In the year 2000, the Ohio General Assembly and Gov. Bob Taft signed legislation establishing a “presumption of domicile” law for determining whether a person is not an Ohio resident and thus not obliged to pay state income tax. The applicable statute is Ohio Revised Code Section 5747.24 (B), which originally stated that:
“Except as provided in…, an individual who during a taxable year has no more than 182 contact periods in this state, which need not be consecutive, and who during the entire taxable year has at least one abode outside this state, is presumed to be not domiciled in this state if,…, the individual files with the tax commissioner… a statement… verifying that the individual was not domiciled in this state…”
The statute goes on to require the individual filing the statement with the tax commissioner to verify that during the entire taxable year, the individual was not domiciled in Ohio and had at least one abode outside the state. The presumption that the individual was not domiciled in Ohio is irrebuttable unless the individual fails to file the statement or makes a false statement therein.
Unfortunately, for one individual who claimed non-residency in Ohio in tax year 2008, that presumption was no longer irrebuttable. The case was Cunningham v. Testa and it was decided by the Ohio Supreme Court on July 8, 2015. While the taxpayer Mr. Cunningham had a home outside Ohio- in Tennessee (TN)- and claimed it for residency purposes, he also filed for the homestead exemption in Ohio, thereby asserting the Ohio home was his primary residence, and had his utility bills for the TN home sent to his Ohio address. In addition, Mr. Cunningham provided no evidence of his contact periods with Ohio, other than as sworn on the statement. Consequently, the Supreme Court held the taxpayer’s false statement about his residence essentially negates the presumption and upheld the Tax Commissioner’s Ohio income tax assessment on Mr. Cunningham.
So, where does Ohio stand now with respect to how it determines income tax residency/domicile? First, the irrebuttable presumption of non-residency based on no more than 182 contact periods with Ohio is no longer valid. Second, in the wake of the Court ruling, the Ohio Department of Taxation (DOT) has proposed new administrative regulations as guidance on this issue for it and taxpayers. See the link to the proposed rules, as they detail;
A) What DOT will not consider in making a determination of an individual’s domicile, such as the location of financial institutions, credit card issuers, insurance companies and law firms or accounting firms the individual utilizes, among other things;
B) What DOT may consider in making that determination, including the number of contact periods the individual has in Ohio, the individual’s activities in tax years other than the tax year(s) at issue, and any other fact the Tax Commissioner deems relevant, except those set forth in A) above; and,
C) The evidence an individual can present to the Tax Commissioner to support his/her claim of the number of contact periods in Ohio, such as credit card or cash receipts, mail forwarding, travel vouchers, personal checks, utility shut-off statements or bills, etc. and any other writings or recordings tending to show the physical whereabouts of the individual.
Third, there are on-going discussions among taxpayer and business groups and the DOT intended to revise the relevant statutes in light of the Cunningham ruling. So, please check out the Department of Taxation’s proposed residency/domicile rules and email me as to your reaction and input to the many facets of this issue.