findings of fact conclusions of law … orders/2012/mauer v cor 10... · findings of fact...

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STATE OF MINNESOTA TAX COURT COUNTY OF RAMSEY REGULAR DIVISION Kenneth B. Mauer, Appellant, FINDINGS OF FACT CONCLUSIONS OF LAW ORDER FOR JUDGMENT vs. Docket No. 8117 Commissioner of Revenue, Dated: January 20, 2012 Appellee. ________________________________________________________________ The Honorable George W. Perez, Chief Judge of the Minnesota Tax Court, heard this matter on January 12, 2011, at the Minnesota Judicial Center, St. Paul, Minnesota. Bradford S. Delapena, Attorney at Law, represented the Appellant. Rita Coyle De Meules, Assistant Attorney General, represented the Appellee, Commissioner of Revenue. Both parties submitted post-trial briefs. The matter was submitted to the Court for decision pursuant to Minn. Stat. § 271.20. The Court, having heard and considered the evidence adduced at the hearing, and upon all of the files, records and proceedings herein, now makes the following: FINDINGS OF FACT 1. Kenneth B. Mauer (“Appellant”) was born and raised in St. Paul, Minnesota, and attended high school and college in Minnesota. Stip. ¶ 4. 2. In 1986, Appellant began working for the National Basketball Association (“NBA”) as a professional basketball referee. Appellant worked as an NBA referee during calendar years 2003 and 2004, the tax years at issue (“Tax Years.”) He is a 1

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STATE OF MINNESOTA TAX COURT COUNTY OF RAMSEY REGULAR DIVISION Kenneth B. Mauer, Appellant,

FINDINGS OF FACT CONCLUSIONS OF LAW ORDER FOR JUDGMENT

vs. Docket

No. 8117

Commissioner of Revenue, Dated: January 20, 2012 Appellee.

________________________________________________________________

The Honorable George W. Perez, Chief Judge of the Minnesota Tax Court, heard

this matter on January 12, 2011, at the Minnesota Judicial Center, St. Paul, Minnesota.

Bradford S. Delapena, Attorney at Law, represented the Appellant.

Rita Coyle De Meules, Assistant Attorney General, represented the Appellee,

Commissioner of Revenue.

Both parties submitted post-trial briefs. The matter was submitted to the Court for

decision pursuant to Minn. Stat. § 271.20.

The Court, having heard and considered the evidence adduced at the hearing,

and upon all of the files, records and proceedings herein, now makes the following:

FINDINGS OF FACT

1. Kenneth B. Mauer (“Appellant”) was born and raised in St. Paul, Minnesota, and

attended high school and college in Minnesota. Stip. ¶ 4.

2. In 1986, Appellant began working for the National Basketball Association (“NBA”)

as a professional basketball referee. Appellant worked as an NBA referee during

calendar years 2003 and 2004, the tax years at issue (“Tax Years.”) He is a

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member of the National Basketball Referee’s Association (“NBRA.”) Stip. ¶¶ 7,

62.

3. In 1987, Appellant purchased a six-acre plot in Afton, Minnesota (“Afton house.”)

Appellant hired architect Gregory Hallbeck to design a year-round, large, log-

cabin style residence for the property. Stip. ¶ 8. Appellant broke ground in May

1990. In September 1991, Appellant moved into his partially completed house.

Over the next fifteen years, Appellant finished and furnished separate rooms and

sections of his Afton house. Stip. ¶ 9. His Afton house has 10,600 square feet.

Tr. at 129. Appellant obtained a homestead classification in October 1991. Stip.

¶ 8.

4. Appellant is responsible for the maintenance and upkeep of his Afton house and

has never tried to rent it. Stip. ¶ 9.

5. Appellant’s work as an NBA referee requires him to travel to game sites

throughout the United States and Canada during each NBA season. Specifically,

Appellant travels extensively each year between late September and early June.

Stip. ¶ 11.

6. During the Tax Years, NBA referees were assigned to officiate up to 82 pre-

season and regular season games per year. Stip. ¶ 12.

7. Collective bargaining agreements between the NBA and the NBRA contain rules

regulating referee travel and governing referee reimbursement for travel and

accommodation expenses. Stip. ¶ 13.

8. Under NBA rules referees were permitted to return home between games, rather

than travelling to the next assigned city. Stip. ¶ 16.

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9. Appellant scheduled his own flights during the Tax Years. Stip. ¶ 18.

10. In September 2003, Appellant designated his “home airport” as Fort Myers on the

air travel election form provided by the NBA. Jt.1 Ex. 3; Stip. ¶ 15.

11. In 1994, the Internal Revenue Service initiated “Operation Slam Dunk,” an

investigation into whether NBA referees had evaded federal income tax through

their use of airline ticket refund policies. The Justice Department subsequently

indicted 22 referees, including Appellant. Appellant was convicted of three

counts of tax evasion and endeavoring to obstruct and impede due

administration of tax laws. Stip. ¶¶ 27, 28; Tr. at 132-36. Appellant’s final day of

home confinement that he served in Minnesota was June 30, 2003. Stip. ¶ 29.

12. On July 1, 2003, Appellant flew from Minneapolis to Fort Myers for three days to

search for a new home. Stip. ¶ 30. On July 3, 2003, Appellant signed a purchase

agreement to buy a townhouse in the residential development of Heritage Palms

in Fort Meyers, Florida for $235,038. Stip. ¶ 30. The Fort Myers townhouse has

2,000 square feet. Tr. at 155, 282. On July 4, 2003, Appellant left Florida and

flew to Kentucky. He then flew back to Minnesota on July 7, 2003. Ex. 5; Stip. ¶

30.

13. On July 3, 2003, Appellant obtained a Florida driver’s license and surrendered

his Minnesota driver’s license. Ex. 29; Stip. ¶ 32. Also on July 3, 2003, he

registered to vote in Florida. Ex. 90. Appellant voted in Florida by absentee

ballot on November 2, 2004. Stip. ¶ 53.

1 Exhibits 1-92 are joint exhibits. Tr. at 330.

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14. On July 9, 2003, Appellant closed on the Fort Myers townhouse; he did not

personally attend. Ex. 6. Appellant purchased insurance for the townhouse

through a Florida insurance agency. Ex. 7; Stip. ¶ 31.

15. On July 9, 2003, Appellant signed a formal Florida Declaration of Domicile before

a Minnesota public notary. Ex. 8; Stip. ¶ 34.

16. Appellant remained in Minnesota until July 11, 2003, when he left for vacation.

He returned to Minnesota on July 27, 2003, and remained in Minnesota until

August 8, 2003, when he left on another personal trip. He returned to Minnesota

on August 17, 2003. Stip. ¶ 30.

17. During the off-season and before the start of the 2004-05 regular season,

Appellant’s non-game related travel began and ended in Minnesota, including

when he traveled to Florida. Ex. 40.

