporary lodging for a few days,
running into 1975, until they found another house in which they lived for about eight months.”
Id. at 480. Despite numerous changes of the taxpayer‟s abode, the court held that the taxpayers
satisfied the requirements of ORS 316.027(1)(a). Id. at 484.
The court‟s decision in Ramsey is reflected in Defendant‟s administrative rule, stating
that a permanent place of abode is “a dwelling place permanently maintained by the taxpayer,
DECISION TC-MD 110772N 14
whether or not owned by the taxpayer[.] * * * To constitute a permanent place of abode, the
taxpayer must maintain a fixed place of abode over a sufficient period of time to create a well-
settled physical connection with a given locality.” OAR 150-316.027(1)(b).
In Glass, the court considered whether the taxpayer, a driver with five routes all outside
of Oregon, whose “primary or „permanent‟ abode [was] his truck,” had a “permanent place of
abode” outside of Oregon, within the meaning of ORS 316.027(1)(a). 15 OTR at 121. The court
distinguished the facts presented from those in Ramsey:
“In Ramsey, this court found that where taxpayers‟ employment took them
to different locations, and they lived for four months in Seattle, Washington, and
seven months in a house in Barbados, they satisfied the requirement of
maintaining a permanent place of abode elsewhere. Although the abodes had a
fixed location, the taxpayers changed their abode and therefore their location. In
the instant case, taxpayer maintains the same form or type of abode but that abode
is mobile and changes location.”
Glass, 15 OTR at 122. Noting that it did “not seem fair that a taxpayer who lives and works in a
truck operating entirely outside Oregon (except on rare occasions) should be required to pay
Oregon personal income taxes,” the court nevertheless concluded that the taxpayer‟s truck was
not a “permanent place of abode.” Id. at 123. The court reasoned that “ „place‟ suggests the
requirement of a location. If the word „place‟ is omitted, then the statute simply requires a
taxpayer to maintain a permanent abode.” Id.In Gorski, this court found that the taxpayer had not established a “permanent place of
abode” when he leased an unfurnished apartment while looking for work elsewhere or when he
rented a room in a furnished home. TC No 4971 at 17. The court observed that, “by renting
rooms in furnished homes taxpayer most likely avoided a good deal of the expense and
investment commonly associated with setting up a new permanent dwelling place.” Id.DECISION TC-MD 110772N 15
Plaintiff testified that, when he is in Oregon, he stays at his parents‟ home and sleeps in
an office that doubles as a guest room. Defendant concedes, and the court agrees, that Plaintiff
did not maintain a permanent place of abode in Oregon. (See Def‟s Closing Arg at 7.) Citing
Gorski, Defendant argues that Plaintiff did not maintain a permanent place of abode outside of
Oregon. (Id. at 9.) Defendant states that Plaintiff “stayed with friends and paid rent in cash. No
leases ever were signed and no utility bills were in [Plaintiff‟s] name.” (Id. (internal citations
omitted).) Defendant further notes that Plaintiff “was a seasonal employee, which meant that his
stay in any locale was always temporary.” (Id. at 10 (citation omitted).) Plaintiff considers his
employment to be permanent, stating that he “does not have to apply yearly [to the Aspen Ski
School] or get fired. He is laid off due to the weather or lack of work and it is known and
expected that he will return the following season.” (Ptf‟s Closing Arg at 2, July 23, 2012.)
Although Plaintiff‟s employment in both Colorado and Nevada was seasonal, Plaintiff has
returned year after year to the same jobs since 1993. Unlike the taxpayer in Gorski, Plaintiff was
not seeking new employment; rather, he had a reasonable expectation of continued employment
in both Nevada and Colorado. The court finds that Plaintiff had permanent places of abode
outside of Oregon during the tax years at issue.
Finally, the court must consider whether Plaintiff spent “not more than 30 days” in
Oregon during any of the tax years at issue. Plaintiff provided some cellular phone bills, hotel
reservations, and passport stamps from 2005, 2006, and 2007. (See generally Ptf‟s Exs 5, 6, 7.)
For years 2005, 2006, and 2007, Plaintiff‟s records are from April through November, although
they are not complete for each year. Plaintiff also provided monthly credit card statements dated
from December 12, 2005, through December 31, 2007. (Ptf‟s Ex 8.) Plaintiff was unable to
obtain and provide records from 2002, 2003, and 2004. (See Ptf‟s Ex 7 at 5.) Plaintiff initially
DECISION TC-MD 110772N 16
determined from his own records that he was in Oregon 31 days in 2005, 11 days in 2006, and 18
days in 2007. (Id.) Defendant determined that Plaintiff was in Oregon at least 45 days in 2005,
at least 27 days in 2006, and at least 25 days in 2007. (Def‟s Closing Arg at 8.) Plaintiff
subsequently agreed that he spent 27 days in Oregon in 2006 and 25 days in Oregon in 2007.
(Ptf‟s Closing Arg at 4, July 23, 2012.)
Plaintiff testified that he was working full time as a ski instructor in Colorado from
November through April in 2005, 2006, and 2007. Plaintiff‟s cellular phone bills indicate that he
was in Colorado beginning November 23, 2005, (Ptf‟s Ex 5 at 6); November 23, 2006, (Ptf‟s
Ex 6 at 7); and November 20, 2007 (Ptf‟s Ex 7 at 3). Plaintiff‟s evidence supports his testimony
that he was in Colorado through April; specifically, he was in Colorado as late as April 15, 2005,
(Def‟s Ex U at 1); and April 25, 2006 (Ptf‟s Ex 6 at 1-2). A review of Plaintiff‟s monthly credit
card statements from December 12, 2005, through December 31, 2007, do not suggest that
Plaintiff was in Oregon more than 27 days in 2006 or 25 days in 2007. (Ptf‟s Ex 8.) The court is
persuaded that Plaintiff did not spend more than 30 days in Oregon in either 2006 or 2007; thus,
Plaintiff was a nonresident domiciliary under ORS 316.027(1)(a)(A) for those tax years.
III. CONCLUSION
After carefully considering all the testimony and evidence, the court finds that Plaintiff
was domiciled in Oregon during the 2002 through 2005 tax years. The court further finds that
Plaintiff was a nonresident domiciliary for the 2006 and 2007 tax years. Now, therefore,
IT IS THE DECISION OF THIS COURT that Plaintiff was a resident of Oregon under
ORS 316.027 for the 2002 through 2005 tax years and is liable for Oregon income tax for those
years under ORS 316.037.
///
DECISION TC-MD 110772N 17
IT IS FURTHER DECIDED that, under ORS 316.027(1)(a)(A), Plaintiff was a
nonresident domiciliary for the 2006 and 2007 tax years and is not liable for Oregon income tax
for those years.
Dated this day of October 2012.
ALLISON R BOOMER
MAGISTRATE
If you want to appeal this Decision, file a Complaint in the Regular Division of
the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563;
or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR.
Your Complaint must be submitted within 60 days after the date of the Decision
or this Decision becomes final and cannot be changed.
This Decision was signed by Magistrate Allison R. Boomer on October 10, 2012.
The Court filed and entered this Decision on October 10, 2012.
DECISION TC-MD 110772N 18