The hunt for home: every military family’s battle with state domicile law.
IV. A MILITARY FAMILY NIGHTMARE: BEWARE IN VIRGINIA, MINNESOTA, AND
Imagine a servicemember receives orders to a new duty location and
begins to settle in and get her family situated. There is no present
expectation to stay in this particular place and would probably have
never lived here if the military had not sent her. Then, on one normal
day she is served a summons. The state in which she lives filed a
lawsuit against her for not paying state income tax. She checks her
Leave and Earning Statement and her home of record (a different state
than the one she lives in) is correct. Finance confirms her home of
record on file and refers her to the base legal office. The fledgling
young attorney, who is new to practicing law and to the military, tells
her it is beyond the scope of his competence or the scope of military
legal assistance to advise her, other than to say she really has to
respond to the summons with an answer by a certain date. She leaves the
legal office knowing what was plainly stated on the front of the
summons, to respond by a certain date, and with the recommendation to
retain civilian counsel. More can be done and should be done for
servicemembers in this situation.
This scenario is not a concern in states that do not tax income or
that exempt military pay from income tax. (216) Included in this section
are the cases of a few military families that have encountered some form
of litigation from a state attempting to tax income. These cases
illustrate that any servicemember or spouse could find themselves
involved in this issue. The details of a person’s life then come
into focus for an objective determination of where a person intends to
A. The MSRRA Slide into Tax Litigation: The Virginia Example
There are many cases where states have sued servicemembers and
spouses on the issue of domicile in order to enforce a state income tax.
At the close of 2012, the Department of Taxation for the Commonwealth of
Virginia decided at least eighteen income tax decisions involving the
SCRA. (217) Three of these decisions, on appeal, were decided favorable
to a spouse claiming MSRRA protection, (218) ten were decided against a
servicemember or spouse claiming SCRA or MSRRA protections, (219) and
five addressed other aspects of SCRA based claims. (220)
An example of a routine case that legal assistance offices may
experience involves a spouse claiming MSRRA exemption but not including
sufficient information in the tax filing. (221) The spouse and member
were both domiciled in “State A.” (222) When first reviewed,
the spouse’s claim for exemption under the MSRRA for the 2009 tax
year was denied because there was insufficient evidence that both the
member and spouse shared the same domicile in State A. (223) Virginia
interpreted the MSRRA to require both spouses to have the same domicile
and issued Tax Bulletin VTB 10-1 (1/29/2010) stating as much. (224) The
spouse appealed the assessment and provided sufficient information that
both the member and spouse shared the domicile of State A. (225) The
assessment was then abated. (226)
Important to note is the analysis employed by the Virginia
Department of Taxation. Critical overt acts that demonstrated a
person’s intent to establish domicile included these: “filing
a State of Legal Residence Certificate (Department of Defense Form
2058), obtaining a driver’s license, registering to vote and voting
in local elections, registering an automobile, and exercising other
benefits or obligations of a particular state.” (227) The
referenced Form 2058 is entitled “State of Legal Residence
Certificate.” (228) The authority for this form is the Tax Reform
Act of 1976. (229) The purpose of the form is so the federal government
withholds the correct state income tax for a member based upon the
member’s domicile. (230)
It is noteworthy that the spouse filing for the MSRRA exemption and
resulting refund triggered the analysis of the servicemember’s
status. (231) States like Virginia have amended the income tax
withholding form so that employers will not withhold tax and the exempt
military spouse will not have to file for a refund citing the MSRRA
exemption. (232) Here, the decision was favorable to the military family
because there was sufficient information connecting them to State A. It
is reasonable to expect that a spouse who elects MSRRA protection on the
tax withholding form will trigger review of the servicemember’s
domicile. This case and others demonstrate the need for spouses who
claim MSRRA protection need to sufficiently document that claim. As the
next case from Virginia will demonstrate, the path to filing a MSRRA
exemption is fraught with danger and can lead to unexpected tax
In Virginia Department of Taxation decision PD 10-237, a case
decided just two weeks after PD 10-220, the litigation was again
initiated by a spouse filing for refund under the MSRRA exemption, but
the opposite conclusion was reached. (233) Here, the servicemember was
stationed in Virginia for approximately a decade. (234) The member
registered to vote in Virginia, obtained a Virginia driver’s
license, and registered a vehicle there. (235) The member never declared
Virginia domicile on the State of Legal Residence Certificate
(Department of Defense Form 2058), so Virginia taxes were not withheld
from the military pay for any tax year. (236) In 2009, the member was
temporarily assigned to State B and filed a Form 2058 to change the
State of Legal Residence for taxes from State A to State B. (237) All of
this becomes relevant because the spouse filed a routine Virginia tax
return claiming MSRRA exemption in 2010 for the 2009 tax year. (238)
Virginia denied the spouse’s MSRRA exemption claim initially
based on the fact that the servicemember changed his domicile to State B
in 2009, resulting in the couple not having the same domicile. (239)
Instead of leaving the issue as is and paying the assessed taxes on the
spouse’s income, the spouse appealed the assessment decision. (240)
On appeal, the spouse contended that both spouses’ domicile was in
State A during 2009, and that the servicemember spouse only changed
domicile to obtain a hunting permit in State B during the temporary duty
assignment there. (241) The Virginia Department of Taxation first
analyzed the overt acts that demonstrated the servicemember’s
intent to establish domicile. (242) Of great significance to the
military family in this case, the Department found that the
member’s domicile was Virginia and the spouse’s domicile was
in State A. (243)
The Department concluded that the spouse was not entitled to the
MSRRA exemption in Virginia because the spouse and member did not share
the same domicile. (244) In addition, the Department mandated that the
servicemember “must file Virginia income tax returns for the 2005
through 2009 taxable years. The returns, along with the payment of any
tax due, should be submitted to: Virginia Department of Taxation, Office
of Tax Policy, Appeals and Rulings….” (245)
The impact of this case on military families is profound. A spouse
filed for MSRRA exemption and the end result was assessing both the
spouse for income tax and also the servicemember for multiple years of
past due taxes. Invoking the MSRRA protections for spouses should be
done cautiously and with the assistance of legal counsel competent to
advise in this area of the law. The need for legal counsel on this issue
is even more critical in certain states. Virginia has demonstrated it
takes a close look at claims for MSRRA exemption and will also examine
the servicemember’s life in search for an opportunity to impose
previous year tax assessments. Other states have challenged
servicemember domicile for the purpose of income tax assessment both
before and after the MSRRA was enacted, including Minnesota and Oregon.
The Minnesota litigation provides a good example of what other courts
have used as a foundational analysis, so it will be discussed next.