18. On August 12, 2003, Appellant hired Dave Goldberg, of Heritage Tax and

Consulting, in Florida to assist him with his Florida taxes. Stip. ¶ 35; Ex. 9.

19. On August 27, 2003, Appellant moved some furniture and personal belongings,

including a car, from Minnesota to Fort Myers. Stip. ¶ 36; Ex. 28. A fair amount of

Appellant’s personal belongings remained in his Afton house, requiring Appellant

to carry personal property insurance coverage of $1.6 million during the Tax

Years and through 2006. Ex. 31; Tr. at 214.

20. Appellant contacted Minnesota officials to request removal of homestead

classification for his Afton house. Stip. ¶¶ 37, 38. Minnesota changed Appellant’s

classification for his Afton house to non-homestead for the 2004 assessment

year. Exs. 10-12.

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21. Appellant received homestead classification for the Fort Myers townhouse in

2004.

22. After purchasing the Fort Myers townhouse in July 2003, Appellant informed the

NBA that Fort Myers was his primary address. Stip. ¶ 15. The NBA Referee

Address for the 2003-04 and the 2004-05 seasons listed Appellant’s Fort Myers

address and the Afton address. Ex. 15.

23. The NBA annually publishes the NBA Officials Media Guide. This guide includes

contact information for NBA communications personnel, short profiles of NBA

referees, and an overview of the work of the referee and the basketball game

rules. The NBA Officials Media Guide for the 2003-04 and 2004-05 seasons

listed Afton, Minnesota as Appellant’s residence. Exs. 18-19.

24. On or about July 15, 2003, Appellant entered into a one year agreement with his

friend and Minnesota licensed realtor, Richard Lesch, to sell the Afton house.

Stip. ¶ 50, Ex. 27.

25. On September 30, 2003, Appellant signed and dated a document titled “New

York State, City of New York, and City of Yonkers Certificate of Nonresidence

and Allocation of Withholding Tax.” Appellant listed the Fort Myers residence as

his “Street Address.” Ex. 17.

26. On December 2, 2003, the NBA general counsel sent Appellant a letter that

informed Appellant that since he actually and primarily traveled out of Minnesota

and not Fort Myers, Florida, in October and November of 2003, his air allowance

would be reduced accordingly. Ex. 22.

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27. On January 14, 2004, the NBA general counsel again informed Appellant that his

air travel allowance would be reduced because of flights not taken from/to Fort

Myers, and instead, made to/from Minnesota. Ex. 23.

28. During the Tax Years, Appellant served as a game referee or official for youth

football games in Minnesota, including Minnesota high school football games for

which he was paid by the Minnesota State High School League. Stip. ¶ 56, Tr. at

140, 214-15.

29. Appellant was a member of the Minnesota Officials Association and/or Capital

City Officials Association (n/k/a St. Paul Officials Association), a Minnesota

organization that provides trained officials for Minnesota football and other

athletic events. Stip. ¶ 72.

30. On August 31, 2004, Appellant purchased a second residential property, as an

investment, just down the street from his Florida townhouse. Stip. ¶ 38.

Appellant purchased insurance for his Florida investment property through a

Florida insurance agency. Ex. 32.

31. During the Tax Years, Appellant owned and registered vehicles in both Florida

and Minnesota.

a. A 2004 Lexus GX-470 registered and maintained in Minnesota. Stip. ¶

63(a).

b. A 1993 Lexus LS-400 registered and maintained in Minnesota until late

2003. Stip. ¶ 63(b).

c. A 1989 Rolls Royce registered and maintained in Minnesota. Stip. ¶ 63(c).

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d. A 1988 Honda Accord registered and maintained in Florida from August

2003 through 2004. Stip. ¶ 63(d).

32. During the Tax Years, Appellant maintained bank accounts in both Florida and

Minnesota. Stip. ¶ 67. Appellant maintained the following bank accounts:

a. A checking account at Bank of America, in Tampa. This account was

opened in 2003. Stip. ¶ 67(a).

b. A checking account at Wells Fargo Bank in Minneapolis. This account was

opened prior to 2003, and was maintained throughout the Tax Years. Stip.

¶ 67(b).

c. A line of credit at U.S. Bancorp in Minneapolis. This account was opened

prior to 2003, and was maintained throughout the Tax Years. Stip. ¶ 67(c).

Appellant conducted significant transactions through this account. Ex. 83.

33. In December 2003, the NBA deposited Appellant’s Salary equally between his

Minnesota and his Florida bank accounts. Ex. 84; Tr. at 218-21.

34. Appellant used the services of Minnesota accountants, a Minnesota dentist, a

Minnesota insurance agent/broker, and a Minnesota real estate agent/broker.

Appellant also used the services of a Florida accountant and a Florida insurance

broker. Stip. ¶ 70.

35. During the Tax Years, Appellant received mail at both his Florida townhouse and

Minnesota house. Appellant continues to use his Afton address; no mail

forwarding address is on file with the Afton post office. Ex. 89.

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36. The percentage of time (not counting hours of employment) that Appellant was

physically present in Minnesota and each jurisdiction other than Minnesota: Ex.

40.

a. In 2003, Appellant was physically present in Minnesota for 118 days

between January 1 and July 1, and 85 days between July 3 and

December 31 for a total of 203 days. Appellant was physically present in

Florida on July 3, 2003, when he purchased his Fort Myers townhouse,

and for an additional 23 days between July 1 and December 31, 2003.

After he purchased the Florida residence he spent 26 days in Florida and

73 days traveling.

b. In 2004, Appellant was physically present for 181 days in Minnesota, 64

days in Florida, and 121 days in other locations.

37. Appellant has two golf memberships, one for each house he owns in the Heritage

Palms community in Fort Myers.

38. Appellant filed for 2003 and 2004 New York Nonresident and Part-year Resident

individual income tax returns. Exs. 34, 37. On these returns, Appellant listed his

Fort Myers residence as his mailing address.

39. In June 2004, Appellant notified the Internal Revenue Service about his Florida

address. Ex. 36; Tr. at 193.

40. In October 2005, Appellant filed a 2003 Minnesota individual income tax return

as a part-year resident after receiving a notice from the Department of Revenue

requesting that return. Appellant did not file a Minnesota individual income tax

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return for tax year 2004, and did not report any Minnesota-source income for

2004. Stip. ¶ 65.

41. Appellant was single during the Tax Years.

42. On March 31, 2009, the Commissioner issued a Notice of Determination on

Appeal affirming the Commissioner’s Audit Report and assessing $97,055.04 in

tax, penalty and interest for the individual income tax periods ending December

31, 2003, and December 31, 2004. Ex. 41.

Conclusions of Law

The Order of the Commissioner of Revenue, dated March 31, 2009, is hereby affirmed.

IT IS SO ORDERED. LET JUDGMENT BE ENTERED ACCORDINGLY. A STAY OF FIFTEEN DAYS IS HEREBY ORDERED. THIS IS A FINAL ORDER.

