Arthur Altman v. Commissioner of Revenue (May 17, 2013)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD

ARTHUR ALTMAN 	        v.	 COMMISSIONER OF REVENUE	 
 							 		   
Docket No. C308534 				 Promulgated:
							 May 17, 2013
				   

This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62C, § 39(c) from the refusal of the appellee, Commissioner of Revenue ("Commissioner" or "appellee"), to grant an abatement of personal income tax and interest assessed to the appellant, Arthur Altman ("appellant" or "Mr. Altman") for the tax years ended December 31, 2005 and December 31, 2006 ("tax years at issue").
Commissioner Scharaffa heard this appeal and was joined by Chairman Hammond and Commissioners Rose, Mulhern and Chmielinski in a decision for the appellee for tax year 2005 and in a decision for the appellant for tax year 2006.  
The findings of fact and report are made pursuant to requests by the appellant and the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32.  

Edward DeFrancheschi, Esq. and Andrew Kosinski, Esq. for the appellant.

Celine Jackson, Esq. and Kajal W. Chattopadhyay, Esq. for the appellee.	
FINDINGS OF FACT AND REPORT
On the basis of a Statement of Agreed Facts and the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
In accordance with valid extensions, the appellant filed his 2005 and 2006 Massachusetts nonresident income tax returns on October 1, 2006 and October 3, 2007, respectively.  At all relevant times, Mr. Altman was married but filed under the married-filing-separately status, because his wife was a Massachusetts resident during the tax years at issue, and Mr. Altman filed as a nonresident.  On July 27, 2009, following an audit, the Commissioner informed the appellant of her determination that the appellant was domiciled in Massachusetts during the tax years at issue.  On July 28, 2009, the Commissioner issued a Notice of Intent to Assess proposing to assess a tax of $99,302 plus interest for the 2005 tax year and $50,330 plus interest for the 2006 tax year.  Subsequent to a pre-assessment conference, by Notice of Assessment dated March 16, 2010, the Commissioner assessed the following amount of tax and interest for the tax years at issue:

Tax year	Tax	Interest	Total	
December 31, 2005	$ 99,302.00	$30,433.30	$129,735.30	
December 31, 2006	$ 50,330.00	$ 9,767.04	$ 60,097.04	
 TOTAL	$149,632.00	$40,200.34	$189,832.34	

On April 15, 2010, the appellant filed an abatement application with the Commissioner seeking abatement of the additional taxes assessed for the tax years at issue.  The Commissioner denied the abatement request by a Notice of Determination dated May 7, 2010.  On July 6, 2010, the appellant filed a Petition Under Formal Procedure with the Board.  On the basis of the foregoing, the Board found and ruled that it had jurisdiction over this appeal. 
Background information.
Mr. Altman was born in 1929 in New York City.  He grew up and attended high school in Brooklyn.  Mr. Altman attended Franklin and Marshall College in Lancaster, Pennsylvania for two years and then attended Columbia School of Social Studies for one summer, Columbia Business School for one year and then Columbia Law School, where he graduated in 1949.  
After school, Mr. Altman worked in New York briefly, and then moved to Massachusetts in 1951 where he joined the Massachusetts law firm of Nathanson & Rodolfski.  The law firm later changed its name to Lane & Altman, with the appellant as a named senior partner.  The appellant remained senior partner until 1982, when he entered into an agreement with the firm's management pursuant to which his name remained in the firm's title, but he was no longer involved in the management of the firm.  Mr. Altman retired, to the best of his recollection, in about 1999 or 2000, because his deteriorating health made working very difficult for him.
The appellant's health.
In 1995, Mr. Altman was diagnosed with Sjogren's Syndrome, an auto-immune disorder.  As a result of his disorder, Mr. Altman suffers from serious fatigue and his concentration is limited.  Mr. Altman testified that the loss of concentration was the reason for his retirement.  Other symptoms of Sjogren's Syndrome that Mr. Altman endures are progressive osteoarthritis and rheumatoid arthritis.  He also suffers from cervical spondylosis, which has required him to undergo three back surgeries.  
Mr. Altman testified that he does not fare well living in a climate with cold, snowy and icy conditions.  He is afraid of falling and further injuring himself, and the cold also causes him to shiver, which worsens his arthritis pain.  He further testified that any attempt at living a normal life in the Northeast year-round would be futile, because he would need to stay indoors as a "shut-in" during the colder months.  Accordingly, because Mr. Altman spends all but the warmer months in his home in Lake Worth, Florida, he claimed to be domiciled in Florida during the tax years at issue.  
The appellant's family relations.
In 1981, Mr. Altman married his current wife, Nancy Altman.  Mrs. Altman was born in Massachusetts and has always been a Massachusetts resident.  The appellant and his wife both have grown children from previous marriages.  Mr. Altman has three children - Murray (age 59), who lives in Newton; Marjorie (age 48), who lives in Boston; and Paul (age 46), who lives in Sarasota, Florida.  Mr. Altman also has two grandchildren, one living in Newton and the other living in New York.  Mr. Altman stated that he is very close to his children.  Mrs. Altman also has two children, Maryann and Patrick, who both live in Massachusetts.
Mrs. Altman works as a licensed clinical social worker and maintains a private practice in Massachusetts.  She has a Massachusetts professional license, and she has not applied for or obtained a professional license from Florida because she does not have any patients in Florida.  The appellant is not legally separated from his wife.  