B. Other State Challenges to Servicemember Domicile: Minnesota and
The most notable challenge to servicemembers’ domicile is when
the Minnesota Department of Revenue attempted to levy income tax upon a
dozen Public Health Service (PHS) officers stationed in Minnesota but
who claimed domicile elsewhere. (246) These officers, like active duty
servicemembers, benefit from SCRA protections. (247) There were two
aspects of the Minnesota tax rule at issue: Rule 8001.0300, subpart 2,
establishing a presumption that the domicile of one spouse is the same
for the other, and Rule 8001.0300, subpart 3, a list of “A-Z”
factors used to determine a person’s domicile. (248) The Minnesota
District Court had little trouble concluding that the provisions in the
SSCRA preempted the marital domicile presumption from applying to the
officers despite two previous rulings by the Minnesota Tax Court,
predictably, holding that there was no such conflict. (249) The second
Rule presented an issue of first impression in the federal courts.
Minnesota Rule 8001.0300, subpart 3 are the “A-Z factors.”
(250) The factors are these:
Subp. 3. Considerations. The following items listed will be
considered in determining whether or not a person is domiciled in this
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
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;
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
O. whether an income tax return has been filed as a resident or
P. whether the person has fulfilled the tax obligations required of
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
T. location of business relationships and the place where business
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.
Any one of the items listed above will not, by itself, determine
Charitable contributions made by a person will not be considered in
determining whether that person is domiciled in Minnesota. (251)
The District Court, acknowledged that relocating under the
compulsion of military orders and living in base quarters cannot change
a person’s domicile, that a member could only live in such quarters
during the period of orders, but a person could always take other steps
to change domicile. (252)
This understanding assumes availability of either military or
privatized housing on a military installation, which for many
installations is unavailable for assigned members, and seems to be an
outdated view. Even if base housing was available, many members and
their families may not desire to be surrounded by the military way of
life every waking moment, preferring instead to settle into a normal
community and have as close to a normal life as possible during a tour
of duty. There are national benefits to active duty families settling,
to the extent possible, in predominantly civilian neighborhoods. (253)
The District Court concluded that the clear purpose of the Act was
this: “the SSCRA protects servicepeople from ‘double
taxation’ by both their home state and the state in which they
serve the United States.” (254) The opinion then discusses how
federal courts have struck down the imposition of a city
revenue-generating fee on motor vehicles operated on the streets (255)
and a school board-imposed tuition on children whose parents were not
domiciled in North Carolina. (256) Faced with a void of federal
authority on point with the legal standoff between the United States and
Minnesota, the District Court distilled a few principles to guide its
First, and most obvious, no state can force a serviceperson to pay
a revenue-building tax unless he is deemed to be a resident or
domiciliary thereof. [Citing California v. Buzard, 382 U.S. 386, 393
(1966)]. Correlatively, an attempt to tax must bear a close relationship
to a serviceperson’s activities within the state. [Citing Sullivan
v. United States, 395 U.S. 169, 175 (1969)]. Any revenue-raising tax may
be imposed only if a serviceperson’s domicile, as protected by the
SSCRA, is in the taxing state as well. From these principles it can be
deduced that any state law or regulation which leads to a serious risk
that, on the basis of domicile, a serviceperson will be forced to pay
income tax to a state in which he bears no substantial connection
violates the SSCRA. Furthermore, the SSCRA likely preempts any state law
or regulation that leads to a serious risk that a serviceperson would be
subject to double taxation, by both his state of claimed domicile and
the state in which he is posted, regardless of whether the state of
claimed domicile actually does impose such a tax. [Citing Dameron v.
Brodhead, 345 U.S. 322, 326 (1953)]. (257)
In addition to the federal guidance, Minnesota law imposed an
income tax on individuals domiciled in that state and also on “any
individual domiciled outside the state who maintains a place of abode in
the state and spends in the aggregate more than one-half of the tax year
in Minnesota, unless the individual or the spouse of the individual is
in the armed forces of the United States….” (258) This left the
substantive question to be answered of whether officers were domiciled
The District Court concluded that Minnesota’s domicile
analysis did not significantly differ from traditional domicile
analysis. (259) As noted, federal law easily preempted Minnesota’s
marital presumption that the domicile of one spouse was determinative of
the other spouse’s domicile. (260) However, in that discussion, the
District Court based its decision on the reasoning that it
“violates both the clear line of case law handed down under the
SSCRA as well as substantial public policy concerns.” (261) The
opinion then cites Supreme Court precedent to support this statement:
“As the cases discussed above indicate, the SSCRA allows the
imposition of a tax only when there is a direct nexus between the tax
and a serviceperson’s activities within the state of his
posting.” (262) However, a reader of Sullivan or the SSCRA line of
cases would be hard pressed to support the contention that a
“direct nexus” allows a state to impose “a tax” on a
servicemember. It is clear from Sullivan that whether or not a nexus
exists, states can still impose some form of tax, such as sales tax on
servicemembers; the only nexus being a purchase in a particular
location. Of concern is that Minnesota seems to create the notion that
nexus overcomes federal preemption.
The litigation between the PHS officers and Minnesota highlighted
certain factors, which included:
3(F): The location of a newly-acquired home, whether owned or
3(J): The state which issued a person’s driver’s license;
3(M): The state in which a person’s car is registered, as well
as the physical location of the automobile; and
3(U): The location of organizations and clubs to which a person
The District Court distinguished the factors analysis from the
marital presumption because, “the factors … are merely that-
factors, incidents the state may examine to assist in a determination of
domicile.” (264) On the other hand, the District Court explained
that a presumption “is obviously strong medicine and carries a much
greater risk of frustrating the purposes of the SSCRA than one of
twenty-six indicia of domicile.” (265) The District Court was
satisfied that the “concerns here of any one factor at issue here
upsetting the system established by the SSCRA are thus much weaker than
the problems presented by the marital presumption.” (266)
Curiously, part of the District Court’s analysis was that the
United States Department of Health and Human Services advised members to
be careful not to take actions that could be viewed as intent to change
domicile, thus indicating the scope of the SSCRA protections. (267) In
addition, the protections under the Act are individual rights for
servicemembers and some for spouses. How can a department’s
pamphlet negatively impact an individual right or play a significant
role in determining the purpose of a statute?
The District Court took special interest in the word
“solely,” defining that term to mean “exclusively”
and that it “directs the Court to look to only the single factor
identified.” (268) However, the cases relied upon by the District
Court concerned the use of “solely” in the Revenue Act of 1934
and the Employee Retirement Income Security Act. (269) The cited cases
may provide insight into Congress’s use of “solely” in
statutory language but do not speak to the purpose of the SCRA, which
exists to assist servicemembers compelled to move under military orders.
