Michael F. & Judith A. Mee v. Commissioner of Revenue (April 12, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


MICHAEL F. & JUDITH A. MEE     v.	 COMMISSIONER OF REVENUE

Docket Nos. C287787, C293547		 Promulgated:
        	  					 April 12, 2010


	These are appeals filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62C, § 39, from the refusal of the Commissioner of Revenue ("Commissioner" or "appellee") to abate personal income taxes assessed to Michael F. Mee and Judith A. Mee (jointly the "appellants"), for tax years 2004 and 2005 (tax years at issue").
Commissioner Scharaffa heard these appeals.  Chairman Hammond and Commissioners Egan, Rose, and Mulhern joined him in decisions for the appellants.
	These findings of fact and report are made pursuant to a request by the appellants under G.L. c. 58A, § 13 and 831 CMR 1.32.

	William E. Halmkin, Esq., David J. Nagle, Esq., Judith G. Edington, Esq. and Jill Tenley Oldak, Esq. for the appellants.

	Christopher Glionna, Esq., Celine E. Jackson, Esq., Bensen V. Solivan, Esq. and Mireille T. Eastman, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
Based upon the Agreed Statement of Facts and testimony and exhibits offered into evidence at the hearing of these appeals, the Appellate Tax Board ("Board") made the following findings of fact.  
On June 30, 2005, the appellants filed a joint 2004 Massachusetts Nonresident/Part-Year Resident Tax Return.  After an audit, the Commissioner issued a Notice of Intent to Assess dated November 13, 2005 proposing to assess a tax of $151,707 plus interest for the 2004 tax year.  By Notice of Assessment dated September 19, 2006, the Commissioner notified the appellants of a deficiency assessment of personal income taxes of $151,707, plus interest, for the 2004 tax year.  On November 17, 2006, the appellants timely filed an abatement application, which the Commissioner denied on December 7, 2006.  On January 29, 2007, the appellants seasonably filed their appeal with the Board, requesting an abatement of $151,707, plus interest.  On the basis of the foregoing, the Board found and ruled that it had jurisdiction over the 2004 appeal.
On July 12, 2006, the appellants filed a joint 2005 Massachusetts Nonresident/Part-Year Resident Tax Return.  After an audit, by Notice of Intent to Assess dated January 12, 2007, the Commissioner proposed to assess income tax of $105,193, plus interest and penalty, for tax year 2005.  By Notice of Assessment dated February 27, 2007, the Commissioner notified the appellants of a deficiency assessment of personal income taxes of $105,193, plus interest and an unspecified penalty, for the 2005 tax year.  On April 23, 2007, the appellants timely filed an abatement application with respect to the February 27, 2007 Notice of Assessment, which the Commissioner denied by two separate Notices of Abatement Determination, one dated July 16, 2007 and the second dated August 12, 2008.  The appellants filed their original Petition Under Formal Procedure with respect to tax year 2005 on September 12, 2007, requesting an abatement in the amount of $105,193 plus interest and penalty.  On August 18, 2008, the appellants seasonably filed a Consented-To Amended Petition under Formal Procedure requesting an abatement in the amount of $105,193 plus interest and penalty, and an additional amount of $2,055, plus interest and penalty, for the 2005 tax year.  On the basis of the foregoing, the Board found and ruled that it had jurisdiction over the 2005 appeal.
The issue in these appeals is whether the appellants were domiciled in Massachusetts during the tax years at issue.  Michael and Judith Mee were married individuals who were both born and raised in Massachusetts.  Judith grew up in Arlington, Massachusetts and Michael grew up in the Roxbury-Jamaica Plain corridor.  However, the appellants had spent much of their adult lives outside of Massachusetts, moving to several locations because of Michael's work.  The appellants returned to Massachusetts and settled in Concord, Massachusetts in 1985, after being out of the state for 20 years.  
In 1994, nine years after returning to Massachusetts, Mr. Mee accepted a new position in New York City.  The appellants decided that the family would not move to New York City so as not to disrupt the last two years of their daughter's high school experience.  Instead, Mr. Mee took an apartment during the week and returned to the Concord residence on the weekends.  Mr. Mee remained with the job in New York City until his retirement in 2003.
