Cunningham v. Testa
144 Ohio St. 3d 40
| Ohio | 2015Background
- Kent Cunningham filed an Affidavit of Non-Ohio Domicile (form prescribed by Tax Commissioner) for 2008, asserting Tennessee domicile and fewer than 183 Ohio "contact periods." His wife Sue did not file a similar affidavit.
- The Cunninghams did not file an Ohio income-tax return for 2008; their joint federal return listed a Cincinnati address.
- The Tax Commissioner assessed Ohio income tax, interest, and penalties after concluding the affidavit conflicted with a January 24, 2008 homestead-exemption application (signed by Kent and Sue) that described the Cincinnati house as their principal residence and the Tennessee house as a second/vacation home.
- The Tax Commissioner found the affidavit to be a false statement under R.C. 5747.24(B)(1) and therefore treated the taxpayers as domiciled in Ohio for the year, denying the irrebuttable presumption of non-Ohio domicile and sustaining assessment.
- The Board of Tax Appeals (BTA) reversed as to Kent, holding that R.C. 5747.24(B)(1) creates an irrebuttable presumption when the statutory elements (abode outside Ohio, ≤182 contact periods, timely affidavit) are satisfied and that a false-statement finding was limited to misstatements about contact periods or abode.
- The Ohio Supreme Court reversed the BTA: it held the Commissioner may find the domicile verification false when supported by substantial contradictory evidence (here, the homestead-exemption application), reinstate the assessment, and require the taxpayer to rebut the presumption under R.C. 5747.24(C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a timely-filed R.C. 5747.24(B)(1) affidavit verifying non-Ohio domicile is binding and irrebuttable despite other contrary statements/actions | Cunningham: Satisfying the statute's three elements (out-of-state abode, ≤182 contact periods, timely affidavit) creates an irrebuttable presumption of non-Ohio domicile; falsity may be found only as to contact periods or abode | Tax Commissioner: The affidavit must "verify" non-Ohio domicile and can be found false if contradicted by other substantial evidence bearing on common-law domicile | The Supreme Court held the affidavit is not conclusive; the Commissioner may find it false when substantial contradictory evidence exists (here, homestead-exemption application) and then apply R.C. 5747.24(C) presumptions and burdens |
Key Cases Cited
- Schill v. Cincinnati Ins. Co., 141 Ohio St.3d 382 (2014) (explains common-law concept of domicile and requisite intent and presence)
- Brachman v. Limbach, 52 Ohio St.3d 1 (1990) (discusses resident taxation and resident credit to avoid double taxation)
- Williamson v. Osenton, 232 U.S. 619 (1914) (classic formulation on domicile and change of abode requiring intent to remain)
- In re Hutson's Estate, 165 Ohio St. 115 (1956) (factors relevant to domicile, including ties to the state)
- Cleveland v. Surella, 61 Ohio App.3d 302 (1989) (lists evidentiary factors relevant to domicile such as tax filing, voting, vehicle registration)