20160224-IR-045160071NRA Letter of Findings: 01-20150693 Indiana Individual Income Tax For The Tax Year 2012  

  • DEPARTMENT OF STATE REVENUE
    01-20150693.LOF

    Letter of Findings: 01-20150693
    Indiana Individual Income Tax
    For The Tax Year 2012


    NOTICE: IC § 6-8.1-3-3.5 and IC § 4-22-7-7 require the publication of this document in the Indiana Register. This document provides the general public with information about the Department's official position concerning a specific set of facts and issues. This document is effective on its date of publication and remains in effect until the date it is superseded or deleted by the publication of another document in the Indiana Register. The "Holding" section of this document is provided for the convenience of the reader and is not part of the analysis contained in this Letter of Findings.

    HOLDING

    For purposes of the Indiana individual income tax, Taxpayer was required to file a 2012 Indiana individual income tax return because Taxpayer was an Indiana resident. Taxpayer's uninterrupted ownership of Taxpayer's Indiana home - including claiming the Homestead Credit on that residence - manifested an intention to retain their Indiana domicile. Taxpayer was not responsible for the negligence penalty because Taxpayer established reasonable cause for penalty abatement. Taxpayer was responsible for the interest that accrued on the unpaid tax liabilities.

    ISSUES

    I. Indiana Individual Income Tax - Residency: Domicile.

    Authority: IC § 6-3-1-3.5; IC § 6-3-1-12; IC § 6-3-1-13; IC § 6-3-2-1; IC § 6-3-2-2; IC § 6-8.1-5-1; Lafayette Square Amoco, Inc. v. Indiana Dep't of State Revenue, 867 N.E.2d 289 (Ind. Tax Ct. 2007); Indiana Dep't. of State Revenue v. Rent-A-Center East, Inc., 963 N.E.2d 463 (Ind. 2012); Scopelite v. Indiana Dep't of Local Gov't Fin., 939 N.E.2d 1138 (Ind. Tax Ct. 2010); Wendt LLP v. Indiana Dep't of State Revenue, 977 N.E.2d 480 (Ind. Tax Ct. 2012); Croop v. Walton, 157 N.E. 275 (Ind. 1927); State Election Bd. v. Bayh, 521 N.E.2d 1313 (Ind. 1988); 45 IAC 3.1-1-21; 45 IAC 3.1-1-22.

    Taxpayer protests the Department's proposed assessment for the 2012 tax year.

    II. Tax Administration - Negligence Penalty.

    Authority: IC § 6-8.1-10-2.1; 45 IAC 15-11-2.

    Taxpayer protests the imposition of the negligence penalty.

    III. Tax Administration - Interest.

    Authority: IC § 6-8.1-10-1.

    Taxpayer protests the imposition of interest.

    STATEMENT OF FACTS

    The Indiana Department of Revenue ("Department") in a letter to Taxpayer dated March 2015, stated that, "After evaluating your account, the Department has determined that you never abandoned your Indiana Domicile. Accordingly, you incorrectly failed to file an Indiana return for tax year 2012." Subsequently, the Department issued a Proposed Assessment of 2012 individual income taxes.

    Taxpayer disagreed with the assessment and submitted a protest to that effect. An administrative hearing was conducted during which Taxpayer explained the basis for the protest. This Letter of Findings results.

    I. Indiana Individual Income Tax - Residency: Domicile.

    DISCUSSION

    The Department determined that Taxpayer was an Indiana resident, that failed to file the 2012 Indiana income tax return, and that Indiana income tax was due for 2012. Taxpayer, to the contrary, claimed that Taxpayer was not required to file the 2012 Indiana income tax return and Taxpayer did not owe any Indiana income tax because Taxpayer was not an Indiana resident.

    The issue is whether, for the tax year 2012, Taxpayer was an Indiana resident and therefore was subject to Indiana income tax.