On August 28, 1997, after their daughter finished high school, the appellants purchased their first condominium in Jupiter, Florida.  The appellants testified that they had been vacationing in Florida since the 1980s, but with the purchase of the condominium, they began to spend more time there, particularly for long weekends and holidays.  Less than a year after the purchase, in April and May of 1998, the appellants sold the Jupiter condominium and purchased a larger unit nearby. 
The appellants sold their Concord, Massachusetts residence in 1999.  Mrs. Mee testified that, with her children grown and out of the house, her friends retired and relocated, and Mr. Mee still working in New York City, she felt too isolated in the wooded area of Concord.  Therefore, on January 29, 1999, Mrs. Mee purchased a residence near the ocean in Osterville, Massachusetts.  Mrs. Mee testified that the Osterville residence had six levels with stairs between each level.  Mrs. Mee also testified that, while the Osterville residence was lovely, it had certain drawbacks, including the small kitchen without air conditioning, the many stairs and levels of the residence, and the laundry room located in the basement.  The appellants had made changes to one of the residence's bathrooms but had not otherwise bothered to renovate the Osterville residence; moreover, the appellants twice passed on the opportunity to purchase a neighboring parcel of land which would have increased their lot size.  Mr. Mee explained that the appellants were not willing to make this commitment to Massachusetts and the Osterville residence because of "our feelings and our commitment to Florida, it made no sense to me so we have passed."
In 2001, Mr. Mee purchased Unit 30-A, a large condominium at 1 Avery Street in Boston at the Ritz Carlton ("Unit 30-A").  Mr. Mee testified that he viewed this purchase as an investment.  The appellants did not, however, rent Unit 30-A; instead, they used it as a stopover when traveling between Jupiter and Osterville, or for overnight stays when traveling to Boston, for example, for Fourth of July celebrations.  
The appellants purchased their current Florida residence, a large condominium, in May of 2002.  Mr. Mee explained the events leading to the purchase of the larger condominium.  He testified that after he was passed over for a promotion in 2001, he began to work with the company in an advisory role that would enable him to phase into retirement.  With a reduced work schedule and no children residing in Massachusetts, the appellants began to spend more time in Florida, and on June 30, 2003, days before his sixty-first birthday, Mr. Mee retired from his job in New York.
The Florida residence contained about 2,500 square feet of living space.  It fronted both the intercoastal waterway and the Atlantic Ocean, with views of both from the balconies positioned beyond three of the four walls of the residence.  The residence was located on the eighth floor of the complex and was accessible by two key-operated elevators that open directly into the residence.  The residence featured two bedrooms, a den and three full bathrooms, as well as an air-conditioned garage.  The appellants made extensive renovations to the Florida residence, including gutting and re-flooring the residence, hiring a professional decorator, and purchasing all new furniture and fixtures.  During the tax years at issue, the appellants kept their valuable china and silverware with them in Florida.  They stored a Toyota in the garage at the Boston condominium, but maintained their other cars which they owned at various times during the tax years at issue (a Chevrolet Corvette, a Toyota Solaris and a Jaguar) in Florida.
On April 22, 2005, Mr. Mee purchased a second condominium, located at Two Avery Street, Unit 29C, in Boston ("Unit 29C").  Mr. Mee purchased Unit 29C as an investment property and rented it to an individual tenant for between $12,000 and $13,000 a month.  Mr. Mee subsequently sold Unit 29C, after the tax years at issue, for a substantial profit. 
Mrs. Mee had two sisters, Patricia Bibby and Lillian Marshall.  Patricia resided in Melrose, Massachusetts, while Lillian resided in Fort Myers, Florida.  Mr. Mee had three living siblings -- Paul Mee, who lived in Amelia Island, Florida; David Mead, who lived in Maryland; and a sister who lived in Detroit, Michigan.  Mr. Mee testified that he was unsure whether one of his daughters may have resided in Massachusetts during the tax years at issue; he explained that she may have resided in Boston for a short period while en route from New York to Ann Arbor, Michigan.  With this possible exception, none of the appellants' children lived in Massachusetts during the tax years at issue.
