Gorski v. Dept. of Rev.

452 May 23, 2012 No. 55

IN THE OREGON TAX COURT

REGULAR DIVISION

Thomas W. GORSKI,

Plaintiff,

v.

DEPARTMENT OF REVENUE,

Defendant.

(TC 4971)

Plaintiff (taxpayer) appealed a Magistrate Division decision as to his tax

domicile for the 2004 and 2005 tax years, arguing that he was a part-year Oregon

resident for tax year 2004, and that he was not a resident of Oregon at all for

tax year 2005. Defendant (the department) in turn, argued that taxpayer never

abandoned his domicile in Oregon, never established a new domicile in either

Texas or Florida, and therefore continued to be a resident of Oregon throughout

the tax years at issue.

Trial was held July 25, 2011, in the courtroom of the

Oregon Tax Court, Salem

Plaintiff Thomas W. Gorski argued the cause pro se.

James C. Wallace, Senior Assistant Attorney General,

Department of Justice, Salem, argued the cause for Defen-

dant (the department).

Decision for Defendant rendered May 23, 2012.

HENRY C. BREITHAUPT, Judge.

I. INTRODUCTION

This case comes before the court for decision follow-

ing a trial in the Regular Division. Plaintiff (taxpayer) orig-

inally filed his personal income tax returns for the tax years

2004 and 2005 as a full-time resident of the state of Oregon.

Taxpayer now argues that he was in fact a part-year resi-

dent of Oregon during the 2004 tax year and a nonresident

during the 2005 tax year.

II. FACTS

At trial the court heard a great deal of testimony

concerning taxpayer’s activities and state of mind during

Cite as 20 OTR 452 (2012) 453

the 2004 and 2005 tax years. The following is an attempt to

condense that testimony.

A. Taxpayer’s Movements—1992 to Present

Taxpayer moved to Oregon from the state of

Washington in February of 1992. From February of 1992

through March of 2004, taxpayer lived at a house on Ewald

Avenue in Salem, Oregon, with his wife and stepson.

Taxpayer does not dispute that he was an Oregon resident

from February of 1992 through March of 2004.

In March of 2004, taxpayer left Oregon and moved

to El Paso, Texas. Taxpayer’s wife and stepson continued to

reside in the house on Ewald Avenue in Salem. Taxpayer

remained in Texas from March of 2004 through December

of 2004. In late December of 2004, taxpayer relocated to

Florida.

Taxpayer remained in Florida from roughly the

end of December 2004, through the beginning of October

2005. During this time, taxpayer lived variously in the cit-

ies of Clearwater (late December of 2004 through January

of 2005), Seminole (January through February 2005),

St. Petersburg (February through July 2005), and West

Palm Beach (July through October 2005).

In October of 2005 taxpayer returned to Oregon.

From October of 2005 through December of 2005, taxpayer

stayed with his spouse and stepson in the house on Ewald

Avenue in Salem. Taxpayer also appears to have made trips

to Anchorage, Alaska; Tucson, Arizona and West Palm

Beach, Florida, for job training purposes during this time,

though it is not entirely clear in the record how many days

taxpayer spent in Oregon and how many he spent out of

state during this period. At trial taxpayer testified that he

spent 45 days in Oregon during the tax year 2005. However,

in a document provided to Defendant (the department) by

taxpayer and entered in the record by the department as an

exhibit in these proceedings, taxpayer states that he spent

22 days at the house on Ewald Avenue. In another, later ver-

sion of the same document—this one entered in the record

by taxpayer—taxpayer claims to have spent 34 days at the

house on Ewald Avenue and an additional ten days doing job

training in Anchorage, Alaska and Tucson, Arizona.

454 Gorski v. Dept. of Rev.

In early December of 2005, taxpayer again left

Oregon and spent the following two months in Khartoum,

Sudan. From February of 2006 through the beginning of

June of 2006, taxpayer lived in Kabul, Afghanistan. In June

of 2006 taxpayer returned to Oregon to recover from a seri-

ous illness. Taxpayer remained in Oregon through January

of 2007.