The District Court took the word “solely” to apply only to one
of a set of factors used by states to determine domicile. (270) However,
the plain meaning of the word “solely” as used in the SCRA
could easily be read to cover activity inherent to residing in a
The District Court concluded that a plain reading of the SSCRA
would allow a state to impose taxation (declare a servicemember
domiciled in the host state instead of the home state) “as long as
other factors exist, in addition to physical presence in the state,
which leads to the conclusion that a serviceperson has affirmatively
chosen the state of posting as his home.” (271) The reasoning to
support this conclusion is that if such factors could not be looked to,
then the Act “would render every state incapable of ever taxing the
incomes of a serviceperson without the serviceperson’s consent.
Such a result would be inherently unfair.” (272)
The reasoning and conclusion of the District Court are confusing.
There is no basis to conclude that the SSCRA would ever render every
state incapable of ever taxing the incomes of members without their
consent. Just the opposite is true. Servicemembers are protected from
such actions by host states because it is the home state that reserves
the right to tax members. (273) Further, if servicemembers choose a
particular state and establish domicile prior to being ordered to
another state, then their purpose for doing so is irrelevant, even if it
is that they appreciate and can benefit from the taxation philosophy of
the home state. (274) That does not change the fact that the home state
always reserves the right to impose revenue generating taxation on
members living elsewhere. The statement in the opinion that the Act
would make states incapable of ever imposing an income tax is baseless
and derails the analysis.
The District Court provided a caveat to its holding that federal
law did not categorically preempt the factors discussed, but that
“applying these factors in a manner which does not truly pay heed
to a particular serviceperson’s intention to remain in Minnesota
following the conclusion of his service could easily render the factors
preempted as applied.” (275) In the end, the conclusion of the
District Court is narrow. The Order held that the marital presumption
was preempted by the domicile provision of the SSCRA but that Section
“does not preempt the use of the factors listed in Minn. Rule
8001.0300 subpart 3(J), (M), (F), and (U) to determine the domicile of
PHS officers.” (276)
The position advocated below in this article arrives at a different
conclusion than the District Court arrived at in Minnesota. State tax
authorities have relied on Minnesota in pursuing servicemembers for
income tax even though the result is at odds with the SCRA modification
to traditional domicile analysis. (277) As the following case
demonstrates, the reasoning in Minnesota has left servicemembers more
vulnerable to state attacks on domicile.
Oregon has not hesitated to initiate litigation against
servicemembers for income tax assessments. A recent case demonstrates
how a servicemember with Oregon connections cannot simply file a
Department of Defense Form 2058, maintain a driver’s license and
vote in another state. (278) Oregon may require much more.
In March 2011, after a trial on the matter, Oregon concluded that a
Public Health Service dentist was required to file a return for tax
years 2004, 2005, and 2006. (279) One may be taken aback by some of the
factors the Court discussed, including where the servicemembers spouse
chose to give birth to their two daughters in 1988 and 1990,
respectively. (280) The fact that this couple chose to have their
daughters delivered in Oregon, even though they lived in Washington, was
worthy enough to discuss, albeit because the member’s spouse
“had an established relationship with an obstetrics/gynecologist in
Oregon and preferred to continue with that physician, in part because
there had been complications with her first pregnancy.” (281) It
seems a bit much to delve into such private details of a person’s
life in a discussion on tax liability over a decade later. Nonetheless,
there were other relevant factors that led to the Court’s
The key facts that were weighed include the following: The
servicemember “retained his Washington driver license and voter
registration until he retired in 2006.” (282) However, the Court
deemed these overt acts as a guise to maintain enough connections to
Washington to overcome Oregon domicile. (283) The Court reached this
conclusion because the servicemember had other connections to Oregon.
(284) The critical connections to Oregon included that the member owned
one lot of land in Oregon, held an Oregon dental license, in addition to
military duties he worked part-time at an Oregon dental office, his
mother moved to Oregon from another state, he had a brother living in
Oregon a short distance from his residence, both the member and his
spouse held bank accounts in Oregon, and registered vehicles in Oregon.
(285) Weighing the connections to Oregon versus Washington, the Court
held that this servicemember was domiciled in Oregon. (286) The Court
upheld the deficiency assessments for tax years 2004 through 2006. (287)
Palandech is not the only case demonstrating Oregon’s
commitment to pursue servicemembers. The case involving (now retired)
Senior Chief Petty Officer Martin Cart and his spouse Hollie into Oregon
Tax Court provides a clear example of how the factors analysis, as
reviewed by the District Court in Minnesota, actually bring about the
exact opposite result of what the domicile provisions in the Act are
intended to prevent. (288)
The Carrs, pro se, challenged Oregon’s assessment of personal
income taxes against them for 2001, 2002, and 2003. (289) The Magistrate
viewed the issue as whether the Carts had a “sufficient nexus to
the State of Oregon, despite Senior Chief Carrs status in this state as
a serviceperson under active duty, to make them responsible for paying
personal income taxes on their income.” (290)
These are the uncontested facts: Senior Chief Can. served on active
duty in the Navy since January 23, 1980. (291) His home of record was
Nevada, a residence of his parents, and he never changed that home of
record. (292) The first time the Navy ordered Carr to Oregon, and the
first time Carr lived in Oregon, was in 1993. (293) Can. completed a
routine three year tour and was ordered to California in early 1996.
(204) While in California, Can. filed for bankruptcy, listing California
as his domicile. (295) Can had placed Oregon as a preference on where he
would not mind being stationed next. (296) In 1999, after another
three-year tour had elapsed, the Navy again ordered Can to Oregon. (297)
While in Oregon for the second time, Carr’s family dependents
accompanied him and he purchased a home. (298) Can was not stationed at
a military installation so there was no military housing available to
him or his family. (299) He registered vehicles in Oregon. (300) Can.
did not register to vote in Oregon, did not obtain an Oregon
driver’s license, and declared he had no intention of remaining in
Oregon once his tour of duty expired. (301)
The Carrs lived at nine different addresses between 1992 and 2001.
