Domicile & Residency Issues

Domicile

California Code of Regulations section 17014(c) defines the term “domicile” as the place where an individual has his true, fixed, permanent home and principal establishment and to which he has, whenever he is absent, the intention of returning. It is the place in which a man has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home. Another definition of “domicile” consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.

“Domicile” is the one location with which, for legal purposes, a person is considered to have the most settled and permanent connection. It is the place where they intend to remain and to which, whenever they are absent, they have the intention of returning.[1] The concept of domicile involves not only physical presence in a particular place, but also the intention to make that place one’s home.[2]

A new domicile is acquired by the actual change of residence to a new place of abode, coupled with the intention to remain there either permanently or indefinitely without any fixed or certain purpose to return to the former place of abode.[3] A determination of residence cannot be based solely upon the declared intention of the parties, but must have its basis in objective facts.[4]  One’s acts must give clear proof of a concurrent intention to abandon the old domicile and establish a new one.[5] An individual can only have one domicile.[6] Two indications of a change in domicile are: (1) taking up actual residence in a location, and (2) intent to remain in that location permanently or indefinitely.[7]

Residency

California imposes an income tax upon the entire taxable income of every resident, and upon the entire taxable income derived from sources in California of every nonresident or part-year resident.[8] The term “resident” includes individuals in this state for other than a temporary or transitory purpose, and individuals domiciled in this state who are outside the state for a temporary or transitory purpose.[9] The primary consideration under either facet of the definition is whether or not the individual is present in California or absent from California for a temporary or transitory purpose.[10] The determination of whether or not an individual is present in or absent from California for a temporary or transitory purpose depends largely upon the facts and circumstances of each case.[11] The determination cannot be based on the individual’s subjective intent, but must instead be based on objective facts.[12] In situations where taxpayers have significant contacts with more than one state, the state with which the appellants maintain the closest connections during the taxable year is the state of residence.[13] Consistent with this view, the contacts taxpayers maintain in this and other states are important objective indications of whether their presence in or absence from California was for a temporary or transitory purpose.[14]  The FTB’s determinations of residency are presumptively correct; therefore, a taxpayer bears the burden of showing error in those determinations.[15]

The following steps, if taken by taxpayers when they decide to change their domicile from California to Nevada, or any other state, will aid in proving their domicile has changed:

  1. Sell or rent out your former principal residence in California as soon as you make the decision to move out of California or as soon as practical.
  2. Retain records of hiring a real estate listing agent or property maintenance firm related to your former California residence.
  3. Do not return to California and attempt to stay at your former residence; stay in a hotel or with friends or family instead.
  4. Do not claim the California Homeowner’s Property Tax Exemption of $70,000 on your county property tax bill after you have moved out of California. The tax impact is $70.
  5. Hire a moving company to move your goods from California to Nevada and retain the bill of lading and invoice related thereto for 7 to 10 years.
  6. Leave nothing in the California residence, particularly school age children; or, leave only the bare essentials for showing your home or renting it out.
  7. Transport all vehicles, RVs, ATVs, motorcycles, boats and aircraft owned or leased by you to Nevada.
  8. Sell all of your golf memberships in California if you can. Retain proof that you tried to sell such memberships.
  9. Find new physicians, dentists, attorneys, accountants, investment counselor, insurance agents in Nevada as soon as possible. Do not visit your former physician or dentist in California after your move unless absolutely necessary.
  10. Reduce your California social ties to the extent possible.
  11. If you retain your California attorney for convenience or out of necessity, e.g., he prepared your estate plan, correspond with him/her via U.S. mail or telephone rather than visit him/her at his/her office.

[1] Whittell v. Franchise Tax Board (1964) 231 Cal.App.2d 278.

[2] (See the Appeal of Anthony J. and Ann S. D’Eustachio 1985-SBE-040, May 8, 1985.

[3] Appeal of Robert J. and Kyung Y. Olsen, 1980-SBE-134, October 28, 1980.

[4] Appeal of Nathan H. and Julia M. Juran, 1968-SBE-004, January 8, 1968.

[5] Chapman v. Superior Court (1958) 162 Cal.App.2d 421.

[6] See Estate of Phillips (1969) 269 Cal.App.2d 656, 659.

[7] Olsen, supra.

[8] Rev. & Tax. Code § 17041, subds. (a)(1) & (b).

[9] Rev. & Tax. Code, § 17014, subds. (a)(1) & (a)(2).

[10] Appeal of Stephen D. Bragg, 2003-SBE-002, May 28, 2003.  See also Appeal of Anthony V. and Beverly Zupanovich, 76-SBE-002, Jan. 6, 1976.

[11] Cal. Code Regs., tit. 18, § 17014, subd. (b).

[12] Zupanovich, supra; See also Appeal of Michael T. and Patricia C. Gabrik, 86-SBE-014, Feb. 4, 1986.

[13] Cal. Code Regs., tit. 18, § 17014, subd. (b); Appeal of Raymond H. and Margaret R. Berner, supra.

[14] Appeal of David J. and Amanda Broadhurst, 76-SBE-036, Apr. 5, 1976; Appeal of Richard L. and Kathleen K. Hardman, 75 SBE-052, Aug. 19, 1975.

[15] Appeal of Joe and Gloria Morgan, 85-SBE-078, July 30, 1985.