*1
This opinion is subject to revision before final
publication in the Pacific Reporter
S UPREME C OURT OF THE S TATE OF U TAH ERRY T ISCHMAK ,
Petitioner, v. S TATE C ,
Respondent. No. 20230443 Heard December 11, 2024 Filed July 25, 2025 On Petition for Review of Agency Decision
Utah State Tax Commission, Auditing Division
The Honorable Jane Phan No. 21-1478 Attorneys: Michael D. Black, Salt Lake City, for petitioner Derek E. Brown, Att’y Gen., Sarah Goldberg, Asst. Solic. Gen., Salt Lake City, for respondent J USTICE P ETERSEN authored the opinion of the Court, in which HIEF J USTICE D URRANT , A SSOCIATE HIEF J USTICE P EARCE , J USTICE H AGEN , and J USTICE P OHLMAN joined.
J USTICE P ETERSEN , opinion of the Court: INTRODUCTION Utah, like many other states across the country, offers
reduced tuition to Utah residents who are enrolled at state institutions of higher еducation. These subsidized tuition rates are funded by the state’s income tax, which is constitutionally earmarked to include funding for higher education. And the Utah tax code ensures that those benefitting from these subsidized rates pay state taxes on their income. In 2012, the legislature passed the Domicile Statute, which establishes the criteria for determining who is domiciled in Utah for tax purposes. One provision deems all Utah residents who are enrolled in a state institution of higher education (resident students) to be domiсiled in Utah and therefore subject to Utah’s income tax. TAH § 59-10-136(1)(a)(ii) (2012). The Domicile Statute also has implications for the spouse of a resident student. If a resident student is married, then the spouse of that student is also considered to be domiciled in Utah and subject to Utah’s income tax.
¶2 This case concerns the Utah State Tax Commission’s determination that Terry Tischmak owes income taxes to the State of Utah for the 2013 and 2014 tax years because he was married to a resident student, even though he was living in Wyoming аt the time. During the years in question, Tischmak and his wife had separated but remained legally married. Tischmak lived and worked in Wyoming and his wife lived in Utah and attended Salt Lake Community College. For these tax years, Tischmak and his wife chose to file their federal taxes jointly as a married couple. Under these circumstances, the Domicile Statute deemed Tischmak to be domiciled in Utah because his wife was a resident student. Tischmak, however, did not pay the Utah state tax on his income in 2013 or 2014. Years later, Tischmаk was audited and notified of the deficiency. He appealed, and after a formal hearing the Tax Commission confirmed that Tischmak owed the State of Utah taxes on his income for both years. Tischmak challenges the Commission’s decision, arguing
that the Domicile Statute is unconstitutional in numerous ways — but predominantly because it violates the federal right to travel. However, Tischmak has not met his burden to persuade us that the Statute is unconstitutional in any of the ways that he advances. Accordingly, wе uphold the decision of the Tax Commission.
BACKGROUND In 2013 and 2014, Terry Tischmak and his wife were
separated. However, they were still legally married and did not officially divorce until several years later. During the years in question, Tischmak’s wife resided in
Salt Lake City in a home that the Tischmaks jointly owned. And she was enrolled as a student at Salt Lake Community College (SLCC), where she enjoyed the benefit of in-state resident tuition.
¶7 Tischmak had left the state and moved to Wyoming — though he would regularly return to Utah to visit family. He lived full time in Rock Springs, Wyoming for all of 2013, and then moved to Cheyennе, Wyoming partway through 2014. During those years, Tischmak worked in Wyoming, was registered to vote in Wyoming, and had a Wyoming driver ’s license. When it came time to file his 2013 and 2014 taxes,
Tischmak did not file a Utah individual tax return for either year. He did, however, file federal tax returns in 2013 and 2014. He chose to file those returns “married filing jointly” with his then -wife. The Tischmaks used the address of their jointly owned Salt Lake City residence on their tax returns, and they received the primary residential property tax exemption on the property. Some years later, the Auditing Division of the Tax
Commission sent Tischmak a Notice of Deficiency and Estimated Income Tax for both 2013 and 2014. Tischmak appealed the deficiencies for both years, arguing that he should not be subject to Utah’s income ta x because he had been living in Wyoming at the time. The Commission held an initial hearing where it found that both Tischmak and his then-wife were domiciled in Utah and subject to Utah’s tax laws for the 2013 and 2014 tax years. Tischmak then requested a formal hearing. After the formal hearing, the Commission entered an order
reaffirming its conclusion that both Tischmaks were domiciled in Utah for the 2013 and 2014 tax years. Its reasoning was based on the Resident-Student Provision of the Domicile Statute, which states that an “individual is considered to have domicile in this state if . . . the individual or the individual’s spouse is a resident student . . . who is enrolled in an institution of higher education . . . in this state.” § 59-10-136(1)(a)(ii) (2012). [1] Because Tischmak’s spouse was enrolled in a Utah institution of higher education during 2013 and 2014, the
[1] The legislature amended the Domicile Statute after the tax
years in question. We сite, apply, and analyze the version of the
Statute in effect in 2013 and 2014.