(302) They had extended family still living in Nevada, but no connection
to a particular address or any real estate in Nevada. (303) The
Magistrate then turned to the question of whether, as the Carrs claimed,
the SSCRA or SCRA domicile provisions protected their declaration that
Oregon was not their domicile. (304)
After briefly mentioning the domicile protection available to
servicemembers, the Magistrate zeroed in on the District Court’s
decision in Minnesota. (305) In particular, the Magistrate cited only to
the reasoning in Minnesota of what the word “solely” meant and
the conclusion that a state may impose taxes upon a servicemember
“as long as other factors exist, in addition to physical presence
in the state, which leads to the conclusion that a serviceperson has
affirmatively chosen the state of posting as home.” (306)
Despite the Carrs’ unequivocal and repeated declarations that
they had no intent to remain in Oregon and had never made Oregon their
domicile, the Magistrate was “nonetheless of the opinion they,
albeit perhaps unknowingly, have made Oregon their domicile.” (307)
Apparently, in Oregon, the test for domicile is not the historical
presence coupled with intent to abandon the former and present intent to
remain in the new, it is “overt acts, no one of which, including a
statement of intent, is determinative.” (308) The Oregon test
includes an examination of overt acts, and even though such connections
to the state are “tenuous,” so long as it is the strongest of
associations, Oregon will impose an income tax on a nonresident
servicemember and spouse. (309)
The Magistrate went on to conclude that the Carts “plainly
cannot support Nevada as their domicile” due to their current lack
of connections with that state. (310) Apparently, in order for a
servicemember or spouse to maintain domicile in their host state, they
would need to own property, maintain driver’s license, vote,
register vehicles, and speak convincingly (to whom is not clear) of
returning to the home state. If the Carrs had done these things, it
would still not be conclusive, but “their case would be
stronger.” (311) The Magistrate concluded that the Carrs needed to
pay the Oregon income tax assessment for the previous three years, a
decision which the Magistrate acknowledged had dramatic financial
consequences to the GaITs. (312) But, this is not the end of the
The now-civilian “MAW” and Hollie Carr were gracious in
being interviewed for this article. (313) The case Oregon mounted
against them goes down as one of the most traumatic experiences of their
lives, even when compared with twenty-six years of active duty service
in the United States Navy. (314) The Navy stationed Cart in Portland,
Oregon as a recruiter in 1999. (315) He still maintains that neither he
nor Hollie intended to remain in Oregon past the time of his ordered
presence. (316) The decision of the Tax Court was filed in November
2005. (317) Carr retired from the Navy in January 2006. (318) He and
Hollie moved to Georgia from Oregon in that same month, just as he had
asserted to the Oregon tax authorities. (319) One of the main issues
impacting their decision to settle down upon retiring from the Navy was
future employment opportunity. (320) Upon inquiry he confirmed that if a
good position was available in Oregon (or another state for that matter)
he would have strongly considered taking it, but he certainly had no
present intent to remain in Oregon at any time he lived there. (321)
Carr recalled a tax official mentioning that Carr’s name was
in the phone book and he owned a house, so the initial inquiry began
into taxing him. (322) Upon inquiry as to why he did not obtain legal
assistance from a military attorney, he explained that there was no
nearby installation. (323) His command was aware of the litigation
against him and was deeply concerned. (324) The closest legal assistance
office for Carr was in Washington. (325) That office informed him that
no attorney could represent him in the litigation and that even if they
could, no attorney in that office was licensed to practice in Oregon.
The Carrs did consult with an attorney in Oregon but were
reasonably informed that due to the lack of precedent on the issue there
was no predictability of how the litigation would end and truly no end
in sight if they chose to retain counsel and fully litigate the issue.
(327) Rather than face criminal sanction, the Carrs ended up paying
Oregon the multiple-year income tax assessment. (328)
The Carrs had the option to retain civilian counsel, but that is
costly. The military legal assistance program was unable to assist the
Carrs in their dilemma. Legal assistance does not seem to be designed or
staffed to represent servicemembers in cases like this. But, there is
still much that can be done to assist families like the Carrs.
These decisions from Virginia, Minnesota, and Oregon validate the
concern that state courts may tend to interpret the federal questions
raised by the SCRA favorable to the state. To further the point, there
is a history of federal courts repeatedly deciding the issue of
preemption at odds with state decisions, (329) and then other state
court decisions give only cursory treatment to SCRA implications when
deciding against a servicemember. (330) This is not to say that all
states have reached results at odds with federal law. (331) Much can be
done to educate servicemembers, their spouses, and state tax authorities
on how the SCRA and MSRRA alter domicile analysis. Even with the limited
capabilities of a military legal assistance program, there exists some
obligation to educate military families of the litigation risk they can
encounter. There are many tools available to meet this obligation, but
it starts with a solid understanding and position on domicile analysis
under the SCRA and MSRRA.
V. PROTECTING SERVICEMEMBERS’ HUNT FOR HOME
The military journey can be the best experience of a person’s
life. The missions, travels, and relationships that come with military
life demand continual attention by servicemembers and spouses. It is
common experience in military communities to always be asking and
answering the question of where a person claims as home, or where they
are from. Servicemembers and military families frequently move
locations, inherently making contacts to each state in which they live.
For those who chose the military as a career, there may be very little
thought of what the future may hold. Anticipating or dreading the next
duty location is sufficient excitement or worry for the day. For
deployed troops, returning to any part of the United States is
sufficient to say they are home. The unique nature of military life is
in direct conflict with traditional domicile analysis because
servicemembers will make their home wherever they are told to reside and
for as long as they are told to remain in a particular location. This is
why the domicile protections in the SCRA and MSRRA exist.
The SCRA and MSRRA should preempt the current domicile analysis
employed by many state tax agencies and courts. A nexus or contacts
based analysis like the A-Z factors Minnesota uses is fine, but it
directly conflicts with the protections in the SCRA and MSRRA.
Servicemembers and spouses engage in certain activity that is inherent
to living in a state pursuant to military orders. These activities
should not be held against servicemembers and spouses because it is
inherent activity to living in any location. The SCRA and MSRAA should
be read to preempt any factor that has to do with a person being
“absent” from a home state and “present” in a host
state. Those terms are central to the congressionally altered domicile
A. The Meaning of “Absent” and “Present”
The two words that must be properly defined in order for the SCRA
and MSRRA to actually provide relief to members and spouses are
“absent” and “present.” Defining these words is the
key to determining whether or not Congress, through the Acts, actually
modified domicile analysis at all. Many gaping holes exist in some of
the reasoning and conclusions of judicial opinions interpreting the
domicile provision in the SCRA. The central point that is missing from
domicile analysis under the SCRA is that being “absent” from
the home state of domicile and “present” in a host state
involves more than just one factor.
If a member and spouse are absent from a home state because they
are complying with the member’s orders, then they would not
continue to maintain factors in the home state for items such as a
personal residence, receiving mail, library cards, club memberships,
school enrollment, and a host of other activities. They would naturally
and reasonably make those associations in the state wherever they
presently reside. This is not because they wish to abandon the old and
chose a new domicile; they are simply conducting activities that are
inherent to living in any location. States also cannot count against a
member or spouse factors that are inherently impractical by virtue of
being absent from a home state.
Based on the reasoning in Minnesota and state tax courts, any
servicemember or spouse present in a host state would satisfy a number
of factors simply by existing in that location, leaving them open to
litigation on the issue of their domicile. While the SCRA and MSRRA
protections do not prevent a voluntary change in domicile, it does
protect servicemembers and spouses from a host state attack based upon
factors that are inherent to civilized existence. Domicile for members
and spouses should not be subject to challenge if at any time
connections to a host state tip in favor of that state where the member
only had the minimum contacts necessary to live in such a way that would
free the member up to perform the duties of the military position held.