The couple's real properties.
After their marriage, the couple first lived on Berkeley Street in Boston until 1995, when they moved to their current home in Newton.  The Newton home is a two-story three-bedroom residence that was previously a stable with a finished living area of 2,364 square feet.  During the tax years at issue, the Newton home was assessed at $1,291,900 and $1,356,000, respectively.  All of the artwork owned by the appellant and his wife is located at the Newton property. 
Since December of 1983, the Altmans have also owned a property in Phillipston, Massachusetts.  The Phillipston property is a 50-acre estate that includes a main residence, a guest house, a caretaker house, a stable, a garage, and a tennis court.  A caretaker lives on the property.  During the tax years at issue, the Phillipston property was assessed at $843,100 and $1,067,600, respectively. 
On October 30, 1998, the couple purchased a parcel of land in Lake Worth, Florida, and they had a home built on the land, which was completed in 2002.  The Florida home is a one-level, three-bedroom residence with a pool and is located within a gated community.  Mrs. Altman testified that she furnished the Florida home, because the appellant had no interest in furnishing a home.  The furnishings at the Lake Worth, Florida home have not changed from 2002 up to and including the tax years at issue.  During the tax years at issue, the Florida home was assessed at $403,357 and $478,879, respectively.  
The homeowner's policies from periods subsequent to the tax years at issue indicate that the Florida home was insured as a seasonal residence even after the tax years at issue.  When asked why he never notified the insurance agent that he had permanently moved to Florida, Mr. Altman testified, "I don't pay any attention to those things," and that his insurance agent who handles his paperwork is "a good friend of mine and I trust him."
The Altmans' lifestyle.
By 2001, Mr. Altman had retired from practicing law and from business activities other than investment activities.  As the appellant's Sjogren's Syndrome progressed, he became increasingly unhappy spending winters in Massachusetts.  Mr. Altman testified that he had a history of vacationing in Florida even before the completion of the Florida home in 2005.  He testified that he joined The Falls Country Club in Lake Worth in about 1993.  Mr. Altman readily testified that his decision to change his domicile did not neatly coincide with the beginning of the tax years at issue, but that he had actually considered his home to be in Florida even before that time:  
Q:  What changed at the end of 2004 that caused you to move your permanent residence to Florida?
A:  I can't honestly say it was the end of 2004.  Starting in the year 2000, 1999, somewhere around there, my health started to deteriorate.
	And at some point during that period of time I reached a decision that I simply couldn't stay in Massachusetts during the winter months.  And so I had to make a choice to live elsewhere.