See State v. Clark
,
Commission concluded that “the statute is clear and unambiguous and based on its express terms both Taxpayers were domiciled in Utah for all of 2013 and 2014.” Therefore, the Commission determined that all of Tischmak’s adjusted gross income was taxable by Utah regardless of where it was earned, and that Tischmak was required to pay taxes to the State of Utah on his full income for those years.
¶12 Tischmak argued to the Commission that the Domicile Statute is unconstitutional for a variety of reasons. But the Commission refrained from evaluating those arguments, noting that it lacked the authority to do so. See Nebeker v. Utah State Tax Comm’n , 2001 UT 74, ¶ 15, 34 P.3d 180 (“It is not for the Tax Commission to determine questions of legality or constitutionality of legislative enactments.” (cleaned up)).
¶13 Tischmak now brings his constitutional arguments to us. We have jurisdiction under Utah Code section 78A-3-102(3)(e)(ii).
STANDARD OF REVIEW Tischmak raises multiple constitutional challenges to the
Domicile Statute. Because there is no decision from the Tax Cоmmission on these questions, there is no standard of review to apply. We address Tischmak’s arguments in the first instance.
ANALYSIS Tischmak does not dispute that for tax purposes, in 2013
and 2014 he was a Utah “resident individual,” see TAH § 59-10-103(1)(q) (2012), under what we refer to as the Resident- Student Provision of the Domicile Statute, see id. § 59-10-136(1)(a)(ii) (2012). Accordingly, all of his adjusted gross income was subject to Utah’s income tax, subject to any applicable additions, subtractions, or adjustments. See id. § 59-10-103(1)(w) (2012). Tischmak argues, however, that the Domicile Statute is unconstitutional in numerous ways because it determines his resident status based on the actions of a third party — his then-wife. We first discuss the operation of the Domicile Statute and explain why it deems Tischmak to have been a Utah resident in 2013 and 2014 even though he was living in Wyoming. We then address Tischmak’s constitutional challenges to the statute. Because Tischmak does not persuade us that the statute is unconstitutional, we uphold the decision of the Tax Commission. I. W AS A TAH R ESIDENT U NDER THE D OMICILE S TATUTE
B ECAUSE H IS W IFE W AS A R ESIDENT S TUDENT The State of Utah imposes a tax on the “state taxable income” of all “resident individual[s].” [2] U ODE § 59-10-104(1) (2008). For the 2013 and 2014 tax years, the tax code considered a person to be a “rеsident individual” for income tax purposes if the person was “domiciled” in Utah or had a home in Utah and was present in the state for approximately half of the year or more. § 59-10-103(1)(q)(i) (2012). Specifically, a person was a resident individual if the person:
(A) [was] domiciled in [Utah] for any period of time during the taxable year, but only for the duration of the period during which the individual is domiciled in this state; or . . .
(B) [was] not domiciled in this state; and (I) maintain[ed] a place of abode in [Utah]; and (II) spen[t] in the aggregate 183 or more days of the taxable year in this state.