Bringing the academic to the practical: drive through a housing
area on any given military installation. Many houses will have two
vehicles in the driveway, the member’s and the spouse’s, but
often will have two different state vehicle registration tags. Is this
because the spouses intend to have different domiciles? The answer is
clearly of course not. It is simply a matter of how to comply with the
registration requirements in the simplest, most expedient manner.
Domicile analysis that considers inherent activity is hostile towards
military families and improperly considers absence from a home state and
presence in a host state. Walking through each A-Z factor demonstrates
that many activities are inherent to being present in a host state,
rendering them preempted.
B. Applying Preemption to State Domicile Factors
It is helpful to note that not all States insist on pushing the
legal limits by hauling servicemembers into court to challenge their
domicile. States, such as Missouri, have a reasonable and helpful
approach to determining a servicemember’s domicile. In Missouri,
the “military personnel’s domicile is presumed to be his or
her home of record.” (332) Home of record is defined as the
“state of residency listed with the military in the
individual’s personnel file.” (333) A member’s personnel
file for state of residency is determined based on the member’s
declaration on the From 2058. (334) This presumption makes the law
helpful to military families, unlike the time consuming process and
wrangling required with states like Virginia, Minnesota, and Oregon
using a factors based analysis to the disadvantage of servicemembers and
By using an A-Z factor analysis to determine domicile,
servicemembers and spouses are not treated any differently than any
other person, but the SCRA and MSRRA domicile provisions exist so that
they should be treated differently. The language in the Act mandates
that an A-Z factors approach is legally insufficient because there are
activities inherent to living in a particular location. Those factors
cannot be held against or even considered in determining the domicile of
a servicemember or spouse. For ease of reference, this table lists the
A-Z factors and highlights the factors that should not be included in
SCRA and MSRRA domicile analysis.
The factors in bold indicate the activity is inherent to living in
a particular location, triggering SCRA protection from a host state
holding the activity against the member. The factors in italics indicate
that the activity is not always inherent to being present in a
particular location but could justify preemption as applied. The factors
in plain text indicate the Act would not preempt those activities
because they are not inherent to presence in a particular place.
A. location of This factor could possibly involve the domicile for prior prohibition in the SCRA that a member's and years; spouse's absence from a home state cannot result in the loss of domicile for tax purposes. The location of domicile for prior years should be presumed to remain intact unless express declarations are made to change domicile. Even so, the factor is still not one inherent to living in a particular location and is properly considered. B. where the This will likely match the location at the person votes or is home of record and declaration on the DD 2058 registered to vote, unless for convenience sake a member or but casting an spouse registers in the local jurisdiction, illegal vote does not changing their registration each time they establish domicile move. for income tax purposes; C. status as a Many members and spouses are enrolled in student; classes in the local community, especially because base education offices facilitate on-base college classes. Unless taking classes in a virtual setting, members and spouses stationed at a particular location are going to take classes where they temporarily live, where it is most convenient to obtain education. Perhaps this factor was meant to only single out fulltime college students, who would likely be temporarily residing in a state for the duration of college. If that is the case, it should be noted that many military assignments are less than the time it takes a student to complete undergraduate studies. D. classification This factor, if it means employment in the of employment particular location, would certainly weigh in as temporary or favor of servicemembers and spouses living in permanent; a particular place only so long as the servicemember is ordered to be there. Even so, the only way this factor could be relevant to determine a servicemember's domicile is if there was some declaration that the member intended to both depart military service and permanently remain in the present location. E. location of All military service is at the discretion of employment; the respective Department concerned. There is no guarantee a member will even be retained to serve until retirement eligible. Also, all active duty service subjects a member to transient residence in a variety of locations. A servicemember does not get to choose where the respective service will order the location. The nature of military service is at odds with this factor because servicemembers simply do not know how long their service will last in a location and where the military will order them next. F. location of Aside from national economic policy concerns newly acquired favoring home ownership, this factor has living quarters nothing to do with whether or not a member whether owned or and spouse intend to permanently reside in a rented; host state. This factor is more indicative of a local housing market and risk tolerance than a person's domicile. The considerations that go into purchasing or renting involve many aspects, but changing domicile is seldom even a concern that is factored into the decision. If an adequate house is not available to rent, then a member may be forced to consider purchasing even if that is undesirable. G. present status The inherent nature of military life being of the former transient, and the statutory domicile living quarters, i.e., protection afforded to members and spouses whether it was sold, due to that transience could result in this offered for sale, factor being preempted as applied. A member rented, or available who cannot sell a home is not choosing to for rent to another; maintain the host state connection; it is just an unfortunate situation for the member. H. whether This factor is more indicative of what is homestead status financially advantageous to a transient has been requested servicemember and spouse. If a member or and/or obtained spouse owns multiple properties, then it is for property tax reasonable to look to which one has been purposes on declared the homestead, because then, the newly purchased factor is not a factor that is inherent with living quarters living in a particular place. However, for and whether the members and spouses who own only one home, homestead status wherever their present host residence may be, of the former living they should not be discouraged from or quarters has not penalized by enjoying the homestead exemption been renewed; as other homeowners do. For people like the Carrs, who owned only one residence, why should they be penalized for doing what common financial sense dictates? I. ownership of This factor could be relevant for those who other real property; voluntarily acquired real estate in certain locations, especially if the acquisition was to facilitate settling in a particular place after military service. Nonetheless, the factor is not preempted because it is not inherent to living in a particular location or being absent from a home state. J. jurisdiction This factor is a bit tricky and should be in which a valid dependent upon whether or not a home state driver's license makes provision for a domiciled (but was issued; temporarily absent) servicemember or spouse can renew their license in the home state while maintaining physical presence in another host state in compliance with military orders. For example, many states make provision for a member and sometimes dependents to extend the validity of the license while the member and dependents are living outside of the home state on military orders. (335) If the home state has no such provision then the factor is preempted because the member and spouse would need to comply with the laws of the host state. How could a license be maintained in a home state if there is no home state address to put on the license and no provision made for an exception? K. jurisdiction The factor is not preempted because it is not from which any a factor inherent to presence in a particular professional place or absence from a home state, but it licenses were seems unreasonable. Some professional issued; licenses, such as to practice law, are valid in all jurisdictions if practicing on behalf of the United States. There is no need to go through the rigors of obtaining such licenses from other jurisdictions. L. location of the This factor is facially invalid for person's union servicemembers because they are not members membership; of any union. Perhaps it could be used for a spouse. It is not a factor that is inherent to residing in a particular place so it is not preempted. M. jurisdiction This tax, which every state likely does not from which any impose, is both a property tax and a motor vehicle privilege tax .116 This factor is preempted license was issued because efficient transportation is inherent and the actual to living in a particular location, physical location especially for servicemembers. The act of of the vehicles; registering a motor vehicle requires a physical address be listed. Often, the most efficient method to comply with registration laws