    As a threshold issue, all tax assessments are prima facie evidence that the Department's claim for the unpaid tax is valid; the taxpayer bears the burden of proving that any assessment is incorrect. IC § 6-8.1-5-1(c); Lafayette Square Amoco, Inc. v. Indiana Dep't of State Revenue, 867 N.E.2d 289, 292 (Ind. Tax Ct. 2007); Indiana Dep't of State Revenue v. Rent-A-Center East, Inc., 963 N.E.2d 463, 466 (Ind. 2012). Thus, the taxpayer is required to provide documentation explaining and supporting its challenge that the Department's assessment is wrong. Poorly developed and non-cogent arguments are subject to waiver. Scopelite v. Indiana Dep't of Local Gov't Fin., 939 N.E.2d 1138, 1145 (Ind. Tax Ct. 2010); Wendt LLP v. Indiana Dep't of State Revenue, 977 N.E.2d 480, 486 n.9 (Ind. Tax Ct. 2012).

    Indiana imposes a tax "on the adjusted gross income of every resident person, and on that part of the adjusted gross income derived from sources within Indiana of every nonresident person." IC § 6-3-2-1(a). IC § 6-3-2-2(a) specifically outlines what is income derived from Indiana sources and subject to Indiana income tax. For Indiana income tax purposes, the presumption is that taxpayers properly and correctly file their federal income tax returns as required pursuant to the Internal Revenue Code. Thus, to efficiently and effectively compute what is considered the taxpayers' Indiana income tax, the Indiana statute refers to the Internal Revenue Code. IC § 6-3-1-3.5(a) provides the starting point to determine the taxpayers' taxable income and to calculate what would be their Indiana income tax after applying certain additions and subtractions to that starting point.

    For Indiana income tax purposes, resident "includes (a) any individual who was domiciled in this state during the taxable year, or (b) any individual who maintains a permanent place of residence in this state and spends more than one hundred eighty-three (183) days of the taxable year within this state. . . ." IC § 6-3-1-12; see also 45 IAC 3.1-1-21. Nonresident is "any person who is not a resident of Indiana." IC § 6-3-1-13.

    Additionally, 45 IAC 3.1-1-22 states:

    For the purposes of this Act, a person has only one domicile at a given time even though that person maintains more than one residence at that time. Once a domicile has been established, it remains until the conditions necessary for a change of domicile occur.

    In order to establish a new domicile, the person must be physically present at a place, and must have the simultaneous intent of establishing a home at that place. It is not necessary that the person intend to remain there until death; however, if the person, at the time of moving to the new location, has definite plans to leave that new location, then no new domicile has been established.

    The determination of a person's intent in relocating is necessarily a subjective determination. There is no one set of standards that will accurately indicate the person's intent in every relocation. The determination must be made on the facts present in each individual case. Relevant facts in determining whether a new domicile has been established include, but are not limited to:

    (1) Purchasing or renting residential property
    (2) Registering to vote
    (3) Seeking elective office
    (4) Filing a resident state income tax return or complying with the homestead laws of a state
    (5) Receiving public assistance
    (6) Titling and registering a motor vehicle
    (7) Preparing a new last will and testament which includes the state of domicile.

    (Emphasis added).

    In Croop v. Walton, 157 N.E. 275 (Ind. 1927), a taxpayer, Mr. Walton, moved from Sturgis, Michigan to Elkhart, Indiana by selling his Michigan residence and purchasing a residence in Indiana, where he and his wife lived for several years for the benefits of his wife's health. Indiana assessed Mr. Walton state income tax on his intangible property. Id. at 276-78. Mr. Walton disagreed, arguing that his intangible property was not subject to Indiana taxes because he was domiciled in Michigan. Id. The court found that Mr. Walton owned and managed a company and stores in Michigan; that Mr. Walton maintained his membership with lodges, clubs, and a church in Sturgis, Michigan; that Mr. Walton on various occasions exercised his civil and political rights in Sturgis, Michigan; and that Sturgis, Michigan was used in Mr. Walton's legal documents, including policies of insurance, mortgages, leases, contracts, and other instruments. Id. Ruling in favor of Mr. Walton, the court concluded that Mr. Walton did not change his domicile from Michigan to Indiana and his intangible property was not subject to certain Indiana taxes. Id. The court explained, in relevant part, that:

    The word "inhabitant," as used in our statute regulating the imposition of taxes, means "one who has his domicile or fixed residence in a place." "If the taxpayer has two residences in different states, he is taxable at the place which was originally his domicile, provided the opening of the other home has not involved an abandonment of the original domicile and the acquisition of a new one."