In January of 2007, taxpayer again relocated—this

time to Utah. Taxpayer remained in Utah for roughly the

following 11 months, living in the cities of South Ogden

(January through July 2007) and Roy (July through

November 2007). In November of 2007 taxpayer returned

again to Oregon, where he continues to reside at the time of

writing.

B. Taxpayer’s Occupation and Employment

Taxpayer is a commercial jet aircraft pilot. At the

time taxpayer first left Oregon in March of 2004, taxpayer

was qualified to fly jet aircraft only as a first officer. At trial

taxpayer testified that it was his ambition to qualify to fly

jet aircraft as a captain, and that he lacked opportunities

to do so in Oregon. While living in both Texas and Florida,

taxpayer worked as an “on demand” charter pilot. The “on

demand” nature of this job required him to be on call 24 hours

a day and available for work on one hour notice, with only

4.3 days off per month.

Taxpayer continued to work as a first officer on

commercial jet aircraft while living in Texas and Florida.

Taxpayer testified that shortly after beginning work in

Texas, he concluded that the work environment would not

be conducive to his staying on as a long term employee.

Taxpayer therefore applied for several jobs in other parts

of the country. Many of these jobs would have required tax-

payer to relocate from Texas if he were to be hired.

After moving to Florida, taxpayer continued to work

toward his goal of becoming a commercial jet aircraft cap-

tain. Taxpayer also continued applying for jobs in various

parts of the country. At some point during taxpayer’s stay

in Florida, taxpayer accepted employment with Evergreen

International Airlines (EIA), based in McMinnville, Oregon.

Cite as 20 OTR 452 (2012) 455

In October or November of 2005, shortly after accepting

employment with EIA, taxpayer completed the training

and experience requirements necessary to qualify as com-

mercial jet aircraft captain. Taxpayer’s stays in Sudan

and Afghanistan during 2006 were in connection with his

employment by EIA. At the time of the trial in this case,

taxpayer continued to be employed by EIA.

C. Taxpayer’s Living Arrangements in 2004 and 2005

During the tax years 2004 and 2005, taxpayer’s

spouse and stepson remained in Oregon.1 During the tax

years in question, taxpayer’s spouse lived in a house on

Ewald Avenue in Salem. It is unclear whether taxpayer had

any legal interest in this house. Documents provided to the

department by taxpayer and entered in the record by the

department indicate that taxpayer “owned” the house on

Ewald Avenue, having purchased it “[o]ver [a] 5 year period

1991-1996.” However, in his briefing and at trial taxpayer

represented that the house belonged solely to his spouse and

that taxpayer did not have any interest in it. Taxpayer tes-

tified that he and his spouse have a joint checking account

at a bank in Salem that is used for the upkeep of the house

on Ewald Avenue. In his briefing taxpayer alleges that he

did not contribute to that account while living in Texas

and Florida. However, taxpayer admitted at trial that in

November of 2005, while staying in Salem with his spouse,

he drew on a checking account that he held jointly with

his spouse in order to pay the property tax for the house

on Ewald Avenue. Taxpayer further testified that he left

roughly 40 percent of his personal possessions at the house

on Ewald Avenue when he left for Texas.

While living in Texas, taxpayer rented an unfur-

nished apartment from a friend’s daughter’s acquaintance.

Taxpayer also opened a bank account at a Wells Fargo

branch in El Paso, Texas.

While living in Florida, taxpayer stayed at a num-

ber of locations. The exhibits entered in the record by tax-

payer indicate that over the course of roughly ten months

in Florida, taxpayer moved no fewer than four times. The

1

At trial, taxpayer stipulated to the veracity of this statement.

456 Gorski v. Dept. of Rev.

documents submitted by taxpayer indicate that during this

time taxpayer primarily rented rooms in furnished, occu-

pied homes. Taxpayer’s access to household amenities such

as kitchen or laundry facilities varied depending on his

landlord. Taxpayer testified that in one instance, at least,

he rented a furnished, unoccupied condominium with the

understanding that he was to vacate the premises when the

owner, who lived primarily in New York City, wished to use

the condominium. During one such interval, taxpayer used

his spouse’s address in Salem as his mailing address, in the

apparent belief that he would not reliably be able to collect

his mail while his landlord was using the condominium.