______________________________________________________________

BY THE COURT, George W. Perez, Chief Judge MINNESOTA TAX COURT

DATED: January 20, 2012

Memorandum

Background

Kenneth B. Mauer (“Appellant”) was born and raised in St. Paul, Minnesota, and

attended high school and college in Minnesota. While in college and thereafter, Appellant

refereed high school and college football, baseball, and basketball games. In 1986,

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Appellant began working for the National Basketball Association (“NBA”) as a professional

basketball referee. Appellant worked as an NBA referee during calendar years 2003 and

2004 (“Tax Years”) and is a member of the National Basketball Referee’s Association.

Appellant continued to referee high school games in Minnesota during the Tax Years.

In 1987, Appellant purchased a six-acre plot in Afton, Minnesota (“Afton house.”)

Appellant hired architect Gregory Hallbeck to design a year-round, large, log-cabin style

residence for the property. Appellant broke ground in May 1990. In September 1991,

Appellant moved into his partially completed house. Over the next fifteen years,

Appellant finished and furnished separate rooms and sections of his Afton house. His

Afton house has 10,600 square feet.

Appellant testified that after his conviction in Minnesota for three counts of tax

evasion and endeavor to obstruct and impede due administration of tax laws, he

decided to move to Florida in July of 2003. On July 1, 2003, Appellant arrived in Fort

Myers, Florida and viewed over 20 properties. On July 3, 2003, he entered into a

purchase agreement for a townhouse in the Heritage Palms development community

(“Fort Myers townhouse.”) The purchase price was approximately $235,038 and the

townhouse consisted of about 2,000 square feet. Appellant also registered to vote in

Florida and applied for a Florida driver license before returning to Minnesota (via

Kentucky) on July 7, 2003.

Appellant contacted Minnesota officials to request removal of homestead

classification for his Afton house. Minnesota changed Appellant’s classification for his

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Afton house to non-homestead for the 2004 assessment year. Appellant received

homestead classification for the Fort Myers townhouse in 2004, but not for 2003.

Appellant moved some furniture and personal belongings, including a car, from

Minnesota to Fort Myers in August 2003. A fair amount of Appellant’s personal

belongings remained in the Afton residence, requiring him to carry personal property

insurance coverage of $1.6 million during the Tax Years and through 2006.

In August 2004, Appellant bought a second townhouse in the same Heritage

Palms development community. Appellant maintains homeowner’s insurance on both

Florida properties from a Florida insurance agent.

After Appellant purchased the Florida townhouse, he spent 85 days in

Minnesota, 26 days in Florida, and 73 days traveling. Appellant spent a total of 203

days in Minnesota in 2003. In 2004, Appellant spent 181 days in Minnesota, 64 days in

Florida, and 121 days in locations other than Minnesota or Florida.

Appellant is responsible for the maintenance and upkeep of his Afton house and

has never tried to rent it. Appellant kept three Minnesota registered vehicles at his Afton

house and one registered vehicle in Florida during the Tax Years.

On or about July 15, 2003, Appellant entered into a one year agreement with his

friend and real estate agent, Richard Lesch, to sell his Afton house. It was not listed for

sale using the Multiple Listing Service (MLS) or any other listing service. His Afton

house was not listed in any luxury homes sales magazine. A lockbox was not used and

there were no “for sale” signs used outside the house. His Afton house was not shown

to any potential buyers, nor were there any open house events. Mr. Lesch testified that

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he produced and distributed flyers for the sale of the Afton house. Mr. Lesch could only

recall distributing flyers at the 3M offices. Mr. Lesch could not produce copies of the

flyers, nor did he have any records of any potential buyers. The asking price was $3.1

million. The only evidence in the record to indicate the Afton house was for sale was

Appellant’s agreement with Mr. Lesch. While Mr. Lesch offered suggestions to list the

house or lower the asking price, Appellant rejected such suggestions. His Afton house

did not sell and Appellant made no further effort to see it sold.

Appellant testified that he would “never go to Florida in July, August and

September, ever.” Appellant has ‘”never wanted to and never will” spend time in Florida

in those months “because of the humidity and the hurricanes. I am not going to, I don’t

have to.”

After buying the Florida townhouse and returning to Minnesota, Appellant left for

vacations in July and August. In August and September 2003, Appellant left from

Minnesota for short trips to Florida, returning to Minnesota to officiate at high school

football games. In September, Appellant left for a vacation in Phoenix, again returning

to Minnesota in time to officiate a football game before leaving for NBA camp.

After he bought the Florida townhouse, Appellant notified the NBA of his new

Florida address. He did so because in that NBA season (2003-04), the NBA based

referee travel “from where you lived.” The referee address list made available at the fall

2003 camp included both Appellant’s Florida and Minnesota addresses. The NBA

continued to use Appellant’s Afton, Minnesota address through the 2004 tax year for tax

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purposes. Appellant used his Florida address for New York. Appellant waited until June

2004 to notify the Internal Revenue Service about his Florida address.

Once the NBA season started, Appellant made his own travel arrangements. For

the first month, October 2003, Appellant’s NBA travel started primarily from Minnesota,

with returns to Minnesota between game assignments. With one exception–a trip at the

end of the month from a Texas game assignment to Florida–Appellant returned to

Minnesota from his October game assignments. Between the start of the NBA season in

October 2003, and December 2003, Appellant was physically present in Minnesota on

36 days, only 1 day (October 23) which was a game assignment. Over those same 3

months he was in Florida for 15 days, 2 days (November 12, December 9) which were

game assignment days.

The NBA expressed concern about Appellant’s travel arrangements during the

2003-04 season because it had paid Appellant’s travel allowances based on his

designated use of Fort Myers as his “home airport.” The NBA had learned that

Appellant was “actually and primarily traveling out of a home based on Minneapolis,

Minnesota – not Fort Myers.” In January 2004, the NBA notified Appellant that it would

not pay a requested air travel allowance for a January 11 flight to Fort Myers because

Appellant was staying in Minnesota “during that period and would not, in fact, travel to

Fort Myers.”

In 2004, Appellant spent 181 days in Minnesota, 64 days in Florida, and 121

days in other locations. Appellant was not in Minnesota in March 2004. He spent no

time in Florida in July and September, 2004. He left from and returned to Minnesota for

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game assignments in January and February 2004. Appellant was in Florida for 2 days in

April 2004 for a game assignment. He traveled to all of his game assignments in April

2004 by leaving from and returning to Minnesota. Similarly, in May 2004, Appellant

arranged his travel between game assignments by leaving from and returning to

Minnesota.

In the off-season before the start of the 2004-05 regular season, Appellant’s non-

game related travel began and ended in Minnesota, including when he traveled to

Florida.