The appellants testified as to their social ties to Florida and Massachusetts.  Mrs. Mee testified that the appellants were members of the Jupiter Hills Golf Club, located about seven minutes away from their Florida residence.  Both Mr. and Mrs. Mee testified that they played golf about four times a week, and they also attended other social events at the club, including Mrs. Mee's involvement in two marathon bridge clubs about four or five times a week and the appellants' participation in golf tournaments and dinner functions.  The appellants also socialized extensively with friends at the club, attending lunches, dinners and other functions with friends.  Mrs. Mee testified that she belonged to a ladies' group that attended theater outings and other social events.  Mrs. Mee also testified that, during the tax years at issue, the appellants attended church services regularly in Florida, at St. Jude's Church and St. Christopher's Church.  
The appellants both testified that, when in Massachusetts during the tax years at issue, they golfed at Cape Cod National Club, located about thirty-five minutes from their Osterville residence.  Mrs. Mee explained that she would have liked to golf four times a week, but because of the distance of the club from their residence, she usually golfed about two or three times a week during her stay in Osterville during the tax years at issue.  Mrs. Mee also testified that the appellants did not have a network of friends in Osterville; they instead socialized with friends who visited them at their Osterville residence.  Mrs. Mee also testified that the appellants did not attend church services in Osterville.
Other witnesses corroborated the appellants' testimony regarding their social ties to Florida.  Patricia Bibby, Mrs. Mee's sister, and Ms. Bibby's friend, Joseph Paglia, both testified that, based on their observations of the appellants when they visited them in Florida during the tax years at issue, the appellants had a large circle of friends with whom they socialized in Florida.  Ms. Bibby and Mr. Paglia both recalled parties that they have attended with the appellants and their many friends in Florida.  By contrast, both witnesses testified that the appellants did not have such a circle of friends, nor were they socially active, in Osterville.  Ms. Bibby also corroborated Mrs. Mee's testimony that the appellants spent the Thanksgiving holiday at their residence in Florida.  Mr. Mee's brothers, Paul Mee and David Mead, as well as Jack Russell Kelble, a friend of Mr. Mee's who lived near the appellants in Florida, also testified as to the appellants' active social lives in Florida.  
Paul Mee further testified as to what he believed to be the appellants' plans for retirement, based on his recollection of conversations with the appellant.  Paul Mee explained that, since about 1999, his brother, Michael, had been planning to retire to Florida, because he enjoyed the warmer climate, more conservative social and political demographic, and the availability of year-round outdoor activities, particularly golf.  Paul Mee also testified that he has spent the Thanksgiving, Christmas and New Year's holidays with the appellants in Florida.  Paul Mee and David Mead further corroborated the appellants' and other witnesses' testimonies that the appellants had a large circle of friends in Florida, as compared to Osterville.  Mr. Mead and Mr. Kelble also testified that, based on their recollections of separate conversations with Mr. Mee, the appellants had expressed a desire to retire to Florida, citing their enjoyment of the warmer weather and the more conservative political climate than that of Massachusetts.  
Further, credible evidence of record supported the appellants' argument that their decision to establish a Florida domicile was not driven by tax savings.  Mr. Kelble testified that, despite Florida's lack of a personal income tax, Mr. Mee believed that the overall cost of living in Florida was not less than in Massachusetts:
[Mr. Kelble]:  I considered moving to many places and certainly looked at the tax structure to see whether I was going to be paying more or less taxes.  I, I concluded very quickly - in fact, Michael - we talked about retirement many times because we were both in similar type of management positions . . . and both on kind of a parallel track to start thinking about retirement around 2000 or so, and planning what we would do for retirement, and I found and he pointed out to me that the cost of living in Florida, although it's advertised to be low is actually quite high relative to tax structure, sales tax is higher than Massachusetts and about equal with California, and that the property tax is quite high, . . .