is to register the vehicle at the nearest location to the host state residence. This is an act that is inherent with living in a particular location, unless we demand all those stationed far from the home state to potentially need to travel back to the state or expend time and resources to maintain registration in that state. Also, just as with a driver's license, if there is no home state address to associate a vehicle registration and no exemption provision for members then how could a vehicle be registered in the home state? N. whether resident Servicemembers and spouses are required to or nonresident obtain such licenses in the place they fishing or hunting currently reside in order to enjoy these licenses purchased; activities. States could mandate that only those who truly claim domicile there can pay a reduced rate for such a license. This would place servicemembers and spouses at an economic disadvantage for having to pay a nonresident fee. However, the activity is not one that is inherent to living in a particular area. O. whether an This factor is not preempted because it is income tax return discretionary with the tax filer as to the has been filed chosen status. Filing taxes as a resident in as a resident or the home state (if that state taxes income) nonresident; and filing in the host state as a non-resident, is equivalent to a declaration of domicile. P. whether the This factor is not clear. It seems the factor person has fulfilled would be looking to distinguish those who the tax obligations have not paid income tax to a home state, or required of a who have complied with the required filing in resident; Minnesota. On its face, the factor is not one preempted as inherent to living in a particular location. Q. location of any This factor is, perhaps, a bit antiquated in bank accounts, the modern-day system of direct deposits and especially the online banking. Does this factor mean that a location of the majority of members and spouses could have a most active Texas connection if the bank that houses checking account; their checking account is in a place like San Antonio, Texas? Local banking activity, to the extent it still exists today, is more of a convenience factor. All servicemembers are required to maintain a bank account for direct deposit; so not having an account in some location is not an option. In the event a person switches local bank accounts every time new orders are received, the factor is one inherent to presence in a particular location. This factor would always be preempted as applied due to the necessity of direct deposit and a military mandated checking account. R. location of In this modern era of electronic other transactions transactions, what does this factor say about with financial common military financial institutions institutions; providing products such as loans, services, and investments to personnel and their families all over the world? However, the factor could be relevant if a person, for example, had a very close relationship to a lender in a particular location and repeatedly obtained financing for investment properties or the like. Still, the factor has more to do with where a person can obtain more favorable financing or where a trusted financial and investment advisor is located rather than an indication of where a person intends to permanently remain. S. location of the This factor is subject to preemption on two place of worship at fronts. First, the factor directly conflicts which the person is with aspects of a constitutionally protected a member; conduct. For example, some religious practices focus on cohesion with a local group of likeminded individuals. The factor inhibits the free exercise of religion because there are potentially negative governmental consequences attached to participating in such activity. The factor leaves servicemembers and their families with a choice to either tread carefully in exercising their religious freedom or risk an adverse impact by a state tax authority The intent is to fully participate in a constitutionally protected activity, not to express where they intend to permanently reside. T. location This factor most likely does not speak to of business routine transactions such as purchasing a relationships vehicle or the like. Sales tax is paid on and the place such transactions regardless of location or where business is domicile. Where is a person buying or selling transacted; goods, obtaining or rendering services. These business actions are not inherent to where a person lives solely in compliance with military orders. Although, some relationships that could be referred to as business relationships will be wherever a member or spouse are stationed. It is important to be mindful of Mitchell, where the Court concluded that lengthy travels and business transactions did not change Mitchell's domicile. (337) U. location of Such memberships are likely to change based social, fraternal, upon where a person lives. For athletic or athletic organizations, military members, as part of organizations or their conditions of employment, must meet clubs or in a lodge minimum health and fitness standards. All or country club, in members are either going to be frequent which the person is visitors of local gym facilities on a a member; military base or in the local area. Memberships in clubs or other social organizations, such as a golf course, are activities directly related to where a person currently resides. This factor is preempted. V. address where Receiving mail at the current host state mail is received; residence is an action inherent to living in a particular location and is thus preempted. W. percentage Excluding the assumed normal eight hours of time (not worked each weekday, people will typically counting hours spend the remaining sixteen or so hours of employment) (nearly half of which is spent sleeping) in that the person is the local area, in close proximity to the physically present location of their work for the following day. in the host state Even if a person were to return each weekend and the percentage to the home state, the time would never of time (not overcome that spent in the host state. counting hours Servicemembers are also under strict of employment) limitations to stay within the local area or that the person no more than a certain distance from the is physically ordered duty location in the event they are present in each recalled to deploy or some other exigency jurisdiction other arises. This factor is preempted due to the than the host state; inherent nature of military work and the practical matter of not being able to ever spend more time in a home state than the host state. Spending more time in the host state than the home state is inherent to living in a particular location by virtue of military orders. In addition, the absence from the home state is not counted against the member or spouse. X. location of Like factor L above, this factor is facially jurisdiction invalid for servicemembers because they would from which no longer be servicemembers and ordered to unemployment live in a particular location if no longer compensation employed by the federal government. Perhaps benefits are it could be used for a spouse. It is not a received; factor that is inherent to residing in a particular place so it is not preempted. V. location of The non-collegiate schools that dependents schools at which attend are going to be in the place of the person or the residence. For college classes, the temporary person's spouse or time spent at a college or university is not children attend, likely to trigger a change in domicile for and whether the student and so should not count against resident or the parent. In the end, the activity of nonresident tuition attending school in a convenient location was charged; near a host state residence is inherent to living in a particular location. Must a family be held to the impossible task of arranging for daily travel from the host to home state? Of course not. Should a non-resident child attending college in a particular location have anything to do with a parent's domicile? How can it? The child's decision is influenced by a variety of factors including where they even get accepted to attend college. The factor has nothing to do with a parent's domicile. Also, the same concerns expressed in factor C above are relevant here. Z. statements For insurance, members and spouses will made to an likely obtain insurance on only the property insurance they currently possess, which is often the company, present residence, vehicles, and any rider concerning the policies on valuable possessions such as person's residence, jewelry. Insurance on items like a house and and on which the vehicles necessarily need to be in the insurance is based. location of the items, a host state. Insurance is an item that we have become accustomed with to manage risk. We commonly obtain renters or homeowners insurance, state mandated vehicle insurance, personal property rider insurance, professional license insurance, and possibly umbrella liability insurance. This factor is inherent to being present in a particular place solely in compliance with military orders, rendering it preempted. Charitable Last, charitable contributions made by a Contributions. person should be excluded from the analysis if contributions are made as part of practicing one's faith. Even if contributions are not made pursuant to practicing one's faith, public policy should encourage charitable contributions and not hold this against individuals in any way. Still, the same reasons for attending a particular religious organization should apply to this factor as well, preempting it, because contributions will inherently be made to organizations where a person lives.