Id. It is not disputed that Tischmak lived full time in
Wyoming during the two tax years at issue. He jointly owned a home in Utah and visited Utah frequently, but it has not been suggested that he spent 183 or more days a year in Utah in 2013 or 2014. So subsection 103(1)(q)(i)(B) is not applicable. Rather, the Tax Commission found that Tischmak was a resident individual because he was domiciled in Utah under subsection 103(1)(q)(i)(A). [3]
[2] For resident individuals, “state taxable income” is all of the person’s adjusted gross income, after making any applicable additions, subtractions, and adjustments. U TAH § 59-10-103(1)(w)(i) (2012). Some nonresidents may also have state taxable income if they “derived” income from “Utah sources.” Id. § 59-10-103(1)(w)(ii)(B) (2012).
[3] The tax code does not define the word “domicile,” but it generally means “ [t]he place at which a person has been physically present and that the person regards as home; a person ’ s true, fixed, principal, and permanent home, to which that person intends to
(continued . . .)
The Domicile Statute, Utah Code section 59-10-136 (2012),
establishes the criteria for determining who is domiciled in Utah
for tax purposes. In its briefing, the Tax Commission describes the
Domicile Statute as having three tiers of rules regarding domicile.
The first tier, found in subsection 136(1), deems a person to be
domiciled in Utah if the person or the person’s spouse or
dependents receive certain educational benefits provided by the
state.
Id.
§ 59-10-136(1)(a)
(2012). Relevant here
is
the
Resident ‑ Student Provision, which provides that a person is
domiciled in Utah if the person or the person’s spouse is a “resident
student . . . whо is enrolled in an institution of higher education . . .
in this state.”
Id.
§ 59-10-136(1)(a)(ii) (2012). The first tier is not
rebuttable.
Buck v. Utah State Tax Comm’n
,
Statute, creates a rebuttable presumption that an individual is domiciled in Utah in certain circumstances. U TAH § 59-10-136(2) (2012). These include if the individual or the individual’s spouse claims a residential exemption for the individual’s primary residence, is registered to vote in Utah, or asserts residency in Utah. Id. The third tier, found in subsection 136(3), reflects
traditional common law principles for determining domicile.
Id.
§ 59-10-136(3) (2012);
Buck,
domiciled in Utah under the Resident-Student Provision of tier one, because his wife attended SLCC in 2013 and 2014. Although Tischmak and his wife were estranged and living apart, they had not legally separated [4] or legally divorced. So under the clear return and remain even though currently residing elsewhere ,” or “[t] he residence of a person or corporation for legal purposes. . . . Also termed . . . legal residence ; domicile by operation of law. ” Domicile , B LACK ' S L AW D ICTIONARY (12th ed. 2024) . And Black’s Law Dictionary defines “domicile by operation of law” as “[d] omicile established independently of а person's intention or residence .”
[4] The Commission has previously determined that parties are “legally separated” only when there is a court proceeding and court order such as a decree of separate maintenance, or an order approving a petition for temporary separation. See Initial Hearing
(continued . . .) language of the Resident-Student Provision, Tischmak was domiciled in Utah because his spouse was a “resident student . . . enrolled in an institution of higher education.” U § 59-10- 136(1)(a)(ii) (2012). [5] Thus, hе was a “resident individual” for tax purposes, id. § 59-10-103(1)(q)(A) (2012) , subject to Utah’s tax on his state taxable income, id. § 59-10-104(1) (2012). We now turn to Tischmak’s constitutional challenges to
the Domicile Statute.
II. H AS N OT M ET H IS B URDEN TO P ERSUADE U S HAT THE
D OMICILE S TATUTE I S NCONSTITUTIONAL Tischmak challenges the Tax Commission’s decision on
the grounds that the Domicile Statute is unconstitutional. He raises
five separate constitutional challenges to the Statute, arguing that
it violates the Utah Constitution’s Due Process Clause and Uniform
Operation of Laws P rovision, the U.S. Constitution’s Due Process
Clause and dormant Commerce Clause, and his federal right to
travel. “[T]hose who challenge a statute or ordinance as
unconstitutional bear
the burden of demonstrating
its
unconstitutionali ty.”
Greenwood v. City of N. Salt Lake
,
individually, we make two global observations. First, each constitutional challenge Tischmak makes is
facial, not as- applied. A statute “may be unconstitutional either on
its face or as applied to the facts of a given case.”
Gillmor v. Summit
Cnty.