	The appellant explained that it was not feasible for his wife to relocate to Florida with him, because she is considerably younger than he and was not ready to retire from her profession.  The couple thus reached an agreement that the appellant would spend the colder months in Florida and then "visit" his wife back in Massachusetts "as soon as the weather starts to get warmer." With respect to holidays, the appellant testified that he typically spent the Thanksgiving holiday in Florida with his family visiting him there, and he spent the Christmas season with family at the Phillipston home.
The appellant testified that he has a very strong and loving relationship with his wife, who is "my life."  He stated that he was at times "miserable" without her in Florida.  Mrs. Altman testified that she traveled to Florida as often as she could when the appellant was staying there, routinely spending about ten days during every two-week period with him in Florida, and remaining at home to tend to her practice the remaining four out of fourteen days.  She further testified that, during the summer months, she would work three days a week and the couple would spend the remaining four days at their summer home in Phillipston. 
The Altmans had an active social life during the tax years at issue.  In Massachusetts, the appellants were members of the Pine Brook Country Club in Weston, where they had been members since about 1990.  Mr. Altman testified, however, that he did not have many friends in Massachusetts any longer, because many of them had either passed away or had moved to Florida.  Mrs. Altman testified that the couple did occasionally dine with friends in Massachusetts.  She further testified that the couple spent much of their time in Massachusetts with their family at the Phillipston home.  
Mr. Altman testified that, in Florida, he was very involved at The Falls Country Club, where he would play cards, have lunch or dinner and visit with fellow members almost six days a week.  He further explained that he would attend the country club less frequently when Mrs. Altman was visiting him, but still attend about four times a week.  
The appellee introduced the appellant's telephone records into evidence.  The record of telephone calls originating from the Florida residence's landline during the tax periods at issue indicate that about 90% were to a Massachusetts telephone number, while only 4% were to a Florida telephone number.  The appellant explained that the reason for this disparity was that he used his telephone to call his family long-distance in Massachusetts; by contrast, he would socialize at The Falls Country Club and therefore have no need to make telephone calls to friends in Florida.  Mrs. Altman further explained that she would at times use the appellant's telephone to check her work-related messages.  
The appellant's investment activities.
During the tax years at issue, the appellant was active in various investment activities.  He served as the President and 80% shareholder owner of DNB Corp. ("DNB"), a Massachusetts corporation whose only activity was investing.  Mr. Altman testified that he conducted DNB's business wherever he was located.  Mr. Altman also pursued investment activities with Venture Management, a joint venture located in Newton, where he maintained a cubicle during the tax years at issue.  The appellant testified that he used this space to store paperwork from "50 some years of investing." 
During the tax years at issue, the appellant also owned investment accounts with Merrill Lynch, with its office located in Wellesley, Massachusetts, and several investment funds with Bank of America.  He also jointly owned with his wife a bank account and a safe deposit box at Citizens Bank in Newton.  The Citizen's Bank statements were all mailed to the Newton home.  The appellant maintained no bank accounts in Florida.  He testified that he saw no need to switch his accounts to Florida banks or investment firms, as he conducts his investment and banking business through advisors, either by telephone or over the internet.  He explained that the Massachusetts safe deposit box contains some of Mrs. Altman's jewelry and she is a Massachusetts resident.
Various ministerial acts.
The appellant admitted that he never changed the registration of his vehicles from Massachusetts.  When asked, he replied, "I just never bothered.  I didn't realize the Commonwealth was going to be that picky to be honest with you."  The appellant obtained a Florida driver's license on January 10, 2006.  
The Newton Election Commission stated in a letter entered as evidence that the appellant was registered to vote in Newton in 2005 and 2006.  When asked about this at the hearing, the appellant stated that he went to the Newton Election Commission's offices in July of 2011 to inquire about his registration status and was told that he was no longer registered to vote in Newton.  Another letter from the Newton Election Commission, dated July 12, 2011, stated that the appellant's last voter activity in Newton was on November 5, 2002.  On January 10, 2006, the same day that he obtained a Florida driver's license, the appellant registered to vote in Florida.  
On May 16, 2005, the appellant gave a check in the amount of $150.00 to the Committee to Elect Joan Menard.  When asked at the hearing about this political contribution, the appellant testified that he did not know who Joan Menard was, and he believed "[p]robably someone asked me" to make this contribution, so he obliged.  The contribution was made by check from the appellant's Citizen's Bank account, which he held jointly with his wife, and the Office of Campaign and Political Finance's records reflect a Massachusetts address associated with his political contribution.  