    No precise or exact definition of the term "domicile," which responds to all purposes, seems to be possible. It is the place with which a person has a settled connection for legal purposes, either because his home is there or because it is assigned to him by the law, and is usually defined as that place where a man has his true, fixed, permanent home, habitation, and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.

    Many cases collected in the works just cited have held that at times the cognate terms "residence" and "domicile" are synonymous, but many other cases there cited and quoted from have held that the two terms, when accurately used, are not convertible, but that there is a very clear and definite distinction between them. "Domicile," . . . "is a residence acquired as a final abode. To constitute it there must be (1) residence, actual or inchoate; (2) the nonexistence of any intention to make a domicile elsewhere." "The domicile of any person" . . . "is, in general, the place which is in fact his permanent home, but is in some cases the place which, whether it be in fact his home or not, is determined to be his home by a rule of law."

    "Residence is preserved by the act, domicile by the intention." "Domicile is not determined by residence alone" but upon a consideration of all the circumstances of the case . . . .

    Domicile is of three kinds-domicile of origin or birth, domicile by choice, and domicile by operation of law. . . . To effect a change of domicile, there must be an abandonment of the first domicile with an intention not to return to it, and there must be a new domicile acquired by residence elsewhere with an intention of residing there permanently, or at least indefinitely. Id. at 277-78.

    (Internal citations omitted) (Emphasis added).

    In State Election Bd. v. Bayh, 521 N.E.2d 1313 (Ind. 1988), the Indiana Supreme Court reiterated similar analysis and determined that Mr. Bayh met the residency requirement for the office of Governor because Mr. Bayh's domicile remained in Indiana even though Mr. Bayh moved to different states for various reasons for many years. Specifically, the court illustrated, in relevant part, that:

    Once acquired, domicile is presumed to continue because "every man has a residence somewhere, and . . . he does not lose the one until he has gained one in another place." Establishing a new residence or domicile terminates the former domicile. A change of domicile requires an actual moving with an intent to go to a given place and remain there. "It must be an intention coupled with acts evidencing that intention to make the new domicile a home in fact . . . . [T]here must be the intention to abandon the old domicile; the intention to acquire a new one; and residence in the new place in order to accomplish a change of domicile."

    A person who leaves his place of residence temporarily, but with the intention of returning, has not lost his original residence.

    Residency requires a definite intention and "evidence of acts undertaken in furtherance of the requisite intent, which makes the intent manifest and believable." A self-serving statement of intent is not sufficient to find that a new residence has been established. Intent and conduct must converge to establish a new domicile. Id. at 1317-18 (Ind. 1988).

    (Internal citations omitted) (Emphasis added).

    In this instance, during the protest process, Taxpayer claimed that Taxpayer moved to Florida after 2010. Taxpayer contends that Taxpayer was not an Indiana Resident because Taxpayer did the following: possessed a Florida Driver's license; purchased a residence in Florida; received mail in both Indiana and Florida; and registered to vote in Florida. However, during the period while Taxpayer was in Florida, Taxpayer retained the Indiana home. In order to change one's domicile from Indiana to an out-of-state location, the law requires the "intent of establishing a home at that place," 45 IAC 3.1-1-22, along with "acts evidencing [an] intention to make the new domicile a home in fact . . . ." Bayh, 521 N.E.2d at 1317. However, the law also requires a simultaneous manifestation of an intent to abandon the Indiana domicile. Bayh, at 1317. As the law states, "[A] person has only one domicile at a given time . . . ." 45 IAC 3.1-1-22. Significantly, Taxpayer retained full ownership of Taxpayer's Indiana home during all of 2012, and used the home as a residence. Taxpayer also continued to claim the Homestead Credit for the Indiana home. The Indiana Homestead Credit is for a "principal place of residence." By taking the credit, Taxpayer took advantage of the (typically) significant tax advantage attendant to claiming the credit. IC § 6-1.1-12-37(a)(2).