,
[5] The Tax Commission also noted that Tischmak would be considered domiciled in Utah under tiers two and three, including because he jointly owned a home in Utah for which he took the рrimary residence deduction — although this observation was unnecessary to its determination because the Resident-Student Provision is dispositive. C
facially constitutional, but argues that under the particular facts of
the party’s case, the statute was applied in an unconstitutional
manner.” (cleaned up). Facial challenges, however, are more
difficult to prove because they require the challenger to “establish
that no set of circumstances exists under which the [statute] would
be valid.”
State v. Herrera
,
[6] While many provisions of the Domicile Statute do not determine domicile based on the actions or location of a spouse, many do. See, e.g. , TAH § 59-10-136(1)(a)(i) (2012) (considering an individual to be domiciled “if . . . a dependent [of] the individual or the individual’s spouse . . . is enrolled in a public [school]”); id. § 59-10-136(2)(b) (2012) (establishing a rebuttable presumption that an individual is domiciled if “the individual or the individual’s spouse is registered to vote in this state”); id. § 59- 10-136(2)(c) (2012) (establishing a rebuttable presumption that an individual is domiciled if “the individual or the individual’s spouse asserts residency in [Utah] for purposes of filing an individual income tax return”).
[7] Tischmak does say that he should not have to give up his right to file his taxes jointly in order to exercise his other constitutional
(continued . . .) § 59-10-136(5)(b)(ii) (2012). If taxpayers choose to do this, they are considered to have no spouse for tаx purposes under Utah law. Id. Thus, the Domicile Statute permits taxpayers to choose whether to have their spouse considered in their tax filings. This is likely sufficient, on its own, to dispose of Tischmak’s constitutional claims. Nevertheless, we briefly address each one.
A. The Right to Travel Tischmak first contends that the Domicile Statute deprives him of his fundamental right to travel. He argues this is so because “ [r]ather than permitting a person to choose the State in which they ‘ abide, ’ the Domicile Statute allows a spouse, estrаnged or otherwise, to override the person’s fundamental right.” He continues, “if either spouse engages in activities within the State of Utah that create domicile, that domicile is automatically and irrebuttably imputed to the nonresident spouse.” Beyond that, Tischmak does not develop this constitutional argument. The U.S. Supreme Court has made clear that, even though “ [t]he word ‘ travel ’ is not found in the text of the Constitution . . . the constitutional right to travel from one State to another is firmly embedded in [the Court’s] jurisprudence. ” Saenz v. Roe , 526 U.S. 489, 498 (1999) (cleaned up). The Court has recognized three components of the right to travel:
(1) the right to go from one place to another, by using highway facilities and other instrumentalities of interstate commerce, which includes the right to cross state borders while en route; (2) the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State; and (3) for those travelers who elect to become permanent residents, the right to be treаted like other citizens of that State.
State v. Chettero
,
such travel, when impeding travel is its primary objective, or when it uses any classification which serves to penalize the exercise of rights. But he provides no legal basis for the existence of a right to jointly file taxes.
that right.”
Att ’ y Gen. of N.Y. v. Soto-Lopez
,
the right to travel the Domicile Statute infringes. And ultimately, he does not persuade us that the Stаtute implicates any of the recognized components of the right. It does not prevent anyone from traveling in or out of any state, so it does not implicate the first component. The second component is out, too, because the Statute has nothing to do with the treatment of temporary visitors to Utah or any other state. And we conclude the third component is not implicated either. The third component — the right of travelers who elect to
become permanent rеsidents of a state to be treated like other citizens of that state — is grounded in the Privileges or Immunities Clause of the Fourteenth Amendment. Saenz , 526 U.S. at 502 – 03. That clause prohibits states from “mak[ing] or enforc[ing ] any law which shall abridge the privileges or immunities of citizens of the United States. ” U.S. ONST . amend. XIV, § 1. This third component “ embraces the citizen ’ s right to be
treated equally in her new State of residence .”
Saenz
, 526 U.S. at
505. It has generally been applied to state laws that treat new
residents differently than existing residents.
See, e.g.
,
Connelly v.
Steel Valley Sch. Dist.