Taxpayer’s work as an on demand charter pilot pre-

vented him from visiting Oregon while he was working on

Texas and Florida. Taxpayer testified at trial that his spouse

occasionally travelled from Oregon to visit him. Taxpayer

also states in his briefing that he made occasional visits to

Oregon to convince his spouse to move to Florida with him,

but the number and frequency of any such visits cannot be

discerned from the record before the court.

D. Taxpayer’s other Connections to Oregon, Texas, and

Florida

Throughout 2004 and 2005, taxpayer was regis-

tered to vote in Oregon. Taxpayer likewise continued to use

his Oregon driver’s license throughout his time in Texas.

Taxpayer testified that in January of 2005—roughly one

month after moving to Florida—taxpayer was cited by a

Florida law enforcement officer for driving without a valid

Florida driver’s license. Taxpayer subsequently obtained a

Florida driver’s license, but retained his unexpired Oregon

driver’s license as well. In addition, taxpayer’s Florida driver’s

license lists the house on Ewald Avenue in Salem as his

address.

The record contains little information about tax-

payer’s ties to Texas beyond what has been stated above.

Documents submitted to the department by taxpayer and

entered in evidence by the department indicate that while

living in Texas, taxpayer belonged to the congregation of

St. Patrick’s Cathedral in El Paso, Texas.

Cite as 20 OTR 452 (2012) 457

The record does, however, contain evidence tend-

ing to show that taxpayer has additional ties to Florida.

Specifically, taxpayer has a brother that lives in Florida and

his deceased parents are buried in Florida. In addition, tax-

payer acquired a model year 1993 Ford Taurus while living in

Florida, that taxpayer registered and insured in Florida. In a

document entered in the record by taxpayer, taxpayer states

that because he planned to return to Florida, he left that

vehicle in Florida with a friend when he returned to Oregon

in October of 2005. Taxpayer claimed membership in several

social and religious organizations while living in Florida,

including the congregations of St. Anne Catholic Church in

West Palm Beach; the Cathedral of St. Jude the Apostle in

St. Petersburg; the Tampa Friends of Old Time Dance; the

Alano Beach Club, and the Ft. Lauderdale Meditation Group.

While living in both Texas and Florida, taxpayer

ensured that his personal vehicles were insured on in-state

policies. Taxpayer also appears to have kept his Federal

Aviation Administration documentation up to date with

regard to changes of address.

E. Taxpayer’s Oregon Tax Returns for the 2004 and 2005

Tax Years

For the 2004 and 2005 tax years, taxpayer initially

filed joint Oregon Income Tax returns with his spouse as a

full time Oregon resident. In both years the joint, full-year

resident returns resulted in Oregon Income Tax liability.

In April of 2007, taxpayer filed amended Oregon

Income Tax returns for the 2004 and 2005 tax years, this

time filing as a part-year resident of Oregon and claiming

“married filing separately” filing status on both returns.

These amended returns, if accepted, would have effectively

eliminated taxpayer’s Oregon Income Tax liability for both

the 2004 and 2005 tax years.

In January of 2008, taxpayer again filed amended

Oregon Income Tax returns for the 2004 and 2005 tax

years. This time, taxpayer filed as a part-year resident and

claimed “married filing jointly” filing status. These returns,

if accepted by the department without adjustment, would

have resulted in substantial refunds for both 2004 and 2005.

458 Gorski v. Dept. of Rev.

On September 25, 2008, the department sent a let-

ter to taxpayer requesting additional information and pro-

vided taxpayer with a document entitled “Legal Residence

(Domicile) Questionnaire.” On October 3, 2008, taxpayer

responded to the department by letter indicating that the

questionnaire provided by the department did not contain

sufficient space to describe his movements during the 2004

and 2005 tax years. Taxpayer enclosed with this letter a

document containing the information asked for in the ques-

tionnaire, but somewhat altered in format to permit him

to more fully describe his movements. On October 7, 2008,

taxpayer sent a second letter to the department with a sec-

ond taxpayer-prepared version of the domicile questionnaire

enclosed. A comparison of these two documents reveals sev-

eral discrepancies in their content. For the purposes of this

opinion, the court will refer to the first taxpayer-produced

document as “taxpayer’s first domicile questionnaire” and

the second taxpayer-produced document at “taxpayer’s sec-

ond domicile questionnaire.”