Appellant’s NBA salary was deposited into his Minnesota bank account through

November 2003. He opened a bank account in Fort Myers, Florida, in December 2003,

and thereafter, one-half of his NBA salary was deposited in the Florida bank account,

with the balance continuing to be deposited in his Minnesota account. There was no

other evidence of financial accounts opened or used in Florida other than the one bank

account.

Appellant maintained and used, in 2003-04, longstanding Minnesota professional

relationships. He used the services of a Minnesota realtor (Mr. Lesch) for his real estate

needs in Minnesota and Florida. He has used two different Minnesota accountants. He

used a Minnesota accountant (Mr. Deegan) to advise him on the steps to take to

establish a claim to Florida residency. Mr. Goldberg, the Florida accountant, was

retained after Appellant bought the Florida house to provide information “to him [on] how

he becomes a Florida resident.”

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During the Tax Years, Appellant received mail at both his Florida townhouse and

Minnesota house. Appellant continues to use his Afton address; no mail forwarding

address is on file with the Afton post office.

Standard of Review

Orders of the Commissioner are presumed correct and valid. Minn. Stat. §

271.06, subd. 6 (2008); Jansen v. Commissioner of Revenue, Docket Nos. 7695 et al.

(Minn. Tax Ct. June 2, 2005). The taxpayer bears the burden of demonstrating the

challenged order is incorrect. Wybierala v. Commissioner of Revenue, 587 N.W. 2d

832, 835 (Minn. 1998). “Placing the burden of proof on the taxpayer in civil tax cases is

in accordance with the common law principle of placing the burden on the party who

has particular knowledge of the relevant facts.” F-D Oil, Co. Inc. v. Commissioner of

Revenue, 560 N.W.2d 701, 707 (Minn. 1997) (citations omitted).

Minnesota Statute Section 271.06, subd. 6 provides that the Tax Court shall hear

every appeal de novo. A trial de novo means “a case shall be tried the same as if it had

not been tried before. . .” Stronge & Lightner Co. v. Commissioner of Taxation, 36

N.W.2d 800, 807 (Minn. 1949). In addition, upon a trial de novo, a taxpayer may

introduce evidence. The decision of the court “may or may not be based upon the same

evidence as the commissioner had.” Id.

Issue

The issues are: (1) whether Appellant was a resident of Minnesota for income tax

purposes for the Tax Years under Minn. Stat. § 290.01, subd. 7(a) (2006); and (2) if so,

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does Commissioner’s application of Factor W2 of the Residency Rule violate the

Commerce Clause of the United States Constitution; and further (3) does

Commissioner’s application of Factor W of the Residency Rule violate the Equal

Protection provisions of the United States and Minnesota Constitutions.

For the reasons set forth below, we find that Appellant was a resident of

Minnesota for the Tax Years and that Commissioner’s application of Factor W of the

Residency Rule does not violate the Commerce Clause of the United States

Constitution or the Equal Protection provisions of the United States and Minnesota

Constitutions.

Applicable Authority

In Minnesota, “[a]ll net income of a resident individual is subject to tax.” Minn.

Stat. § 290.014, subd. 1 (2008). The definition of “resident” applicable here is “any

individual domiciled in Minnesota.” Minn. Stat. § 290.01, subd. 7(a) (2008).

“Domicile” is defined in Minnesota Rules 8001.0300, subp. 2:

The term ‘domicile’ means the bodily presence of an individual

person in a place coupled with an intent to make such a place

one's home. The domicile of any person shall be that place in

which that person's habitation is fixed, without any present

2 Factor W: Percentage of time (not counting hours of employment) that the person is physically present in Minnesota and the percentage of time (not counting hours of employment) that the person is physically present in each jurisdiction other than Minnesota.

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intentions of removal therefrom, and to which, whenever absent,

that person intends to return.3

The taxpayer has the burden of proving a new domicile outside of Minnesota.

Sanchez v. Commissioner of Revenue, 770 N.W.2d 523 (2009). No formula exists for

determining a change in one’s domicile. Commissioner of Revenue v. Stamp, 296

N.W.2d 867, 870 (Minn.1980), but once established, a domicile is presumed to continue

until the contrary is shown. Minn. R. 8001.0030, subp. 2. One may, therefore, live in

another state for a period of time without affecting or altering domiciliary status in

Minnesota. Sanchez, 770 N.W.2d at 526; Sandberg v. Commissioner of Revenue, 383

N.W.2d 277, 283 (Minn. 1986). Because the intent to remain in a fixed place is

determinative, mere physical removal is insufficient. The inquiry focuses on intent,

examining actions and words to discover that intent. Sanchez, 770 N.W.2d at 526;

Sandberg, 383 N.W.2d at 283.

Furthermore, an existing domicile is presumed to continue until a new one is

established. Manthey v. Commissioner of Revenue, 468 N.W.2d 548, 550 (Minn.

1991); Page v. Commissioner of Revenue, Docket No. 4011 (Minn. Tax Ct. Mar. 12,

1986). A new domicile is proved by showing both a physical presence and intent to

make a home in the new place. Stamp, 296 N.W.2d at 870.

When one announces an “intent to make a new abode one’s home,

the trier of fact may consider the acts and circumstances of that person

in evaluating the sincerity of the announced intent.” Comm’r of Revenue v. Stamp, 296 N.W.2d 867, 870 (Minn.1980) Intent is evaluated on a case-by-case

3 Minn. R. 8001.0300, subp. 2.

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basis, and a taxpayer’s actions are of more significance than his or her statements. Minn. R. 8001.0300, subp. 2.

Sanchez, 770 N.W.2d at 526.

To aid the trier of fact in determining whether a taxpayer remains domiciled in

Minnesota for tax purposes, the Department of Revenue compiled a list of 26 factors to

consider in determining whether or not a person is domiciled in this state, no single one

of which is determinative. Minn. R. 8001.0300, subp.3 (2007).

Minn. R. 8001.0300, subp.3 (2007). Considerations. The following

items listed will be considered in determining whether or not a

person is domiciled in this state:

A. location of domicile for prior years;

B. where the person votes or is registered to vote, but casting an illegal vote does not establish domicile for income tax purposes;

C. status as a student;

D. classification of employment as temporary or permanent;

E. location of employment;

F. location of newly acquired living quarters whether owned or rented;

G. present status of the former living quarters, i.e., whether it was sold, offered for sale, rented, or available for rent to another;

H. whether homestead status has been requested and/or obtained for property tax purposes on newly purchased living quarters and whether the homestead status of the former living quarters has not been renewed;

I. ownership of other real property;

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J. jurisdiction in which a valid driver's license was issued;

K. jurisdiction from which any professional licenses were issued;

L. location of the person's union membership;

M. jurisdiction from which any motor vehicle license was issued and the actual physical location of the vehicles;

N. whether resident or nonresident fishing or hunting licenses purchased;

O. whether an income tax return has been filed as a resident or nonresident;

P. whether the person has fulfilled the tax obligations required of a resident;

Q. location of any bank accounts, especially the location of the most active checking account;

R. location of other transactions with financial institutions;

S. location of the place of worship at which the person is a member;

T. location of business relationships and the place where business is transacted;

U. location of social, fraternal, or athletic organizations or clubs or in a lodge or country club, in which the person is a member;

V. address where mail is received;

W. percentage of time (not counting hours of employment) that the person is physically present in Minnesota and the percentage of time (not counting hours of employment) that the person is physically present in each jurisdiction other than Minnesota;

X. location of jurisdiction from which unemployment compensation benefits are received;

Y. location of schools at which the person or the person's spouse or children attend, and whether resident or nonresident tuition was charged; and

Z. statements made to an insurance company, concerning the person's residence, and on which the insurance is based.

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Any one of the items listed above will not, by itself, determine domicile.