(emphasis added). 
 
The appellants obtained healthcare services in both Florida and Massachusetts during the tax years at issue.  In Massachusetts, the appellants saw a cardiologist, and Mr. Mee saw an urologist.  Mr. Mee testified that Mrs. Mee was diagnosed with breast cancer on two separate occasions, sometime between 2003 and 2005, to the best of his recollection.  Because she was in Massachusetts when it was discovered, Mrs. Mee had surgeries performed in Massachusetts.  However, Mrs. Mee received her radiation treatments in Florida after her Massachusetts surgeries.  Additionally, Mr. Mee testified that Mrs. Mee's oncologist, orthopedic surgeon and OB/GYN physician were located in Florida, as were Mr. Mee's general practitioner, dentist, orthopedic surgeon and internist, as well as the dermatologist for both appellants.  
The Commissioner contended that the appellants used their Osterville address as the address of record on important filings, particularly several 1099 tax statements and their New York Non-resident and Part-Year Resident return, filed on June 22, 2005.  However, Mrs. Mee testified that the mail was forwarded to them in Florida, and that their accountant was the one who had prepared and signed the New York tax documents.
The appellants registered to vote in Palm Beach County on May 11, 2004; on that same day, they applied for the Florida Homestead exemption for their home at 425 Beach Road, Jupiter Island.  They voted in the 2004 Presidential Election in Florida.  The appellants obtained Florida driver's licenses on May 14, 2004. 
On the basis of the above evidence, the Board made the following findings.  The Board found that the appellants were both actively involved with the Jupiter Hills Golf Club, where Mrs. Mee regularly participated in bridge activities and Mr. Mee participated in golf outings and tournaments, and both appellants attended dinner and social functions.  The appellants also had an extensive network of friends in Florida with whom they socialized, as testified to by the appellants and corroborated by their several witnesses.  All the witnesses agreed that, while they enjoyed golfing at Cape Cod National Club, the appellants lacked a social network in Osterville comparable to that in Florida.  The appellants also testified, and the Board found credible, that they were members of two churches and attended church services regularly when in Florida, but they were not members of, nor did they attend, a church during their summer stays in Osterville.  
Moreover, the Board found credible the testimonies of Mr. Mead and Mr. Kelble, who, based on their recollections of separate conversations with Mr. Mee prior to the tax years at issue, vouched for the appellants' desire to retire to Florida, based at least in part on the appellants' enjoyment of the warmer weather and more conservative political climate.  The Board thus found that the appellants' social ties were stronger in Florida than they were in Massachusetts during the tax years at issue. 
The Board also found that, aside from Mrs. Mee's sister, Ms. Bibby, and the possible exception of one of their daughters -- who, if she was in Massachusetts during the tax years at issue, was only there for a brief time while en route to another destination -- the appellants lacked strong family ties to Massachusetts during the tax years at issue.  On the other hand, the appellants each had a sibling who lived in Florida during the tax years at issue -- Mr. Mee's brother, Paul Mee, and Mrs. Mee's sister, Lillian Marshall.  The Board thus found that the appellants' family ties to Massachusetts were minimal, while their family ties to Florida were significantly stronger during the tax years at issue. 
The Board further found that the appellants' Florida residence reflected their commitment to the Jupiter area.  The Board found that this residence -- with 2,500 square feet of living space and with key-operated elevator access into the main living room -- was more spacious and more conducive to retirement-living than the multi-leveled Osterville residence with its many stairs and basement-level laundry room.  The Board also found that the appellants actively made a commitment to the Jupiter area by making extensive home renovations, purchasing all new furnishings and moving their valuable possessions, like china, silverware and expensive cars, to the Florida residence.  Moreover, the majority of the appellants' healthcare providers are located in Florida.  Even though the appellants did not obtain Florida drivers' licenses, apply for the Florida Homestead exemption, or register to vote in Florida until May of 2004, the Board found that the appellants produced strong evidence that they had formed the requisite intent to make Florida their domicile before the start of the 2004 tax year.  
By contrast, the Board found that the appellants did not make a similar commitment to their Osterville residence, as evidenced particularly by their failure to renovate the residence aside from making updates to one bathroom and twice rejecting an offer to purchase adjoining land that would have increased the lot size of their Osterville residence.  Therefore, while the appellants may not have changed their Osterville address on some brokerage and tax accounts, they nonetheless made life-style commitments to their Florida residence.  Furthermore, while the appellants owned other Massachusetts properties, namely Unit 30-A and Unit 29C, the appellants rented out Unit 29C and they stayed only sporadically at Unit 30-A.  The Board thus found these properties to be more in the nature of investments for the Mees and not reflective of the appellants' commitment to Massachusetts during the tax years at issue.  Moreover, the appellants did not claim a residential property tax exemption for any of their Massachusetts properties during the tax years at issue. 
Therefore, for the reasons which will be explained further in the following Opinion, the Board found that the appellants met their burden of proving that they had changed their domicile to Florida before the beginning of the tax years at issue.  Accordingly, the Board issued decisions for the appellants granting an abatement in the amount of $151,707 for the 2004 tax year and $105,193 for the 2005 tax year, plus all statutory additions for both tax years.