Upon review of the information provided by tax-

payer, the department concluded that taxpayer was domi-

ciled in Oregon for the entirety of the 2004 and 2005 tax

years, and therefore issued notices of proposed adjustments

denying taxpayer’s claims for refunds and advising taxpayer

of his right to a conference or to submit written objections

to the proposed adjustment. Taxpayer opted to submit writ-

ten objections, that the department denied in a letter dated

July 10, 2009. Taxpayer then appealed to the Magistrate

Division.

The magistrate found for the department on the

grounds that taxpayer (a) failed to show that taxpayer had

abandoned his domicile in Oregon; and (b) failed to show that

taxpayer had established a new domicile, either in Texas or

Florida. Gorski v. Dept. of Rev., TC-MD No 091291B (Nov 24,

2010). Taxpayer now appeals to the Regular Division.

At trial in the Regular Division, taxpayer advanced

a slightly different argument than he had in the Magistrate

Division. Whereas in the Magistrate Division taxpayer

argued that he was a part-year Oregon resident both in

the tax year 2004 and in the tax year 2005, taxpayer now

Cite as 20 OTR 452 (2012) 459

argues that he was a part-year Oregon resident only in the

tax year 2004. As to the tax year 2005, taxpayer now argues

that he was not a resident of Oregon at all during that tax

year.

III. ISSUE

What was taxpayer’s residency status in Oregon

during the tax years 2004 and 2005?

IV. ANALYSIS

ORS 316.037(1)(a) imposes a “tax * * * on the entire

taxable income of every resident of this state.” ORS 316.037(2)

likewise imposes a “tax * * * upon the entire taxable income

of every part-year resident of this state.”2 However, ORS

316.037(2) further provides that in the case of a “part-year

resident” the tax is to be calculated “as if the part-year res-

ident were a full-year resident” and then multiplied by a

ratio that reflects the number of days in the given tax year

that the part-year resident taxpayer spent as a resident of

Oregon, versus the number of days spent as a nonresident.

This typically results in a lower Oregon income tax liability

for part-year residents of Oregon than would otherwise be

the case for a similarly situated full-year resident.

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 elsewhere;

and

“(iii)     Spends in the aggregate not more than 30 days in the

taxable year in this state[.]”

ORS 316.022 (5) defines a “part-year resident” as “an individ-

ual taxpayer who changes status during a tax year from resi-

dent to nonresident or from nonresident to resident.” Phrased

differently, an individual is a resident of Oregon if that

individual is domiciled in Oregon, unless the taxpayer falls

2

All references to the Oregon Revised Statutes (ORS) are to the 2007 edition.

460 Gorski v. Dept. of Rev.

within the safe haven provided by ORS 316.027(1)(a)(A)(i)

to (iii). An individual is a part-year resident of Oregon for

a given tax year if that individual’s status as a resident of

Oregon or as a nonresident of Oregon changes during that

tax year.

A. Taxpayer’s Domicile during the 2004 and 2005 Tax Years

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 2004.) 3 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

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 an inten-

tion merely to settle in a new place at some uncertain point

in the remote future. Id.

In addition, the intention cannot be conditioned

on the occurrence or nonoccurrence of some future event

or contingency. Id. This is because a contingent intention

to abandon one’s current domicile and acquire a new one is

merely an intention to abandon one’s current domicile and

acquire a new domicile if certain occurrences should come to

pass. If those occurrences should not take place, or if other,

then-unforeseen occurrences take place, there is no inten-

tion to abandon the old domicile and acquire a new one. Id.

at 64-65.

3

At trial taxpayer testified that the term “domicile” has a somewhat differ-

ent definition in airline industry jargon. Taxpayer did not, however, argue that

the court should apply that definition of “domicile” in the present case.