Minn. R. 8001.0300, subp.3 (2007).

Discussion

We apply the 26 factors to this case; no one factor is determinative. Instead we

consider all of Appellant’s “acts and circumstances” related to Minnesota and Florida.

Location of domicile for prior years

The parties agree that Appellant was domiciled in Minnesota prior to 2003.

Where the person votes or is registered to vote

On July 3, 2003, Appellant registered to vote in Florida. Appellant did not vote in

any jurisdiction in 2003, but in 2004, Appellant voted by absentee ballot on the second

of November.

Classification of employment as temporary or permanent and location of the employment

Appellant is a permanent employee of the National Basketball Association,

(NBA) which is headquartered in New York. As part of his work, he travels frequently

throughout the basketball eight month season.

Location of newly acquired living quarters whether owned or rented, and the ownership of any other real property

Appellant purchased a townhouse in Fort Meyers, Florida in July of 2003. On

August 31, 2004, Appellant purchased another townhouse as an investment property in

the same area.

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Present status of the former living quarters, i.e., whether it was sold, offered for sale, rented, or available for rent to another

Appellant entered into a one year agreement with his friend and real estate

agent, Richard Lesch to sell Appellant’s Afton house. The Afton house was not listed

for sale using the Multiple Listing Service (MLS) or any other listing service. The Afton

house was not listed in any luxury homes sales magazine. A lockbox was not used and

there were no “for sale” signs used outside the house.. The Afton house was not shown

to any potential buyers. Nor were there any open houses held. Mr. Lesch testified that

he produced and distributed flyers advertising the sale of the Afton house. Mr. Lesch

could only recall distributing flyers at the 3M offices. Mr. Lesch could not produce copies

of the flyers nor did he have any records of any potential buyers. The asking price was

$3.1 million. While Mr. Lesch offered suggestions to list the house or lower the asking

price, Appellant rejected such suggestions. The only evidence in the record to indicate

the Afton house was for sale was Appellant’s agreement with Mr. Lesch. The Afton

house did not sell and Appellant made no further effort to see it sold. Although Appellant

may choose any method he wishes to sell his home, we find no credible evidence to

establish that his Afton house listed for sale or of its market availability.

Whether homestead status has been requested and/or obtained for property tax purposes on newly purchased living quarters and whether the homestead status of the former living quarters has not been renewed;

In August of 2003, Appellant requested a homestead classification for his Florida

townhome and his homestead classification for his Afton house was removed for the

2004 assessment year. Appellant obtained homestead classification for the Florida

townhome in 2004.

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Jurisdiction in which a valid driver's license was issued

On July 3, 2003, Appellant obtained a Florida driver’s license and surrendered

his Minnesota license.

Location of the person's union membership

Appellant is a member of the National Basketball Referee’s Association,

and has been since 1986. It maintains an office in Washington, D.C.

Jurisdiction from which any motor vehicle license was issued and the actual physical location of the vehicles

During the Tax Years, Appellant had four registered vehicles, three in Minnesota,

and one in Florida. Appellant’s 2004 Lexus GX-470, a 1993 Lexus LS-400, and a 1989

Rolls Royce Corniche, were registered and located in Minnesota, while Appellant’s

1988 Honda Accord was registered and located in Florida from August of 2003 through

2004.

Whether an income tax return has been filed as a resident or nonresident

Appellant filed his 2003 Minnesota individual income tax in 2005 as a part-year

resident. He did not file a 2004 Minnesota return, or report any Minnesota income.

Appellant also filed for 2003 and 2004 New York Nonresident and Part-year Resident

individual income tax returns.

Location of any bank accounts, especially the location of the most active checking account

Appellant had two bank accounts in Minnesota and one in Florida. In October

2003, Appellant directed the NBA to deposit his salary equally between his Minnesota

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and Florida bank accounts. He also maintained a line of credit through which Appellant

conducted significant transactions during the Tax Years account. All of these were

either opened in 2003 or prior, and all were maintained throughout the years at issue.

During the Tax Years Appellant maintained active bank accounts in both Minnesota and

Florida, with more financial transactions occurring in Minnesota.

Location of business relationships and the place where business is transacted

Appellant used the services of Minnesota accountants, a Minnesota dentist,

insurance agent/broker, and real estate agent/broker. Appellant also used the services

of a Florida accountant and a Florida insurance broker.

Location of social, fraternal, or athletic organizations or clubs or in a lodge or country club, in which the person is a member

Appellant was a member of the Minnesota Officials Association and/or Capital

City Officials Association (n/k/a St. Paul Officials Association), a Minnesota organization

that provided trained officials for Minnesota football and other athletic events. In 2004,

Appellant had two memberships in the Heritage Palms Club house, a local golf course

and club house.

Address where mail is received

Appellant received mail at both his Florida townhouse and Minnesota house.

Appellant continued to use his Afton address; no mail forwarding address was on file

with the Afton post office.

Percentage of time (not counting hours of employment) that the person is physically present in Minnesota and the percentage of time (not counting hours

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of employment) that the person is physically present in each jurisdiction other than Minnesota

In 2003, Appellant was physically present in Minnesota for 118 days between

January 1 and July 3, and 85 days between July 3 and December 31, 2003, for a total

presence in Minnesota of 203 days in 2003. Appellant was physically present in Florida

on July 1, 2003, when he purchased his Fort Myers townhouse and for an additional 23

days between July 1, and December 31, 2003. In 2004, Appellant was physically

present 181 days in Minnesota, 64 days in Florida, and 121 days in other locations

Appellant claims he changed his domicile from Minnesota to Florida in July of

2003 when he purchased his Fort Myers townhouse, obtained homestead classification

for the 2004 assessment year, registered to vote, and acquired a Florida driver’s

license. Further, Appellant argues that he does not have to spend the three plus

months he is on vacation from his NBA job in Florida and that Commissioner only

considered Factor W, the percentage of time spent in Minnesota and the percentage of

time spent in other jurisdictions, in determining that Appellant did not change his

domicile from Minnesota to Florida. Appellant admits that he was domiciled in

Minnesota during the first part of 2003, January through June, thus, we examine

Appellant’s “act and circumstances” from July 2003 through December 2004.