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 appellants contend, and the Commissioner does not challenge, that the appellants did not spend more than 183 days in Massachusetts during the tax years at issue.  The issue presented in these appeals, therefore, is whether the appellants were domiciled in Massachusetts and, therefore, were taxable as residents 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).  While domicile may be a difficult concept to define precisely, the hallmark of domicile is 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)).  In the instant appeals, the appellants do not dispute that their domicile had been Massachusetts for approximately 19 years before the tax years at issue.  The appellants contend that they had changed their domicile to Florida before the beginning of the tax years at issue.
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, 31 Mass. App. Ct. at 505.  The determination of intent goes beyond merely accepting the taxpayer's expression of intent and instead requires an analysis of the facts closely connected to 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, 576-577 (1974)).  "It 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. Comm'r of Corporations and Taxation, 327 Mass. 631, 638 (1951); Horvitz v. Commissioner of Revenue, 51 Mass. App. Ct. 386, 394 (2001).  See also Commonwealth v. Davis, 284 Mass. 41, 49 (1933) ("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.").
Moreover, 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 v. Commissioner of Revenue, 51 Mass. App. Ct. 386, 393 (2001).  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 depends upon a comprehensive facts-and-circumstances analysis: 
'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)); see also Roarke v. Hanchett, 240 Mass. 557, 561 (1922) (finding that proof of domicile "depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case.").  While a person may have ties to more than one location, the standard of domicile is that it is "'the place where a person dwells and which is the center of his domestic, social and civil life.'"  Reiersen, 26 Mass. App. Ct. at 125 (citation omitted). 
In the instant appeals, the appellants had the means to establish residences for themselves in both Florida and Massachusetts.  See Horvitz v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2002-252, 256 ("Because of Horvitz's considerable financial resources, he was able to create two locations in each of which he carried on important parts of his life.").  However, only one of those locations could be the appellants' domicile.  Therefore, the Board must weigh the evidence and determine whether the appellants met their burden of proving that they had changed their domicile to Florida before the beginning of the tax years at issue.  
The appellants' continuing ties to their Massachusetts residence do not automatically foreclose a finding of change of domicile: "such change 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)).  Yet notwithstanding the presence of considerable evidence on both sides of the domicile ledger, certain ties are particularly probative and entitled to greater weight.  In particular, strong social ties to a particular location are indicative of a taxpayer's domicile.  See, e.g., Reiersen, 26 Mass. App. Ct. at 130 ("[Reiersen's] was not a temporary mission.  In the Philippines he had found business and social success he had not enjoyed in Worcester.  There he had made friends and joined clubs."). 
The Board has previously decided appeals where a taxpayer enjoyed regular, prolonged stays at a Massachusetts summer residence, which the taxpayer retained after moving to Florida.  In these situations, the Board has been guided by the principle that "mere absences from home even for somewhat prolonged periods" are not conclusive evidence in the determination of a taxpayer's domicile.  See McMahon, 31 Mass. App. Ct. at 506.  For example, like the appellants in the instant appeals, the appellants 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 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 1987-856,857.
