Trusts and Estates

Ca. Trs. & Estates Quarterly 2015, Volume 21, Issue 3


Individual California tax residency cases are intensely factual in nature. Indeed, because the Franchise Tax Board views residency as a question of fact, not law, the Franchise Tax Board will not issue written advice on whether an individual is a resident for a particular period of time.i The legal analysis begins with the statute. California Code of Regulations section 17014(a) defines "resident" to include:

Any individual who is not a resident is, by statutory definition, a non-resident.iii Presence within California for more than nine months of a taxable year creates a rebuttable presumption of California residence.iv However, presence within California for less than nine months does not create a presumption of non-residency.v

"Domicile" is a part of the definition of resident, but the concepts are not synonymous. Domicile has been defined by the courts as the "one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning . . . "vi Similarly, the Franchise Tax Board regulations provide as follows:

Accordingly, domicile denotes the one location with which a person has the most settled and permanent connections and where the person intends to remain, while residence denotes any factual place of abode of some permanency; that is, "more than a mere temporary sojourn."viii A taxpayer may have several residences simultaneously for different purposes, as well as more than one residence for tax purposes. However, a taxpayer may have only one domicile at any given time.ix A domicile cannot be lost until a new one is acquired.x Once acquired, a domicile is presumed to continue until it is shown to have changed.xi

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