Not surprisingly, the factors used against some of the Public
Health officers in Minnesota included those which are inherent to living
in any location: F: location of a newly-acquired home, whether owned or
rented; J: The state which issued a person’s driver’s license;
M: state in which a person’s car is registered, as well as the
physical location of the automobile; and U: location of organizations
and clubs to which a person belongs.
Apparent from a substantive discussion of each of the factors is
that many are irrelevant to servicemembers or clearly preempted by the
SCRA due to the activity being inherent to being absent from a home
state and present in a host state. The academic discussion still leaves
military legal assistance practitioners with practical needs, like what
to do when a client walks in with a demand, audit, or summons from a
state challenging the domicile in an effort to tax income.
C. Making the Law Work for Servicemembers and Military Families
There are a variety of ways to protect domicile. The most useful
relief would be to amend 50 U.S.C. App. [section] 571(a). Not altering
the SCRA and MSRRA to clarify the confusion on domicile factors analysis
will be held as a statement against servicemembers and spouses that
Congress is okay with state tax authority action on this topic. (338) A
clarification to the SCRA and MSRRA could be as simple as including this
sentence: “For purposes of this Section, ‘absent or
present’ means the physical presence in or absence from a
particular tax jurisdiction and the activity which is inherent to
residing in a particular tax jurisdiction.” Amending a statute is
possible but may prove time consuming. There are immediate steps that
can be taken to educate and protect the military community.
The most immediate and relevant advice useful to clients is the
need to prevent a challenge to domicile. This can easily be incorporated
into installation newcomer’s briefings, especially for those states
that have engaged in litigation with members and spouses. Military Tax
Centers can highlight MSRRA compliance requirements to spouses seeking
to claim MSRRA exemption from host state taxation. Spouses can then get
their documentation in order and update their W-4 tax withholding form
to prevent a later challenge or quickly respond to a challenge.
Documenting connections maintained to a home state can provide a sound
basis to repel a host state challenge. This will help prevent challenges
to domicile and more easily respond to challenges.
Prevention also involves legal assistance offices having
information readily available on the host state’s laws. This can be
as simple as a preventive law brochure summarizing domicile and how to
prevent challenges. If the client is concerned about this issue, have
them complete a comprehensive questionnaire to identify which States may
have a claim to the client’s domicile. Appendix 1 provides a sample
list of relevant questions.
There are many individual actions a legal assistance practitioner
can take to help a client. Research the law of a client’s home
state to see if there are military specific laws on driver’s
license extensions for active duty and spouses and any other home state
laws that extend substantive protection to members and spouses. Write a
letter on behalf of the client to the home state tax authority
requesting an opinion that the member and spouse are in fact domiciled
in the home state. The authority would, of course, need documentation
supporting the conclusion. Such determinations would provide an
additional hurdle to host state challenges because it would place two
states in direct opposition to each other, potentially resulting in the
host state digressing from a challenge.
If a member or spouse receives a notice of deficiency, audit, or
verification (339) from a host state tax authority, all of their
documentation should be in order. The member’s home of record
documentation, Form 2058, any home state contacts currently maintained
would be helpful to have on hand in support of the member’s
position. Impress upon clients that the most minor details are relevant,
even where their children were born. It could be critical for a legal
assistance attorney to write a state tax authority a letter explaining a
position favorable to the client, including citation to relevant Supreme
Court cases. A sample letter for editing is provided at Appendix 2.
If a member or spouse receives a summons to appear in court,
immediately notify the Chief of Legal Assistance for the member’s
military department, coordinating, of course, through the supervising
military attorney as required. The respective military department can
coordinate a referral package put together by the client and legal
assistance attorney to the United State Department of Justice, Tax
Division. The Division’s Office of Special Litigation handles tax
issues that do not involve the IRS. The Division will then conduct an
internal review of the legal issues involved and determine whether or
not the United States has a sufficient interest in litigating the
matter. If the Division determines that the United States has a
sufficient interest in the litigation, as in Minnesota, it could
initiate a declaratory judgment action against the host state.
Based on the caselaw cited above, highly recommend your client
refrain from proceeding pro se. However, you may want to assist the
client, if able, in drafting a request to delay any hearing until the
Department of Justice Tax Division makes a determination on whether to
file for a declaratory judgment against the host state. Another option
available to the client would be to retain local counsel to initiate a
removal (340) action to federal court based upon federal question (341)
Be mindful of ethical concerns when advising married clients on
this issue. As the tax case from Virginia illustrated, one spouse’s
filing may be detrimental to the other spouse. One attorney may not be
able to provide competent counsel to both spouses on this issue. As for
dual representation, an attorney would need to verify licensing
jurisdiction regulations. For military practitioners, additional
restrictions may apply that limit dual representation.
Finally, be mindful that many of the best arguments that can be
made on behalf of a client are yet to have undergone judicial review.
This issue is not only ripe for preventive law measures but also for
The purpose of the SCRA is to flee servicemembers and now
qualifying spouses from some of the burdens of military life so they can
focus on their military duties. The quandary that some states have cast
servicemembers and their spouses into by challenging their domicile need
not continue. By requiring servicemembers and spouses to meticulously
document and consume their energies in maintaining connections with a
home state, even though the SCRA says they need not do so to maintain
domicile, some states contradict the very intent of the SCRA. This area
of law could very well be in its infancy due to the MSRRA reviving the
age-old issue of domicile.
Servicemembers increasingly have little predictability as to when
they will receive military orders to a new duty location. Scrutiny of
domicile must take into account the uncertainty of where a servicemember
and spouse may reside and the duration of that residence. Legal
assistance practitioners can help prevent and respond to host state
domicile challenges. For active duty military and their spouses,
domicile should not be subject to a host state challenge using absence
from a home state and presence in a host state. These terms necessarily
include those activities and connections inherent residing in a
particular location. It is only with this understanding that
servicemembers and spouses can truly call a place home, a decision a
state tax authority should not decide for them.
Appendix 1: Domicile Legal Assistance Client Questionnaire
1. Which state do you call “home” and why?
2. With which state would you say you have the most connections?
3. What state is reflected on your DD Form 2058 and Leave and
Earning Statement? Why did you claim that state?
4. Which state issued your marriage license?
5. If divorced, which state issued a divorce decree?
6. In which state(s) have you been a party to litigation?
7. Where do you own property? (Land, residence, rentals)
8. Do you claim a homestead exemption on your property for property
9. How much have you paid in property taxes? (this is relevant to
form the basis of an argument for double taxation … only States
without income tax collect the same revenue by other means).