The appellant's tax returns.
The appellant's federal and state income tax returns, including the Massachusetts returns for the tax years at issue as well as several non-resident tax returns for other states, were prepared by Jeffrey Kellem, a certified public accountant with Litman Gerson Associates.  The 2005 state tax returns filed by the appellant -- Alabama, Georgia, Kentucky, Maryland, New York, and Pennsylvania -- listed the appellant's address as the Newton home, while the 2005 returns for Massachusetts and federal both listed the Florida home as the appellant's address.  For all of the appellant's 2006 state and federal returns, the appellant's address was listed as the Florida home.   
Mr. Kellem testified at the hearing of this appeal.  He stated that his office inadvertently filed the appellant's returns using the Newton home as his address, because his practice's tax preparation software automatically carries over a taxpayer's information from the previous year's returns, and the tax preparer failed to correct the appellant's address on the 2005 returns, other than the Massachusetts and federal returns. 
Mr. Kellem's office also prepared 2005 and 2006 Massachusetts Form 2G-Grantor's/Owner's Share of a Grantor-Type Trust for the Arthur Altman Trust.  The address of the Arthur Altman Trust is P.O. Box 5122, Boston, Massachusetts.  The return address is c/o Venture Management in Newton, Massachusetts, at the office where the appellant stores his investing paperwork.
The appellant did not file any Florida intangibles tax returns for the tax years at issue.  Mr. Kellem testified that his office reviewed the filing requirements for 2005 and 2006 and it was his belief that the Florida intangible personal property tax was repealed for 2005 and 2006.  Mr. Kellem testified that he advised the appellant of this determination that the Florida intangible personal property tax was repealed for the 2005 and 2006 tax years. 
The Board found credible the appellant's concerns with living in Massachusetts because of his degenerative health condition.  The Board also found credible his testimony that he had few, if any, friends in Massachusetts, because his friends had either passed away or had moved to Florida.  The Board thus found that, even before the start of the tax years at issue, the appellant had the desire and the intent to make Florida his new home.  
The Board also found credible the appellant's statements that he did not concern himself with performing various ministerial acts in order to make Florida his home.  Thus, while his home should not have been insured as a "seasonable" home, or his income tax returns should have listed his Florida address, or it may not have been an accurate interpretation that the repeal of the Florida intangible personal property tax was in effect for the tax years at issue, the Board did find credible the appellant's statements that he trusted his accountant to take care of various ministerial functions, and that he did not think to change the homeowner's insurance policy himself.
However, the Board also found that, until the appellant did perform at least a few of the basic ministerial acts required for changing one's domicile, the appellant had not made a sufficient showing that he was committed to making Florida his home.  As will be explained in the Opinion herein, intent must coincide with some level of action.  Thus, for tax year 2005, the Board found that the appellant failed to meet his burden of proving that Florida had become his new domicile.  
With respect to tax year 2006, the year in which the appellant obtained a Florida driver's license and registered to vote in Florida, the Board found that the appellant made an overt indication of his intention to making Florida his domicile.  Therefore, because his actions reflected his intent to make Florida his domicile, the Board found that the appellant met his burden of proving that he had acquired a new domicile for tax year 2006.  
Accordingly, the Board issued a decision for the appellee for tax year 2005 and a decision for the appellant for tax year 2006 and granted an abatement of $50,330.00, plus applicable interest.

OPINION
Under G.L. c. 62 § 2, Massachusetts residents are taxed, with certain limitations not relevant here, on all of their income from whatever sources derived.  In contrast, Massachusetts taxes non-residents only on income from Massachusetts sources.  See G.L. c. 62, § 5A.  A "resident" for Massachusetts tax purposes is defined as:
(1) any natural person domiciled in the commonwealth, or (2) any natural person who is not domiciled in the commonwealth but who maintains a permanent place of abode in the commonwealth and spends in the aggregate more than one hundred eighty-three days of the taxable year in the commonwealth, including days spent partially in and partially out of the commonwealth. 