Cite as 20 OTR 452 (2012) 461

Taxpayer does not dispute that from January through

March of 2004, taxpayer was domiciled in Oregon. Taxpayer

argues, in essence, that when he moved from Oregon to Texas

in March of 2004 he ceased to be a domiciliary of Oregon

and became a domiciliary of Texas; and that when he moved

from Texas to Florida in December of 2004 he ceased to be

a domiciliary of Texas and became a domiciliary of Florida.

Taxpayer does not believe—at this stage in the proceed-

ings, at any rate—that he once again became a domiciliary

of Oregon when he left Florida and returned to Oregon in

October of 2005 because, taxpayer asserts, his social, finan-

cial, and personal affairs were still centered on Florida.

The department, in turn, argues that taxpayer

never abandoned his domicile in Oregon, never established

a new domicile in either Texas or Florida, and therefore con-

tinued to be a resident of Oregon throughout the tax years

2004 and 2005.

This case is before the court on taxpayer’s appeal

from the decision of the magistrate. Taxpayer is therefore

the “party seeking affirmative relief,” and bears the burden

of proving his allegations by a preponderance of the evi-

dence. ORS 305.427.

Taxpayer’s testimony at trial was to the effect

that he had numerous reasons for leaving Oregon. These

included, among other things, intra-family frictions and

what can only be described as a generalized disgust with

the idea of continuing to live in Oregon. The court sees no

reason to doubt the existence of these factors, but taxpayer’s

testimony that they led him (a) to resolve to permanently

leave Oregon; and (b) to resolve to permanently move either

to Texas or to Florida, is not sufficient on its own to carry

the burden of proof.

Taxpayer correctly notes that when something as

subjective as the presence or absence of a particular intent

is at issue, the court cannot simply rely on an individual’s

own potentially self-serving testimony as to that very same

individual’s state of mind. Instead, the court must look at

the objective circumstances surrounding taxpayer’s various

moves during the 2004 and 2005 tax years to discern whether

taxpayer more likely than not intended to permanently

462 Gorski v. Dept. of Rev.

abandon his domicile in Oregon and establish a new perma-

nent home—either in Texas or in Florida. Hudspeth v. Dept.

of Rev., 4 OTR 296, 298 (1971.)

The court finds the following facts to be particularly

probative of this issue. Taxpayer resided with his spouse and

stepson at the house on Ewald Avenue for 12 years, from

February of 1992 to March of 2004. In both taxpayer’s first

domicile questionnaire and taxpayer’s second domicile ques-

tionnaire, taxpayer identified his desire to become a captain

of jet aircraft and his lack of opportunities to accrue required

experience as his primary reasons for leaving Oregon in

March of 2004.4 While living in Florida and Texas, taxpayer

took jobs that permitted him to attain the necessary experi-

ence, but which also, as a practical matter, required him to

stay near his workplace. In both of taxpayer’s domicile ques-

tionnaires, taxpayer stated that this work schedule was the

major reason he had not made any visits of any significant

length to Oregon in the 2004 and 2005 tax years. In October

of 2005, just prior to completing the experience necessary

for work as a captain of jet aircraft, he accepted employment

with an airline that happened to be based in Oregon. At

this same time, taxpayer returned to Oregon and lived in

the house on Ewald Avenue with his spouse for roughly six

weeks, before departing for Sudan and Afghanistan on EIA

business. When taxpayer returned to the United States for

health related reasons in June of 2006, he once again stayed

with his spouse at the house on Ewald Avenue. Finally, in

the end, taxpayer evidently overcame whatever revulsion he

may have felt earlier and returned to live in Oregon, where

he continued to live at the time of the trial in this case.

The objective circumstances of taxpayer’s move-

ments during the tax years 2004 and 2005, and in the years

beyond, are consistent with the department’s theory that

taxpayer moved to Texas, and subsequently to Florida, for

the limited purpose of attaining the experience necessary

for work as a captain of jet aircraft.