,
Domicile Statute might implicate the third component of the right to travel. And it does not appear to do so. It does not create any classifications based on the length of a person’s residency in Utah or any other state. And if Tischmak is treаted differently than other Wyoming residents because he is subject to Utah ’s income tax, it is not because of the length of his residency there. It is because he chose to file his taxes jointly with his spouse, who benefitted from resident tuition in Utah. The same would be true for any other Wyoming resident in the same circumstance. And importantly, Tischmak could have avoided that consequence if he would have filed his taxes separately from his spouse. Accordingly, Tischmak has not persuaded us that the
Domicile Statutе implicates the right to travel. Therefore, he has not persuaded us that it violates that right. See Hope, 9 F.4th at 528 (“Under the Privileges or Immunities Clause, if the right to travel is not implicated, that is the end of the plaintiffs’ claim. The challenged law either is reviewed under strict scrutiny or not at all.”).
B. Substantive Due Process and Uniform Operation of Laws Under the Utah Constitution Tischmak next contends that the Domicile Statute violates
the Utah Constitution’s Due Process Clause and Uniform
Operation of Laws Provision. U ONST . art. I, §§ 7, 24. The Due
Process C lause states that “[n]o person shall be deprived of life,
liberty or property, without due process of law.” art. I, § 7. And
the Uniform Operation of Laws P rovision provides that “[a]ll laws
of a general nature shall have uniform operation.”
Id.
art. I, § 24.
When reviewing claims under either provision, if a
fundamental right — such as the right to travel — is implicated, we
apply strict scrutiny; if not, only rational basis review is required.
In re K.T.B.
,
right to travel is implicated by the Domicile Statute. And Tischmak
has not argued that any other fundamental right is at issue here. So
strict scrutiny does not apply. Instead, rational basis review is
appropriate. And this court “ will uphold a statute under the
rational basis standard if it has a reasonable relation to a proper
legislative purpose, and is neither arbitrary nor discriminatory.”
State v. Angilau
,
C. Due Process Under the U.S. Constitution
Tischmak also argues that the Domicile Statute violates the
U.S. Constitution’s Due Process Clause. Under the Due Process
Clause , the state’s power to tax requires a “’ nexus ’ between the
taxing State and the taxpayer.”
Am. Oil Co. v. Neill
,
Statute subjects individuals to Utah’s income tax without a sufficient minimum connection. Indeed, even in the factual scenario present in this case, he does not explain why a nonresident taxpayer who files jointly with a resident spouse who received reduced in-state tuition lacks a minimum connectiоn to Utah. By failing to engage with the minimum contacts analysis, Tischmak has failed to meet his burden to persuade us that the Domicile Statute violates the federal Due Process Clause.
D. Dormant Commerce Clause
Finally, Tischmak argues that the Domicile Statute violates
the “tax - specific requirements of the Commerce Clause.” The
Commerce Clause grants Congress the authority to regulate
interstate commerce. U.S. ONST . art. I, § 8, cl. 3. It also implicitly
limits the power of state and local governments in that realm,
meaning that “even if Congress has not spoken on an issue of
interstate commerce, states are prevented from encroaching on
Congress’s authority.”
Steiner v. Utah State Tax Comm ’n
,
¶45 Decades ago, the Supreme Court likened dormant
Commerce Clause jurisprudence to a “quagmire.”
Nw. States
Portland Cement Co. v. Minnesota
,
¶46 Given our general posture of reluctance in this area of law, thorough and substantial briefing on this claim is critical. Yet Tischmak has not made the necessary showing that the dormant Commerce Clause is even implicated by the Dоmicile Statute. To implicate the dormant Commerce Clause, there must be discrimination on the basis of “ some interstate element .” Id. ¶ 22 (cleaned up). This typically means one of two things: either a State “may not tax a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State,” or a State may not “impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to local business, or by subjecting interstate commerce to the burden of multiple taxation.” Id. (cleaned up). Tischmak has not identified an “interstate element”
impacted by the Domicile Statute. In a footnote in his reply brief,
he does cite
Comptroller of the Treasury v. Wynne
,
Tischmak has not carried his burden to persuade us that the Domicile Statute violates the dormant Commerce Clause.
CONCLUSION Tischmak has not persuaded us that the Domicile Statute
violates his right to travel or any of the other constitutional provisions he identifies. Accordingly, we uphold the Tax Commission’s decision.