G.L. c. 62, § 1(f).  The appellant contended, and the Commissioner does not challenge, that he spent fewer than 183 days in Massachusetts during the tax years at issue.  The issue presented in these appeals, therefore, is whether the appellant was domiciled in Massachusetts and, therefore, was taxable as a resident during the tax years at issue.    
Domicile is commonly defined as "the place of actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode."  Commonwealth v. Davis, 284 Mass. 41, 50 (1933).  Massachusetts courts and the Board consider the hallmark of domicile to be that it is "'the place where a person dwells and which is the center of his domestic, social and civil life.'"  Reiersen v. Commissioner of Revenue, 26 Mass. App. Ct. 124, 125 (1988) (citing Restatement (Second) of Conflict of Laws § 12 (1969)).  
Massachusetts follows the common law rule that a person with legal capacity is considered to have changed his or her domicile by satisfying two elements: the establishment of physical residence in a different state and the intent to remain at the new residence permanently or indefinitely.  McMahon v. McMahon, 31 Mass. App. Ct. 504, 505 (1991).  Rather than merely accepting the taxpayer's expression of intent, the Board's determination requires a close analysis of the taxpayer's major life interests, including family relations, business connections, and social and extracurricular activities in order to determine his true intent.  See Reiersen, 26 Mass. App. Ct. at 125 ("A change of domicile occurs when a person with capacity to change his domicile is physically present in a place and intends to make that place his home for the time at least; the fact and intent must concur.") (citing Hershkoff v. Board of Registered Voters of Worcester, 366 Mass. 570, 576-77 (1974)).  In weighing the various facts, "[i]t is a general rule that the burden of showing a change of domicil is upon the party asserting the change."  Mellon Nat'l Bank & Trust Co. v. Commissioner of Corps. and Tax'n, 327 Mass. 631, 638 (1951); Horvitz v. Commissioner of Revenue, 51 Mass. App. Ct. 386, 394 (2001).  See also Davis, 284 Mass. at 49 ("The burden of proof that his domicil was changed rested on the defendant because he is the one who asserted that such change had taken place.").
The Supreme Judicial Court and the Massachusetts Appeals Court have recognized that a person may have a residence in one place and a permanent home (i.e., domicile) in another.  See, e.g., Hopkins v. Commissioner of Corps. & Tax'n, 320 Mass. 168, 173 (1946); Horvitz, 51 Mass. App. Ct. at 393.  Having more than one residence can lead to factors on more than one side of the "domicil[e] ledger."  See Reiersen, 26 Mass. App. Ct. at 127.  Therefore, a determination of domicile requires a weighing of the taxpayer's major life interests at each of his residences: 
"No exact definition can be given of domicile; it depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case . . .; and it may often occur, that the evidence of facts tending to establish the domicile in one place, would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which fix it, beyond question, in another."