Appellant claims that, on the advice of his accountant and others, he changed his

domicile from Minnesota to Florida in July 2003 when he purchased his Fort Myers

townhouse, obtained homestead classification for the 2004 assessment year, registered

to vote, and acquired a Florida driver’s license. While these are some of the factors to

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consider in determining domicile, no one factor is determinative. We consider all 26

factors.

Appellant contends that Commissioner only counted the number of days where

Appellant spent time under Factor W in determining Appellant did not change his

domicile from Minnesota to Florida. We do not agree. While we do consider the number

of days Appellant spent in Minnesota and Florida, we also consider Appellant’s pattern

of travel during his non-working days and vacation days, as well as comparing the first

six months of 2003 when Appellant was domiciled in Minnesota with the first six months

of 2004, the following year when Appellant claims he domiciled in Florida. We also

consider where Appellant did his banking, where he maintained his business and family

relationships, where he maintained an abode, and the location of his personal

belongings and cars.

First, Appellant did spend significantly more days in Minnesota then Florida. In

2003, Appellant was physically present in Minnesota for 118 days between January 1

and July 3, and 85 days between July 3 and December 31, 2003, for a total presence in

Minnesota of 203 days in 2003. Appellant was physically present in Florida 23 days

between July 1 and December 31, 2003. In 2004, Appellant was physically present 181

days in Minnesota, 64 days in Florida, and 121 days in other locations. Where Appellant

spent most of his days is critical but we also consider the pattern surrounding

Appellant’s presence, in Minnesota, Florida and elsewhere.

Second, we examine Appellant’s travel pattern during his work season.

Appellant’s work as an NBA referee requires extensive travel during the eight month

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season (October to May) which limits the time Appellant can spend in any one place.

Yet, under NBA rules, referees were permitted to return home between games, rather

than traveling to the next assigned city. Appellant testified the NBA allowed him to

make his own travel arrangements, and he did. Consequently, Appellant chose where to

fly home between game assignments. Despite informing the NBA that his home airport

was Fort Myers, the record indicates most of Appellant’s travel between games was to

and from Minnesota.

For example, starting the 2003-04 NBA season, in October Appellant flew out of

Minnesota after spending four days there, then returned to Minnesota for five more days

after completing his game assignments. Appellant then flew from Minnesota for one

game assignment, and then returned to Minnesota for seven more days, including a

game assignment in Minnesota, and then Appellant flew to Florida for three days. For

October, Appellant spent 16 days in Minnesota, 3 in days Florida and 12 days in other

locations. The succeeding months have a similar pattern, where Appellant travels

between games more often than not to Minnesota. The record indicates where

Appellant spent his days each month for the remainder of the 2003-04 NBA season.

See the table below. Ex. 40.

03-04 Season Minnesota Florida Other

October 16 3 12

November 12 5 13

December 8 7 16

January 12 7 12

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February 14 6 9

March 0 11 20

April 20 2 8

May 24 3 4

Totals 106 44 94

With the exception of March, where Appellant spent no time in Minnesota, in all

other months during the NBA season, Appellant’s pattern, more often than not, was to

return to Minnesota between game assignments. This pattern continued during the

2004-05 NBA season. See the table below. Ex. 40.4

A

gain,

Appella

nt was

free to choose where to travel between game assignments yet, more often than not,

Appellant chose to return to Minnesota.

Third, Appellant’s NBA work allowed him vacation for the months of July, August

and September. Appellant testified that he would “never go to Florida in July, August

and September, ever.” Appellant has “never wanted to and never will” spend time in

Florida in those months “because of the humidity and the hurricanes. I am not going to, I

4 We did not consider the remainder of the 2004-05 NBA season because it’s after the Tax Years.

04-05 Season Minnesota Florida Other

October 12 7 12

November 7 8 15

December 8 6 17

Totals 37 21 44

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don’t have to.” It is, however, Appellant who claimed to change his domicile from

Minnesota to Florida. Yet during July, August and September of 2003, Appellant spent a

total of 11 days in Florida and a total of 49 days in Minnesota, this is the same

timeframe during which Appellant claims he changed his domicile from Minnesota to

Florida. In 2004 during July, August and September, Appellant spent a total of 7 days in

Florida and a total of 61 days in Minnesota. Appellant was free to choose where to

spend his vacation time and the record is clear when Appellant is free to where to spend

his vacation, he chose Minnesota.

Furthermore, when we compare the first six months of 2003 when Appellant was

domiciled in Minnesota with the first six months of 2004, the following year when

Appellant claims he domiciled in Florida, Appellant’s travel patterns are similar. For

example, Appellant spent 118 days in Minnesota and 5 days in Florida during the first

six months of 2003 and 93 days in Minnesota and 36 days in Florida during the first six

months of 2004. In considering all the circumstances involving Factor W, we find

Appellant does not meet Factor W.

We consider where Appellant conducted his active banking and conclude that it

was in Minnesota. Appellant had two bank accounts in Minnesota and one in Florida. In

October 2003, Appellant directed the NBA to split his salary between his Minnesota and

Florida bank accounts. He also maintained a line of credit with another Minnesota bank

from which he conducted significant transactions during the Tax Years.

Next, we consider where he maintained his business and family relationships.

Appellant used the services of Minnesota accountants, a Minnesota dentist, insurance

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agent/broker, and real estate agent/broker. Appellant also used the services of a Florida

accountant and a Florida insurance broker. As to memberships, Appellant was a

member of the Minnesota Officials Association and/or Capital City Officials Association

(n/k/a St. Paul Officials Association), a Minnesota organization that provided trained

officials for Minnesota football and other athletic events. In 2004, Appellant had two golf

memberships in Florida. Appellant was single with no children during the Tax Years and

family consisted of his parents and siblings, who reside in Minnesota. We find that

more of Appellant’s business and family contacts were in Minnesota.

Further, we consider the Afton house that Appellant maintained in Minnesota,

along with his personal belongings and cars. In 1987, Appellant purchased a six-acre

plot in Afton, Minnesota (“Afton house”) with a commanding a view of the St. Croix

River. Appellant hired an architect to design a year-round, large, log-cabin style

residence for the property. Appellant broke ground in May 1990. In September 1991,

Appellant moved into his partially completed house. Over the next fifteen years,

Appellant finished and furnished separate rooms and sections of his Afton house.

Although Appellant moved some of his personal belongings from Minnesota to Fort

Myers in August 2003, there remained a fair amount of Appellant’s personal belongings

in his Afton house, requiring him to carry personal property insurance coverage of $1.6

million during the Tax Years and through 2006. Also, Appellant had four registered

vehicles, three in Minnesota, and one in Florida. Appellant’s 2004 Lexus GX-470, a

1993 Lexus LS-400, and 1989 Rolls Royce were registered and located in Minnesota,

while Appellant’s 1988 Honda Accord was registered and located in Florida from August

of 2003 through 2004. Thus, Appellant’s luxury home, valuable collectables, and classic

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car were all kept in Minnesota, not Florida, where Appellant claims he domiciled in

2003.

