1     
INCOME TAX DOMICILE AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis S. Bramble

5     
House Sponsor: Steve Eliason

6     

7     LONG TITLE
8     Committee Note:
9          The Revenue and Taxation Interim Committee recommended this bill.
10               Legislative Vote:     15 voting for     0 voting against     4 absent
11     General Description:
12          This bill modifies provisions relating to income tax domicile requirements.
13     Highlighted Provisions:
14          This bill:
15          ▸     provides that an individual may not be determined to have domicile in this state for
16     purposes of assessing an income tax based on the individual's dependent being
17     enrolled in a public school in this state if the individual is a noncustodial parent and
18     the individual was never married to the dependent's custodial parent.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          This bill provides retrospective operation.
23     Utah Code Sections Affected:
24     AMENDS:
25          59-10-136, as last amended by Laws of Utah 2020, Chapter 354
26     

27     Be it enacted by the Legislature of the state of Utah:

28          Section 1. Section 59-10-136 is amended to read:
29          59-10-136. Domicile -- Temporary absence from state.
30          (1) (a) An individual is considered to have domicile in this state if:
31          (i) except as provided in Subsection (1)(b), a dependent with respect to whom the
32     individual or the individual's spouse claims a personal exemption or a tax credit under Section
33     24, Internal Revenue Code, on the individual's or individual's spouse's federal individual
34     income tax return is enrolled in a public kindergarten, public elementary school, or public
35     secondary school in this state; or
36          (ii) the individual or the individual's spouse is a resident student in accordance with
37     Section 53B-8-102 who is enrolled in an institution of higher education described in Section
38     53B-2-101 in this state.
39          (b) The determination of whether an individual is considered to have domicile in this
40     state may not be determined in accordance with Subsection (1)(a)(i) if the individual:
41          (i) is the noncustodial parent of a dependent:
42          (A) with respect to whom the individual claims a personal exemption or a tax credit
43     under Section 24, Internal Revenue Code, on the individual's federal individual income tax
44     return; and
45          (B) who is enrolled in a public kindergarten, public elementary school, or public
46     secondary school in this state; and
47          (ii) (A) is divorced from the custodial parent of the dependent described in Subsection
48     (1)(b)(i)[.]; or
49          (B) was never married to the custodial parent of the dependent described in Subsection
50     (1)(b)(i).
51          (2) There is a rebuttable presumption that an individual is considered to have domicile
52     in this state if:
53          (a) the individual or the individual's spouse claims a residential exemption in
54     accordance with Chapter 2, Property Tax Act, for that individual's or individual's spouse's
55     primary residence;
56          (b) the individual or the individual's spouse:
57          (i) votes in this state in a regular general election, municipal general election, primary
58     election, or special election during the taxable year; and

59          (ii) has not registered to vote in another state in that taxable year; or
60          (c) the individual or the individual's spouse asserts residency in this state for purposes
61     of filing an individual income tax return under this chapter, including asserting that the
62     individual or the individual's spouse is a part-year resident of this state for the portion of the
63     taxable year for which the individual or the individual's spouse is a resident of this state.
64          (3) (a) Subject to Subsection (3)(b), if the requirements of Subsection (1) or (2) are not
65     met for an individual to be considered to have domicile in this state, the individual is
66     considered to have domicile in this state if:
67          (i) the individual or the individual's spouse has a permanent home in this state to which
68     the individual or the individual's spouse intends to return after being absent; and
69          (ii) the individual or the individual's spouse has voluntarily fixed the individual's or the
70     individual's spouse's habitation in this state, not for a special or temporary purpose, but with the
71     intent of making a permanent home.
72          (b) The determination of whether an individual is considered to have domicile in this
73     state under Subsection (3)(a) shall be based on the preponderance of the evidence, taking into
74     consideration the totality of the following facts and circumstances:
75          (i) whether the individual or the individual's spouse has a driver license in this state;
76          (ii) whether a dependent with respect to whom the individual or the individual's spouse
77     claims a personal exemption or a tax credit under Section 24, Internal Revenue Code, on the
78     individual's or individual's spouse's federal individual income tax return is a resident student in
79     accordance with Section 53B-8-102 who is enrolled in an institution of higher education
80     described in Section 53B-2-101 in this state;
81          (iii) the nature and quality of the living accommodations that the individual or the
82     individual's spouse has in this state as compared to another state;
83          (iv) the presence in this state of a spouse or dependent with respect to whom the
84     individual or the individual's spouse claims a personal exemption or a tax credit under Section
85     24, Internal Revenue Code, on the individual's or individual's spouse's federal individual
86     income tax return;
87          (v) the physical location in which earned income as defined in Section 32(c)(2),
88     Internal Revenue Code, is earned by the individual or the individual's spouse;
89          (vi) the state of registration of a vehicle as defined in Section 59-12-102 owned or

90     leased by the individual or the individual's spouse;
91          (vii) whether the individual or the individual's spouse is a member of a church, a club,
92     or another similar organization in this state;
93          (viii) whether the individual or the individual's spouse lists an address in this state on
94     mail, a telephone listing, a listing in an official government publication, other correspondence,
95     or another similar item;
96          (ix) whether the individual or the individual's spouse lists an address in this state on a
97     state or federal tax return;
98          (x) whether the individual or the individual's spouse asserts residency in this state on a
99     document, other than an individual income tax return filed under this chapter, filed with or
100     provided to a court or other governmental entity;
101          (xi) the failure of an individual or the individual's spouse to obtain a permit or license
102     normally required of a resident of the state for which the individual or the individual's spouse
103     asserts to have domicile;
104          (xii) whether the individual is an individual described in Subsection (1)(b);
105          (xiii) whether the individual:
106          (A) maintains a place of abode in the state; and
107          (B) spends in the aggregate 183 or more days of the taxable year in the state; or
108          (xiv) whether the individual or the individual's spouse:
109          (A) did not vote in this state in a regular general election, municipal general election,
110     primary election, or special election during the taxable year, but voted in the state in a general
111     election, municipal general election, primary election, or special election during any of the
112     three taxable years prior to that taxable year; and
113          (B) has not registered to vote in another state during a taxable year described in
114     Subsection (3)(b)(xiv)(A).
115          (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and
116     for purposes of Subsection (3)(b)(xiii), the commission may by rule define what constitutes
117     spending a day of the taxable year in the state.
118          (4) (a) Notwithstanding Subsections (1) through (3) and subject to the other provisions
119     of this Subsection (4), an individual is not considered to have domicile in this state if the
120     individual meets the following qualifications:

121          (i) except as provided in Subsection (4)(a)(ii)(A), the individual and the individual's
122     spouse are absent from the state for at least 761 consecutive days; and
123          (ii) during the time period described in Subsection (4)(a)(i), neither the individual nor
124     the individual's spouse:
125          (A) return to this state for more than 30 days in a calendar year;
126          (B) claim a personal exemption or a tax credit under Section 24, Internal Revenue
127     Code, on the individual's or individual's spouse's federal individual income tax return with
128     respect to a dependent who is enrolled in a public kindergarten, public elementary school, or
129     public secondary school in this state, unless the individual is an individual described in
130     Subsection (1)(b);
131          (C) are resident students in accordance with Section 53B-8-102 who are enrolled in an
132     institution of higher education described in Section 53B-2-101 in this state;
133          (D) claim a residential exemption in accordance with Chapter 2, Property Tax Act, for
134     that individual's or individual's spouse's primary residence; or
135          (E) assert that this state is the individual's or the individual's spouse's tax home for
136     federal individual income tax purposes.
137          (b) Notwithstanding Subsection (4)(a), an individual that meets the qualifications of
138     Subsection (4)(a) to not be considered to have domicile in this state may elect to be considered
139     to have domicile in this state by filing an individual income tax return in this state as a resident
140     individual.
141          (c) For purposes of Subsection (4)(a), an absence from the state:
142          (i) begins on the later of the date:
143          (A) the individual leaves this state; or
144          (B) the individual's spouse leaves this state; and
145          (ii) ends on the date the individual or the individual's spouse returns to this state if the
146     individual or the individual's spouse remains in this state for more than 30 days in a calendar
147     year.
148          (d) An individual shall file an individual income tax return or amended individual
149     income tax return under this chapter and pay any applicable interest imposed under Section
150     59-1-402 if:
151          (i) the individual did not file an individual income tax return or amended individual

152     income tax return under this chapter based on the individual's belief that the individual has met
153     the qualifications of Subsection (4)(a) to not be considered to have domicile in this state; and
154          (ii) the individual or the individual's spouse fails to meet a qualification of Subsection
155     (4)(a) to not be considered to have domicile in this state.
156          (e) (i) Except as provided in Subsection (4)(e)(ii), an individual that files an individual
157     income tax return or amended individual income tax return under Subsection (4)(d) shall pay
158     any applicable penalty imposed under Section 59-1-401.
159          (ii) The commission shall waive the penalties under Subsections 59-1-401(2), (3), and
160     (5) if an individual who is required by Subsection (4)(d) to file an individual income tax return
161     or amended individual income tax return under this chapter:
162          (A) files the individual income tax return or amended individual income tax return
163     within 105 days after the individual fails to meet a qualification of Subsection (4)(a) to not be
164     considered to have domicile in this state; and
165          (B) within the 105-day period described in Subsection (4)(e)(ii)(A), pays in full the tax
166     due on the return, any interest imposed under Section 59-1-402, and any applicable penalty
167     imposed under Section 59-1-401, except for a penalty under Subsection 59-1-401(2), (3), or
168     (5).
169          (5) Notwithstanding Subsections (2) and (3), for individuals who are spouses for
170     purposes of this section and one of the spouses has domicile under this section, the other
171     spouse is not considered to have domicile in this state under Subsection (2) or (3) if one of the
172     spouses establishes by a preponderance of the evidence that, during the taxable year and for
173     three taxable years prior to that taxable year, that other spouse:
174          (a) is not an owner of property in this state;
175          (b) does not return to this state for more than 30 days in a calendar year;
176          (c) has not received earned income as defined in Section 32(c)(2), Internal Revenue
177     Code, in this state;
178          (d) has not voted in this state in a regular general election, municipal general election,
179     primary election, or special election; and
180          (e) does not have a driver license in this state.
181          (6) (a) Except as provided in Subsection (5), an individual is considered to have
182     domicile in this state in accordance with this section, the individual's spouse is considered to

183     have domicile in this state.
184          (b) For purposes of this section, an individual is not considered to have a spouse if:
185          (i) the individual is legally separated or divorced from the spouse; or
186          (ii) the individual and the individual's spouse claim married filing separately filing
187     status for purposes of filing a federal individual income tax return for the taxable year.
188          (c) Except as provided in Subsection (6)(b)(ii), for purposes of this section, an
189     individual's filing status on a federal individual income tax return or a return filed under this
190     chapter may not be considered in determining whether an individual has a spouse.
191          (7) For purposes of this section, whether or not an individual or the individual's spouse
192     claims a property tax residential exemption under Chapter 2, Property Tax Act, for the
193     residential property that is the primary residence of a tenant of the individual or the individual's
194     spouse may not be considered in determining domicile in this state.
195          Section 2. Retrospective operation.
196          This bill has retrospective operation for a taxable year beginning on or after January 1,
197     2021.