Horvitz v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2002-252, 257, aff'd, 60 Mass. App. Ct. 1103 (2003) (quoting Tax Collector of Lowell v. Hanchett, 240 Mass. 557, 561 (1922)(citation omitted)).  In other words, a taxpayer's domicile is "'the center of his domestic, social and civil life.'"  Reiersen, 26 Mass. App. Ct. at 125 (citation omitted).
In the instant appeals, the appellant had the means to establish residences in both Florida and Massachusetts.  See Horvitz, Mass. ATB Findings of Fact and Reports at 2002-256 ("Because of [the taxpayer's] considerable financial resources, he was able to create two locations in each of which he carried on important parts of his life.").  Only one of those locations can be the appellant's domicile.  Therefore, the Board must weigh the evidence and determine whether the appellant met his burden of proving that he had changed his domicile to Florida as of the tax years at issue.  
An appellant's continuing ties to his Massachusetts residence do not automatically foreclose a finding of change of domicile: "[c]hange of domicile . . . does not require that a taxpayer divest himself of all remaining links to the former place of abode, or stay away from that place entirely."  Horvitz, Mass. ATB Findings of Fact and Reports at 2002-259 (citing Gordon v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1988-367, 375)).  In particular, a taxpayer can establish a new domicile even while he enjoys regular, prolonged stays at a Massachusetts summer residence, which he retains after moving away.  In that situation, "mere absences from home even for somewhat prolonged periods" are not conclusive evidence in the determination of a taxpayer's domicile, because the law does not require a taxpayer to abandon additional residences.  See McMahon, 31 Mass. App. Ct. at 506.  
For example, in Mee v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2010-273, the appellants, who were claiming to be domiciled in Florida, also maintained multiple Massachusetts houses -- a six-level home near the ocean in Osterville to which they returned annually in the summer months and two condominiums at the Ritz Carlton in Boston, one of which they infrequently used and the other which they rented.  The evidence showed that the taxpayers "weighed the warmer climate, convenient access to a golf club, and more conservative political culture in their decision to change their domicile to Florida upon Mr. Mee's retirement."  Id. at 2010-295.  The Board thus found that the taxpayers, by advancing valid non-tax reasons for the relocation of the center of their lives, were able to meet their burden of proving that Florida had become their new domicile.  Id. at 2010-295, 296.  
Similarly, the taxpayers in Salah v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1997-842 retained their Massachusetts residence, to which they returned every summer for several months at a time.  Despite the length and regularity of the taxpayers' return to Massachusetts, however, the Board focused on facts which established that the center of the taxpayers' domestic, social and personal life had shifted to Florida, including but not limited to the following: the taxpayers registered to vote in Florida and correspondingly removed themselves from the voter registry in Massachusetts; the taxpayers received Florida driver's licenses and surrendered their Massachusetts driver's licenses; the taxpayer's Massachusetts business activities were reduced to occasional consultation on isolated matters and his attendance at annual meetings; and the taxpayers' social ties to Florida, including their memberships in a social club and a church.  Id. at 1997-856, 857.      
In the instant appeal, the Board found that the appellant's transition to Florida happened gradually before the tax years at issue.  The appellant and his wife had a history of vacationing in Florida, as evidenced by the appellant joining The Falls Country Club in 1993.  The appellant and his wife then purchased the land for the Lake Worth home in 1997 and its construction was completed in 2002.  Starting in about 1999, the appellant realized that, for valid health concerns, he could no longer work nor could he live full time in Massachusetts.  See Evans v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2013-9, 29 ("The Board found credible the appellants' testimony that [the wife's] diagnosis of MS spurred them to make sweeping changes to their lifestyle" that included relocation to Florida.).  Moreover, as most of his friends had either passed away or had relocated to Florida over the years, the appellant gradually found himself more closely aligned with his community in Florida -- particularly his country club which he attended very frequently -- than with the community in Massachusetts.  See Mee, Mass. ATB Findings of Fact and Reports at 2010-295.  The Board found that the appellant's motivation was driven primarily by health and his enjoyment of a close community of similarly-situated club members, not primarily by tax concerns. 
The instant appeal includes an additional fact not typically present in domicile cases -- the appellant is married, not legally separated from his wife, and he claims to be domiciled in a state different from that of his spouse.  The Board has previously decided appeals in which one spouse claims a different domicile than the other.  In Reiersen, 26 Mass. App. Ct. at 130, and Scagel v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 1990-311, 315, where the Board found that the appellants met their burdens of proving domiciles apart from their wives, it was undisputed that the taxpayers, though legally married, were estranged from their wives and/or children and carried on largely separate lives.  By contrast, in Brew v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2010-767, 785, the taxpayer "had a close and loving marriage" with his spouse and "he was actively engaged in the lives of his two children," all of whom remained Massachusetts residents.  Because that taxpayer continued to return to Massachusetts on a frequent and regular basis during the tax years at issue to be with his family, the Board considered his close family ties to have "the greatest weight" in its determination that the appellant had not abandoned his Massachusetts domicile in favor of a new one in Florida.  Id.