Finally, in considering all of Appellant’s “act and circumstances,” the destination

of Appellant’s life is in Minnesota. Appellant is a highly mobile person with many

choices as to when and where to travel and more often than not, Appellant chooses to

travel to and from Minnesota. As the Minnesota Supreme Court reasoned in Luther v.

Commissioner of Revenue, when a person avails themselves of the many services,

benefits, and protections afforded by Minnesota, in return, Minnesota requires that

person to contribute to the costs associated with providing those services, benefits, and

protections by taxing that person as a resident of Minnesota. We find that Appellant did

not domicile in Florida for the Tax Years. Luther v. Commissioner of Revenue, 588

N.W.2d 502, 509 (Minn.), cert. denied, 528 U.S. 821 (1999). Therefore, we find

Appellant was domiciled in Minnesota for the Tax Years.

Constitutional Claims

Appellant raises two constitutional claims. First, that Commissioner’s application

of Factor W of the Residency Rule violates the Commerce Clause of the United States

Constitution, and second, that Commissioner’s application of Factor W of the Residency

Rule violates the Equal Protection provisions of the United States Constitution and the

Minnesota Constitution.5

First, Appellant claims Commissioner’s application of Factor W of the Residency

Rule violates the Commerce Clause of the United States Constitution. We do not agree.

5 The Erie Shuffle was completed on November 10, 2009, pursuant to Erie Mining Co. v. Commissioner of Revenue, 343 N.W.2d 261 (Minn. 1984).

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The Minnesota Supreme Court recently held that “Because states have wide latitude in

establishing their taxation schemes, and statutes will be declared unconstitutional only

when absolutely necessary, [the taxpayer] bear[s] a heavy burden at each step of the

[Commerce Clause] inquiry.” Stelzner v. Commissioner of Revenue, 621 N.W.2d 736,

740 (Minn. 2001). Appellant has not met his heavy burden. Appellant focuses only on

his work travel when, in contrast, the totality of his “acts and circumstances” are

considered. In addition, the distinction on which Appellant rests his constitutional

claims–his “mandated” work travel–is controlled almost solely by Appellant. In this

circumstance, we concluded that the “minimal amount of time” spent in Florida “tended

to indicate that the Florida home was a vacation home rather than a primary home.”

There is no Commerce Clause violation in finding Appellant did not change his

Minnesota domicile, given that he arranges his travel to suit his personal preferences.

The premise of Appellant’s Commerce Clause claim is that the Commissioner’s

residency rule, in particular Factor W, makes it more difficult for him to establish

domicile in another state because he travels for work. He alleges that applying Factor W

without regard to mandatory, work-related travel, discriminates against him because it

deters him from actively pursuing his livelihood through travel. Appellant’s claim fails at

the initial inquiry, which considers whether application of Minnesota residency rules,

including Factor W, implicates the Commerce Clause. Stelzner, 621 N.W.2d at 740

(noting two-step inquiry for Commerce Clause challenges, beginning with whether

clause implicated). Appellant argues that his travel across states to work implicates the

Commerce Clause. The United States Supreme Court has recognized that

transportation of persons across state lines can implicate the Commerce Clause.

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Camps Newfound/Owatonna v. Town of Harrison, Maine, 520 U.S. 564, 573 (1997).

However, this comment was made in the context of commercial activities that subjected

the taxpayer to the state’s tax. See Id. (noting that taxpayer’s camping services are

“unquestionably engaged in commerce, not only as a purchaser but also a provider of

goods and services”) (citations omitted); Chapman v. Commissioner of Revenue, 651

N.W.2d 825, 833 (Minn. 2002) (recognizing Minnesota’s AMT provisions implicate

commerce for purposes of individual taxpayer’s challenge because “paying and making

donations to charitable organizations across state lines” to organizations that are a

“substantial sector of the economy” implicates Commerce Clause).

In contrast, the Commerce Clause is not implicated when the taxpayer simply

seeks protection from a state tax because the taxpayer is deemed to be a resident of

the taxing state. General Motors Corp. v. Tracy, 529 U.S. 278 (1997) (“The dormant

Commerce Clause protects markets and participants in markets, not taxpayers as

such.”). Consequently, the Minnesota Supreme Court has twice held the Commerce

Clause is not implicated by this state’s application of residency rules to taxpayers

notwithstanding their interstate travel.

In Luther v. Commissioner of Revenue, the taxpayer challenged the

Commissioner’s application of the non-domiciliary residency rules because it impacted

her “right under the Commerce Clause ton interstate travel.” 588 N.W.2d 502, 511

(Minn. 1999). The Court rejected this argument:

Here, it is not Luther's movement across state lines that is being

taxed. Instead, Luther was required to pay Minnesota income tax

on her net worldwide income because, through her substantial

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contacts with Minnesota, she availed herself of the many

services, benefits, and protections provided to her by Minnesota.

The requirement that she pay Minnesota income tax was triggered

by conduct that took place wholly within Minnesota and that did not substantially affect interstate commerce.6

Appellant deems Luther inapposite because the Court addressed Minnesota’s non-

domiciliary rules. But the Court’s reasoning applies equally to Appellant’s domiciliary

residency status because he also had “substantial contacts” with Minnesota and availed

himself of the “many services, benefits, and protections” the state provided. In short, his

domiciliary status was “triggered by” his Minnesota presence and contacts, not his

interstate travel.

In Stelzner, the taxpayers claimed a Nevada residence, but were present in

Minnesota more than one-half the year. 621 N.W.2d. at 738. They conducted their

business (foreign currency exchange services for casinos) through interstate travel and

transactions that “occurred primarily outside of Minnesota.” The taxpayers thus argued

that Minnesota’s tax on their income “burdens their ability to continue as major

participants in a competitive interstate market.” Id. at 741. The Court rejected this

argument because finding the taxpayers were Minnesota residents, and thus subject to

Minnesota’s income tax, resulted in no “more than an incidental impact on their cost of

doing business in interstate commerce.” Id.; see also 740-41 (noting Commerce Clause

requires a “substantial impact on an identifiable interstate economic activity or market,”

6 Id.

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and incidental impact will not satisfy taxpayers’ burden to show unconstitutionality

beyond a reasonable doubt).