4

In his briefing, taxpayer attempts to disavow statements contained in tax-

payer’s first and second domicile questionnaires, stating that they “did not accu-

rately reflect [taxpayer’s] intention.” The court finds it more likely that taxpayer

now realizes that he made statements in the domicile questionnaires that are

contrary to the legal theory his case is premised upon.

Cite as 20 OTR 452 (2012) 463

Some of the correspondence submitted into evi-

dence by taxpayer to support his own case further supports

the department’s argument. For example, in an email from

taxpayer to a potential landlord, taxpayer describes him-

self as “a Learjet pilot in the Tampa Bay area for at least

one year,” and states that he is “working in Clearwater,

[Florida] in order to acquire a specific amount of experience

in a particular type of aircraft.” The phrasing in this email

to the effect that taxpayer was staying in the Tampa Bay

area “for at least one year,” of course, seems to indicate an

openness to staying on longer if the right conditions were to

present themselves. However, the above quoted text clearly

indicates that taxpayer was in the Tampa Bay area with a

specific purpose in mind. There is very little in the record

tending to show that taxpayer saw remaining in Florida

after accomplishing that goal as anything more than one of

several possible alternatives.

Taxpayer has provided the court with an extensive

listing of the places taxpayer has lived over the course of

his life and of the durations of his stays at each location.

Based upon the number and frequency of the moves doc-

umented in this listing, and upon taxpayer’s testimony at

trial, it seems entirely in character for taxpayer to move,

first to Texas, and then later to Florida, in the speculative

hope of furthering his ambitions of becoming a captain of jet

aircraft. However, it would also seem entirely in character

for taxpayer to leave unresolved plans regarding what to do

and where to go when he accomplished that goal.

In short, taxpayer’s continued connections to

Oregon, his taking employment with an Oregon based

employer upon achieving his goal of becoming a captain of

jet aircraft, his stays in Oregon after accepting employment

with EIA, and his eventual—and at the time of trial, at

least, evidently permanent—return to Oregon weigh heav-

ily in favor of the notion that taxpayer moved to Texas, and

subsequently to Florida, for the limited purpose of acquir-

ing the experience necessary to achieve an apparently long

held career goal, and with no clear intention of permanently

staying in either of those states.

464 Gorski v. Dept. of Rev.

That is not necessarily to say that taxpayer’s ulti-

mate plan was to return to Oregon upon achieving that goal,

however. That, at any rate, is not entirely clear, though the

weight of the evidence before the court goes in that direc-

tion. What is clear, however, is that any desire of taxpayer

to make either Texas or Florida his permanent home during

either the 2004 or 2005 tax years depended on his ability to

obtain work as a captain of jet aircraft while living in that

state after attaining the experience necessary for that posi-

tion. That is to say, taxpayer’s intentions, such as they were,

appear to have been contingent, and a contingent inten-

tion to establish a permanent home in another state does

not result in abandonment of an individual’s current domi-

cile. Taxpayer therefore remained a domiciliary of Oregon

during the 2004 and 2005 tax years.

B. Applicability of the ORS 316.027(a)(A) “safe harbor”

As was discussed above, under ORS 316.027(a)(A)(i)

to (iii) an individual who is domiciled in Oregon might still

qualify for treatment as a nonresident of Oregon if that per-

son (a) maintains no permanent place of abode in this state;

(b) does maintain a permanent place of abode elsewhere;

and (c) spends in the aggregate not more than 30 days in

the taxable year in Oregon. This safe harbor, however, is not

available to taxpayer.

First, taxpayer has failed to carry the burden of

showing that he did not maintain a “permanent place of

abode” in Oregon during the tax years 2004 and 2005. Like

“domicile,” “permanent place of abode” is not defined in

Oregon’s tax statutes. The department proffers a reasonable

definition in its rules implementing ORS 316.027:

“‘Permanent place of abode’ means a dwelling place perma-

nently maintained by the taxpayer, whether or not owned

by the taxpayer, and generally includes a dwelling place

owned or leased by the taxpayer’s spouse. 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). The difference between a perma-

nent place of abode and a domicile is that whereas everyone

Cite as 20 OTR 452 (2012) 465

has one—and only one—domicile, an individual can have

more than one permanent place of abode or no permanent

place of abode at all. See OAR 150-316.027(b)(D).