The facts of the instant appeal lie somewhere between those of Reiersen and Scagel on the one hand and Brew on the other.  Unlike Reiersen and Scagel, the appellant was not estranged from, but instead enjoyed a very close and loving relationship with, his wife, whom he described as his "life," and he admitted that he was "miserable" without her in Florida.  However, unlike the appellant in Brew, the appellant was a senior citizen with a degenerative health condition who, while he was very close with his children, was not actively involved in their day-to-day lives.  Mr. Altman's children were grown and each had lives of their own.  While Mr. Altman may have spoken with his children on a frequent basis, he did not visit them frequently, saving his visits for the holidays and for the warmer months when the family convened at the Phillipston property.  See Devens v. Commissioner, Mass. ATB Findings of Fact and Reports 2012-1001, 1024 (finding that the taxpayer's ties to his adult sons and young grandchild, with whom he did not live during the tax periods in dispute, were not the most persuasive evidence of domicile).  Meanwhile, Mrs. Altman made a serious effort to be with her husband as often as was possible, staying with him in Florida for ten out of every fourteen days.  On the basis of these facts, the Board did not place much weight on the appellant's family's domicile in the determination of his domicile.
The Board also did not place much weight on the appellant's investment activities and his maintaining a cubicle for filing his "50 some years" of investment paperwork.  The Board did not find those activities to rise to the level of active business involvement that can have much weight in the determination of domicile.  Cf.  Reiersen, 26 Mass. App. Ct. at 131 (finding active business endeavors to be persuasive indicators of domicile).  Moreover, the Board found credible the appellant's explanation that he could, and did, perform his investing activities wherever he happened to be located.  Nor did the Board place much weight on the appellant's one-time political contribution of a modest amount to a Massachusetts candidate whom he had never met nor recognized, which he made using the Massachusetts joint account that he shared with his wife.  Cf. Schussel v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2013-106, 140 (finding that, by making a sizable contribution when a U.S. Senatorial candidate paid a personal visit to his office, the taxpayer "demonstrated interest in the outcome of Massachusetts political contests").
In making its ruling, the Board did place some weight on the appellant's performance, or lack of performance, of certain ministerial acts.  The Board has previously ruled that the perfunctory performance of various ministerial acts, without the requisite intent to make someplace a new home, will not alone enable a taxpayer to meet his burden of proving a new domicile.  See, e.g., Dotson v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2010-997, 1009, aff'd, 82 Mass. App. Ct. 378 (2012) (finding that obtaining a Florida voter registration and driver's license were less persuasive indicators of the taxpayer's domicile than his ongoing activities).  However, the Board nonetheless found that ministerial acts, while no guarantee of a finding of domicile, were important indicators of this appellant's commitment to making Florida his domicile.  The appellant did not care to be bothered with reviewing his tax and insurance filings, leaving these, for better or worse, to his hired experts.  Yet until the appellant made the overt indications of his intention to center his life in Florida by obtaining a Florida driver's license and registering to vote in Florida, the Board found that he had not sufficiently demonstrated his intent to establish a new domicile in Florida.  See Schussel, Mass. ATB Findings of Fact and Reports at 2013-140 (finding that the taxpayer's failures to register to vote and apply for a New Hampshire drivers' license were persuasive factors "on the Massachusetts side of the 'domicil ledger'").

The Board ruled that the appellant failed to meet his burden of proving a Florida domicile for tax year 2005, but that he met his burden for tax year 2006.  Accordingly, the Board issued a decision for the appellee for tax year 2005 and a decision for the appellant for tax year 2006 and granted an abatement of $50,330.00 of tax plus applicable interest.

				     APPELLATE TAX BOARD

									
 By:			__________	___	__
				     Thomas W. Hammond, Jr., Chairman



A true copy,

Attest:						
	   Clerk of the Board
	

 The Commissioner submitted the Florida DOR's promulgation interpreting Chapter 2006-313, L.O.F., the law that repealed the intangible personal property tax.  That promulgation, Tax Information Publication #07C02-01, specifically advised that no intangible personal property tax would be due, and no intangible personal property tax forms would need to be filed, "for 2007 or subsequent years" and that "it is the intent of the Legislature that all annual intangible personal property tax imposed in 2006 and in prior years remains in full force and effect."

294


ATB 2013-319


ATB 2013-292