    In short, any individual who was domiciled in this state during the taxable year is a resident in this State. IC § 6-3-1-12(a). "A change of domicile requires an actual moving with an intent to go to a given place and remain there. 'It must be an intention coupled with acts evidencing that intention to make the new domicile a home in fact. . . . [T]here must be the intention to abandon the old domicile; the intention to acquire a new one; and residence in the new place in order to accomplish a change of domicile."' Bayh, 521 N.E.2d at 1317-18. Taxpayers' documentation demonstrated otherwise.

    FINDING

    Taxpayer's protest is respectfully denied.

    II. Tax Administration - Negligence Penalty.

    DISCUSSION

    Taxpayers requested that the Department abate the negligence penalty.

    Pursuant to IC § 6-8.1-10-2.1(a), the Department may assess a negligence penalty if the taxpayer:

    (1) fails to file a return for any of the listed taxes;
    (2) fails to pay the full amount of tax shown on the person's return on or before the due date for the return or payment;
    (3) incurs, upon examination by the department, a deficiency that is due to negligence;
    (4) fails to timely remit any tax held in trust for the state; or
    (5) is required to make a payment by electronic funds transfer (as defined in IC 4-8.1-2-7), overnight courier, or personal delivery and the payment is not received by the department by the due date in funds acceptable to the department.

    45 IAC 15-11-2(b) further states:

    "Negligence" on behalf of a taxpayer is defined as the failure to use such reasonable care, caution, or diligence as would be expected of an ordinary reasonable taxpayer. Negligence would result from a taxpayer's carelessness, thoughtlessness, disregard or inattention to duties placed upon the taxpayer by the Indiana Code or department regulations. Ignorance of the listed tax laws, rules and/or regulations is treated as negligence. Further, failure to read and follow instructions provided by the department is treated as negligence. Negligence shall be determined on a case by case basis according to the facts and circumstances of each taxpayer.

    The Department may waive a negligence penalty when "the taxpayer affirmatively establishes that the failure . . . was due to reasonable cause and not due to negligence." 45 IAC 15-11-2(c). The taxpayer "must demonstrate that it exercised ordinary business care and prudence in carrying out or failing to carry out a duty giving rise to the penalty imposed under this section." Id. The Department is mindful that "[r]easonable cause is a fact sensitive question and thus will be dealt with according to the particular facts and circumstances of each case." Id.

    In this instance, upon review, Taxpayer demonstrated that the steps Taxpayer took since 2010 led Taxpayer to reasonably believe Taxpayer relocated to Florida. Given the totality of the circumstances, the Department is prepared to agree that Taxpayer affirmatively demonstrated that Taxpayer's failure to file and to pay tax for the 2012 tax year was due to reasonable cause and not due to negligence. Taxpayer, however, is on notice that should similar circumstances arise the negligence penalty may not be abated.

    FINDING

    Taxpayer's protest of the negligence penalty is sustained.

    III. Tax Administration - Interest.

    DISCUSSION

    The Department assessed interest on the unpaid tax liabilities. Taxpayer requested that the Department waive interest.

    IC § 6-8.1-10-1(a) provides, in relevant part, as follows:

    If a person . . . fails to pay the full amount of tax . . . by the due date for the return or the payment, or incurs a deficiency upon a determination by the department, the person is subject to interest on the nonpayment.

    Pursuant to IC § 6-8.1-10-1(e), the Department does not have the authority to waive the interest.

    FINDING

    Taxpayer's protest of interest is respectfully denied.

    SUMMARY

    For the reasons discussed above, Taxpayer's protest of the Department's proposed assessment for the 2012 tax year is denied. Taxpayer's protest of the negligence penalty is sustained. Taxpayer's protest of interest is denied.

    Posted: 02/24/2016 by Legislative Services Agency

    DIN: 20160224-IR-045160071NRA
    Composed: Nov 01,2016 2:09:43AM EDT
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