It is clear that from February of 1991 through

March of 2004, taxpayer had a permanent place of abode in

Oregon—namely, at the house on Ewald Avenue. However,

it is not clear on the record before the court whether or not

the house on Ewald Avenue ceased to be a permanent place

of abode of taxpayer when he moved from Salem, Oregon

to El Paso, Texas. Taxpayer testified at trial that he and

his spouse had a joint checking account for use in main-

taining the house. Taxpayer claims in his briefing that he

did not contribute to this account while living in Texas and

Florida, but taxpayer did admit to paying the property tax

for the house on Ewald Avenue while staying at the house in

November of 2005. Finally, while taxpayer testified at trial

and in his briefing that he had no legal interest in the house

on Ewald Avenue, he nonetheless stated in both taxpayer’s

first domicile questionnaire and taxpayer’s second domicile

questionnaire that he owned the house and had acquired

his interest over the course of a five year period running

from 1991 through 1996. This would seem to indicate that

at the time taxpayer prepared his first and second domicile

questionnaires, he considered the house on Ewald Avenue to

have been continuously “his” while he was living in Texas

and Florida. The evidence before the court favors the notion

that the house remained a permanent place of abode for

taxpayer.

In addition, taxpayer has not carried the burden

of proof in showing that he ever established a permanent

place of abode in any place other than Oregon. Taxpayer

took a considerable step in the direction of establishing a

permanent place of abode when he leased an unfurnished

apartment upon moving to El Paso, Texas. However, taxpay-

er’s relatively short stay in Texas, coupled with the fact that

he continued looking for work in other parts of the county

while living in Texas, weighs heavily against the notion that

taxpayer’s apartment in El Paso amounted to a permanent

place of abode.

466 Gorski v. Dept. of Rev.

Taxpayer likewise did not establish a permanent

place of abode in Florida. Indeed, by renting rooms in fur-

nished homes taxpayer most likely avoided a good deal of

the expense and investment commonly associated with set-

ting up a new permanent dwelling place.

Finally, taxpayer has not shown by a preponderance

of the evidence that he spent less than 30 days in Oregon

during either the 2004 tax year or the 2005 tax year. It is

undisputed that taxpayer spent more than 30 days in Oregon

during the 2004 tax year. Taxpayer lived at the house on

Ewald Avenue from January through March of 2004.

Likewise, while it is not clear exactly how many

days taxpayer spent in Oregon during the 2005 tax year,

taxpayer bears the burden of proving that it was less than

30. Here, taxpayer has provided three separate figures for

the number of days that he spent in Oregon during the 2005

tax year: 45, 34, and 22. Nothing in the record particularly

corroborates any of these figures. The court therefore rules

that taxpayer has not shown that he spent less than 30 days

in Oregon during the 2005 tax year. Taxpayer therefore does

not meet any of the requirements of ORS 316.027(a)(A)(i)

to (iii).

V. CONCLUSION

A preponderance of the evidence presented at trial

indicates that taxpayer did not intend to permanently aban-

don his domicile in Oregon either when he first moved to

Texas, or subsequently when he moved to Florida.

Moreover, regardless other factors that may have

led taxpayer to move from Oregon to Texas in March of

2004, taxpayer’s primary motivation for doing so was to fur-

ther his goal of becoming a captain of jet aircraft. Taxpayer’s

intentions, if any, of establishing a permanent home in either

Texas or Florida during the 2004 and 2005 tax years were

contingent on taxpayer’s ability to secure employment as a

captain of jet aircraft in either of those states after achiev-

ing his goal. Taxpayer therefore never established a domi-

cile in either Texas or Florida.

Cite as 20 OTR 452 (2012) 467

Finally, taxpayer’s circumstances during the 2004

and 2005 tax years do not qualify him for the “safe harbor”

provided by ORS 316.027(a)(A)(i) to (iii). Now, therefore,

IT IS THE DECISION OF THIS COURT that tax-

payer was a full-year resident of the state of Oregon during

the tax years 2004 and 2005.