Luther and Stelzner dispose of Appellant’s argument that the Commerce Clause

is implicated here. The trial record establishes conclusively that Appellant alone

decided how he would arrange his travel–when he would return to Florida and when he

would continue his previous pattern of leaving from and returning to Minnesota. Any

difficulty that Appellant perceives in his ability to “free [himself] of Minnesota’s taxing

jurisdiction,” is wholly of his own making. Appellant’s personal travel decisions and

preferences do not implicate the Commerce Clause. Had Appellant intended to act upon

his claimed Florida domicile, presumably he would have traveled to Florida on any one

of the many days he had off between game assignments. Instead, Appellant exercised

the flexibility permitted to him by the NBA and returned to Minnesota even in the months

when he declared he “enjoyed” Florida, for example, January, February, and April-July.

Further, the Commissioner’s residency rules do not discriminate against

interstate commerce. See Mayo Collaborative Services, Inc. v. Commissioner of

Revenue, 698 N.W.2d 408, 411 n.2 (Minn. 2005) (listing 4-part test for Commerce

Clause challenge, with discrimination as third factor to consider) cert. denied, 546 U.S.

1171 (2006). Appellant controls the extent to which his travel is impacted by

Minnesota’s residency rules. Although Appellant informed the NBA that Fort Myers was

his home airport, the effect of that notice was to change the calculation of his

reimbursable travel expenses. His airport notice had no effect on his travel patterns

other than introducing additional trips to Florida on the few days when Appellant did not

choose to return to Minnesota. For example, Appellant’s travel pattern is similar from

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January through July 2003, when Appellant was domiciled in Minnesota, to January

through July 2004, when Appellant claims to be domiciled in Florida.

The Commerce Clause is not intended to protect “state residents from their own

state taxes,” particularly when the taxpayer has the ability to effect a change in how the

state tax rules are applied. See Goldberg v. Sweet, 488 U.S. 252 (1989); see also,

Hillstrom v. Commissioner of Revenue, 270 N.W.2d 265, 269 (Minn. 1978) (rejecting

Commerce Clause challenge and noting, “what is involved here is not a tax on the right

to travel, but a tax on income realized while traveling.”). Thus, we find that

Commissioner’s application of Factor W of the Residency Rule does not violate the

Commerce Clause of the United States Constitution

Second, Appellant claims that the Commissioner’s application of Factor W of the

Residency Rule violates the Equal Protection provisions of the United States and

Minnesota Constitutions. Specifically, Appellant challenges the Commissioner’s

application of the residency rules to him, arguing that those rules distinguish between

his work travel outside of Florida in the winter, and “other similarly situated persons who

need not travel outside of Florida during the winter.” This claimed distinction, Appellant

argues, makes it more difficult for him to establish a domicile in another state. The

Commissioner’s residency rules create no impermissible classification, thus Appellant’s

Equal Protection claim fails as a matter of law.

Appellant has offered a comparison with a hypothetical taxpayer, and intends to

rely on the Tschida Affidavit as a non-hypothetical example. Mr. Tschida, an umpire for

Major League Baseball, travels extensively for game assignments, but the comparison

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to Appellant’s work-related travel is inapt. For example, Mr. Tschida’s work travel can

extend over almost twelve months, e.g., from late January through mid-November. Mr.

Tschida’s travel is also governed by an agreement between his union and Major League

Baseball MLB. Mr. Tschida “rarely, if ever” has two or three days off between game

assignments (as does Appellant). In short, there is simply no reasonable way to

compare any alleged discrimination between Appellant, who arranges his travel to suit

his personal preferences, and Mr. Tschida, whose travel extends over a longer period of

time and who does not have the apparent flexibility in travel that Appellant enjoys. See

Dandridge v. Williams, 397 U.S. 471 (1970) (rejecting constitutional challenge to

maximum dollar limit on state benefits and noting “a State does not violate Equal

Protection Clause merely because the classifications made by its laws are imperfect;”

so long as there is some ‘reasonable basis,’ there is no discrimination “simply because

the classification ‘is not made with mathematical nicety or because in practice it results

in some inequality.’”).

Even assuming there was a valid comparison to use; Appellant’s claimed right to

travel is not impacted. The presumed constitutionality is overcome only when

“absolutely necessary” and only if Appellant demonstrates beyond a reasonable doubt

that an impermissible classification is made. State v. Benniefield, 678 N.W.2d 42, 48

(Minn. 2004).

Appellant argues that an intermediate level of scrutiny should govern his Equal

Protection claim. The cases on which he relies for that level of scrutiny do not apply to

the tax rules used to determine residency. For example, in Davis v. Davis, the

Minnesota Supreme Court recognized that “not every penalty in interstate travel triggers

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the compelling-state-interest test.” 210 N.W.2d 221, 225 (Minn. 1973). In Davis, at

issue was a durational residency requirement that affected a party’s right to file a

dissolution action in Minnesota. When the party challenged that requirement, the Court

compared its effect on the right to travel, to residency restrictions involved in challenges

to receipt of state aid or welfare benefits. The Court concluded the rights affected by

residency requirement for welfare benefits versus a residency requirement for access to

state courts, are significantly different: the welfare benefits cases “involved the

individual’s subsistence and survival,” while the latter did not affect “the ultimate right to

file for divorce.” Id. at 225. Thus, the Davis court applied a rational basis standard of

review, and upheld the constitutionality of the challenged residency requirement. Id. at

226 (holding “statute does not deny equal protection if it is rationally related to a

legitimate governmental objective”).

The same rational basis scrutiny applies here. Appellant’s ability to establish that

he changed his domicile was not affected by the Commissioner’s consideration of his

time in Minnesota versus Florida. This is because Appellant controlled his travel. His

work-related travel is mandatory only in the sense of his obligation to show up for work–

that is, his contractual obligation to be present at the game site at the assigned time.

Under his 2003-04 contract with the NBA, there was no express deadline by which he

had to present for a game; under the 2004-05 contract (covering September-December

2004 of the Tax Years), he had to arrive in the game city slightly less than 24 hours

before the game. Outside of a game day obligation, Appellant’s ability to be in

Minnesota, or in Florida, is constrained only by his personal preferences.

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Further, under either a rational basis test or an intermediate test, there is no

impairment of Appellant’s right to travel. This case is not, as Appellant argues, the

“mirror image” of cases involving challenges to residency requirements for state

benefits. At “stake, in [those] case[s] are payments for the basic necessities of life,” for

which “half a year is a long time to wait.” Mitchell v. Steffen, 504 N.W.2d 198, 202

(Minn. 1993). Appellant is not faced with foregoing the basic necessities of life, he

simply objects to any interference, even from state taxing authorities, with his decisions

on how he will arrange his travel. As he stated, he does not “want to be limited by what

[the NBA’s] travel arrangements” are for him, so he makes his own travel arrangements,

which “gives him the flexibility to fly when” he wants as long as he is present for game

assignments. Thus, we find that the Commissioner’s application of Factor W of the

Residency Rule does not violate the Equal Protection provisions of the United States

and Minnesota Constitutions.

Conclusion

For all of the foregoing, we affirm the Commissioner’s Order dated March 31,

2009.

G. W. P.

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