In the instant appeals, the Board found and ruled that the testimony of the appellants, as corroborated by their several credible witnesses, established that the appellants' ties - certainly their social ties and even their family ties - were stronger in Florida than in Massachusetts during the tax years at issue.  The Board found credible that the appellants 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.  These reasons, and not tax savings, were the predominant motivations for the appellants' decision to live in Florida; in fact, the Board found credible Mr. Kelble's testimony that Mr. Mee believed that the overall cost of living in Florida was not less expensive than the cost of living in Massachusetts, even with the Massachusetts income tax.  The Board also found and ruled that, even though they did not apply for Florida drivers' licenses or register to vote in Florida until May of 2004, the appellants had already made the commitment to change their domicile to Florida by, for example, extensively renovating and refurbishing their Florida residence and insuring their more expensive vehicles in Florida, and registering to vote in Florida.  See, e.g., Rosenthal v. Commissioner, Mass. ATB Findings of Fact and Reports 1997-859, 872-73 (in finding the appellants met their burden of proving they changed their domicile to Florida, the Board considered that the appellants made a substantial investment in a Florida condominium, surrendered their Massachusetts drivers' licenses and Massachusetts vehicle registrations to obtain Florida licenses and registrations, registered to vote, and joined several social organizations in Florida).  Moreover, the appellants were far more socially active in Florida, attending many golf, bridge, and social events, and attending two different churches.  In Massachusetts, the appellants had only casual acquaintances, they attended few social functions and golfed far less frequently, and they did not attend church services during their summer stays.  
On the basis of the evidence of record, the Board found and ruled that the appellants had formed the requisite intent to make Florida their home before the beginning of tax year 2004.  The Board thus found and ruled that the appellants met their burden of proving that Massachusetts was not the center of their social, family or civic life, and therefore, the appellants were not domiciled in Massachusetts during the tax years at issue.  Accordingly, the Board issued decisions for the appellants, granting an abatement in the amount of $151,707 for the 2004 tax year and $105,193 for the 2005 tax year, plus all statutory additions for both tax years.


					 APPELLATE TAX BOARD

		  		  By:				_____	____						 Thomas W. Hammond, Jr., Chairman





A true copy,


Attest:				_____	
	      Clerk of the Board

 On October 2, 2006, the Department of Revenue ("DOR") issued a consolidated bill based on a 2005 tax liability of $2,055.  On December 13, 2006, the appellants filed an abatement application with respect to the October 2, 2006 consolidated bill.  In their Consented-to Amended Petition, the appellants claimed that the October 2, 2006 consolidated bill in the amount of $2,055 represented a tax on nonqualified pension income, which they contended was nontaxable pursuant to 4 U.S.C. Section 114(b)(1)(I)(i).  The appellants did not raise the issue of the $2,055 consolidated tax bill at the hearing of these appeals or in their post-hearing submissions.  Therefore, the Board did not consider or rule on this issue. 
  G.L. c. 59, § 5C  provides a residential exemption, which "shall be applied only to the principal residence of a taxpayer." 

ATB 2010-273