stating that, “absent contrary indications,” individuals “moving to another state” are “routinely taxed as part-year residents” (emphasis added)
How later courts described this case
- stating that, “absent contrary indications,” individuals “moving to another state” are “routinely taxed as part-year residents” (emphasis added)
Written by the judges who cited it.
The opinion
SIMMS, Justice,
dissenting.
I respectfully dissent. I agree with the Sugloves that the Tax Commission’s order finding that they were residents of Oklahoma in 1975 is not supported by the evidence.
In deciding that the Sugloves did not show a change of domicile in 1975, the majority, in my opinion, places far too much importance on the events which took place in 1977. These events are too remote to decide the issue before us — which is whether the Sugloves acquired a new domicile in 1975.
The majority reasons that because the Sugloves ultimately left Jakarta in 1977, they did not intend in 1975 to make it their domicile. The implication is that in order for a change of domicile to be real and effective, a person must move with the intention of keeping the new domicile forever. This is not a requirement.
The intention which is important in this case is their intention in 1975. As the majority points out, to acquire a new domicile, there must be a concurrence of residence in the new locality with the intention to remain there (animus et factum). It is the intention at the time of the move which is important (animus manendi) 1
It is not necessary to the acquisition of a new domicile that the move be made with fixed determination to never leave after arriving; one may entertain a “floating” intention to go elsewhere, even to return to one’s original domicile.
Discussing this requisite intention in Gilbert v. David, 235 U.S. 561 , 35 S.Ct. 164 , 59 L.Ed. 360 , the Supreme Court stated:
“ ‘If a person has actually removed to another place, with an intention of remaining there for an indefinite time, and as a place of fixed present domicil, it is to be deemed his place of domicil, notwithstanding he may entertain a floating intention to return at some future period.’ ‘The requisite animus is the present intention of permanent or indefinite residence in a given place or country, or, negatively expressed, the absence of any present intention of not residing there permanently or indefinitely.’ [citations omitted]
* * * * * *
“It is apparent from all the testimony that the plaintiff may have had, and probably did have, some floating intention of returning to Michigan after the determination of certain litigation and the disposition of his property in Connecticut, should he succeed in disposing of it for what he considered it worth. But, as we have seen, a floating intention of that kind was not enough to prevent the new place, under the circumstances shown, from becoming his domicil. It was his place of abode, which he had no present intention of changing; that is the essence of domicil.”
In its reasoning, the majority appears to place too much emphasis on the word “permanent” as it is used in describing the *1322 requisite intention needed to establish a new domicile. As the majority points out, we have used the word as follows:
“To effect a change of residence or domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home.” Jones v. Burkett, Okl, 346 P.2d 338, 341 (1959).
In this context however, the word means indefinite rather than continuing forever. We have recognized the limitation of the word in this context on numerous occasions. In Jones v. Reser, 61 Okl. 46 , 160 P. 58 (1961) we set forth the following:
“There must be a settled, fixed abode, an intention to remain permanently, at least for a time, for business or other purposes, to constitute a residence within the legal meaning of that term.”
“The term ‘residence’ simply means a settled or fixed abode of a character indicating permanency, at least for an indefinite time. It signifies a party’s permanent home and principal establishment, to which, whenever he is absent, he hás the intention of returning.”
In Bixby v. Bixby, Okl., 361 P.2d 1075, 1078 (1961), we noted that:
“ ‘A person does not acquire a new domicile by merely going to another place with the intention of making it his domicile. He must go there not only with that intention, but also with the intention of residing there for a more or less definite time and of making it his home * * ’. This is referred to as ‘animus’.
* * * * * *
“ ‘Length of residence is not a factor where the act and the intent to acquire a domicile concur.’ ”
The confusion which sometimes arises from the use of the word permanent in discussing the intention necessary to acquire a new domicile, was discussed at length by the Third Circuit Court of Appeals in Gallagher v. Philadelphia Transp. Co., 185 F.2d 543 (1950), and the following is relevant here:
“While we concede that there is a good deal of rather ambiguous talk in the cases, some of which might arguably be taken to support this position, we think that it is incorrect. The emphasis of the court on the permanence of the anticipated attachment to a state, in our opinion, required too much of the plaintiff.
“There is substantial concurrence in the correctness of the negatively stated proposition that is the absence of an intention to go elsewhere which is controlling, [citations omitted] It is enough to intend to make the new state one’s home, [citations omitted] It is not important if there is within contemplation a vague possibility of eventually going elsewhere, or even of returning whence one came, [citations omitted] If the new state is to be one’s home for an indefinite period of time, he has acquired a new domicile, [citations omitted] Finally, it is the intention at the time of arrival which is important. The fact that the plaintiff may later have acquired doubts about remaining in her new home or may have been called upon to leave it is not relevant, so long as the subsequent doubt or the circumstance of the leaving does not indicate that the intention to make the place the plaintiff’s home never existed.”
See, also: Janzen v. Goos, 302 F.2d 421 (8 Cir. 1962); Unanue v. Caribbean Canneries, Inc., 323 F.Supp. 63 (D.C.Del., 1971).
The Sugloves either had the present intention, the animus manendi, to turn their Jakarta residence into their domicile in law or they didn’t. I believe the evidence fully supports their contention that they did. They may well have abandoned that domicile in 1977 and acquired a domicile in a foreign country or once again acquired domicile in Tulsa, but that question is not before us.
As I would reverse the Commission’s Order, I would not address those arguments concerning the permissibility of a differing standard or burden of proof between per *1323 sons who claim a new domicile in a foreign country and those who assert such a claim in a sister state.
. See, e. g„ Mitchell v. U.S., 21 Wall. 352, 22 L.Ed. 587 (1875); Burke v. Burke, 119 Okl. 254 , 249 P. 1110 (1926).