Privileges / Exercising Rights
10. Which state issued your current driver’s license?
11. Where do you have a vehicle registered?
12. In which state do you normally operate your vehicle(s)?
13. Where are you registered to vote?
14. Do you hold any professional licenses? From which state(s)?
15. In which state(s) do you have a fishing or hunting license?
Resident or nonresident?
16. Have you ever used local law enforcement, fire services, or
other community services?
17. Have you ever received state unemployment or worker’s
18. Have you or your dependents applied for or received instate
tuition rates for school?
19. Where do you receive mail?
20. Have you ever filed a permanent change of address form with the
U.S. Postal Service?
Income / Financial Transactions
21. In which state(s) have you spent most of you time working?
22. Is your employment location permanent or temporary?
23. Do you own a small business? If so, in which state is it
24. Do you bank locally or primarily online?
25. What other transactions do you have with financial
institutions, such as a local investment firm?
26. What state-oriented insurance do you carry? Vehicle liability
27. Where have you filed a resident or nonresident income tax
28. Have you paid income tax to any state?
29. Are you a member of a union in a particular state?
30. Are you a member of a place of worship in a particular state?
31. In which state are you a member of a social, fraternal,
athletic organization, club, lodge, or any other organization?
32. In which state do you spend most of your leisure time?
33. Where do you and/or your dependents attend school?
34. Do you provide charitable contributions to an organization in a
Appendix 2: Sample Letter to State Tax Authority
I represent the interests of [Client] regarding the [notice of
deficiency, audit, or verification] received from your office. My
representation is pursuant to the military legal assistance program,
authorized under 10 U.S.C. [section] 1044. [Air Force attorneys must
include a statement like this in compliance with Air Force Instruction
51-504, paragraph 1.6.4. making it clear the Air Force does not
represent the client in resolving the matter.] We request that the
[notice of deficiency, audit, or verification] be [abated or withdrawn]
against [Client] based on the authorities and reasons discussed below.
The domicile of servicemembers and spouses is protected for
purposes of taxation under 50 U.S.C. App [section] 571, referred to as
the Servicemembers Civil Relief Act (SCRA), which also includes the
Military Spouse’s Residency Relief Act (MSRRA). This law states in
part that [Client] “shall neither lose nor acquire a residence or
domicile for purposes of taxation … by reason of being absent or
present in any tax jurisdiction of the United States solely in
compliance with military orders.”
This statute alters domicile analysis for servicemembers and their
spouses for purposes of income taxation. Even without this protection,
the historical domicile analysis as developed by the Supreme Court of
the United States favors [Client’s] position in this case. Of
importance is that domicile requires both a physical presence and the
intent to remain with permanency. (342) Once established, domicile is
presumed to continue until it is shown to have been changed. (343) The
motive for maintaining or changing domicile is irrelevant. (344) The
focus of determining a person’s domicile is whether intent to
permanently remain domiciled in a particular jurisdiction is for an
indefinite time, meaning one that is not contemplated to end. (345)
Since [Client] is in [host state] solely in compliance with military
orders, an end to this residency is anticipated when [Client’s]
next military assignment is received. [Client] has not taken any actions
with the motive to change domicile from [home state].
In addition to historical domicile analysis, [Client] benefits from
the protection of the [SCRA or MSRRA]. This law must be interpreted
“with an eye friendly to those who dropped their affairs to answer
their country’s call,” (346) and must be “liberally
construed to protect those who have been obliged to drop their own
affairs to take up the burdens of the nation.” (347) The statute
simply means that the taxable domicile of servicemembers and their
spouses will not change due to military assignments. (348) This statute
should not be dependent on state law because it is intended to have
uniform nationwide application. (349)
Some states use a simple test to determine the domicile of a
servicemember, such as home or record or the domicile declared by the
servicemember. (350) A servicemember’s declared domicile is
accomplished by completing a Department of Defense Form 2058 entitled
“State of Legal Residence Certificate.” (351) Without a
predictable application of the law, servicemembers and their spouses may
be threatened with a domicile challenge every time they move to a new
state. This is why they should be able to rely on their declaration on
their State of Legal Residence Certificate.
Even if a factors bases domicile analysis is used, the language of
the [SCRA or MSRRA] exempts the absence from [home state] and presence
in [host state] from the analysis. This includes activity that is
inherent to being absent from [home state] and present in [host state],
including but not limited to: owning or renting a residence, student
status, employment location, obtaining a driver’s license, location
of a motor vehicle, compliance with motor vehicle registration
requirements, obtaining a local fishing or hunting licenses, location of
financial transactions, receiving mail, amount of time spent in a
location, dependent’s attendance at school, non-profit organization
membership, church attendance, and statements made to insurance
companies regarding residency.
Based on the cited legal authorities and the fact that litigating
this matter will detract from [Client’s] ability to support the
military mission for which [Client] is present in [host state], we
respectfully request that the [notice of deficiency, audit, or
verification] be [abated or withdrawn].
Please notify me at your earliest convenience if this matter will
not be resolved in [Client’s] favor. If the matter is not resolved
by this letter, we request that you suspend the proceedings so that I
can seek to secure representation of [Client] in this matter by the
Department of Justice, Tax Division, Office of Special Litigation. We
are committed to expeditiously resolving this matter without further
(1) The spelling of the word has changed over time, commonly
spelled “domicil” in older cases, but presently spelled
(2) THE WORLD BOOK DICTIONARY 624 (2003).
(4) THE BARNHART DICTIONARY OF ETYMOLOGY (Robert K. Barnhart ed.,
(5) Munroe v. Douglas (1820) 56 Eng. Rep 940 (Ch.).
(6) Id. at 940-41.
(7) Udny v. Udny, (1869) L.R. I H.L. Sc. 448 (Lord Hatherley LC).
(8) Id. at 460.
(9) Id. at 450.
(10) Id. at 458 (Lord Westbury).
(11) Id. (stated by Lord Westbury).
(12) Joseph Henry Beale, Social Justice and Business Costs–A Study
in the Legal History of Today, 49 Harv. L. Rev. 593, 595-96 (1936).
(13) See e.g. Major Wendy R Daknis, Home Sweet Home: A Practical
Approach to Domicile, 177 MIL. L. REV. 49 (2003) (discussing various
aspects of domicile and providing a checklist of items relevant to
(14) Maksym v. Board of Election Com’rs of City of Chicago,
950 N.E.2d 1051 (III. 2011) (involving Rahm Emmanuel’s candidacy
for mayor of the City of Chicago, who previously served as the Chief of
Staff for the President of the United States).
(15) 50 U.S.C. App. [section] 571 (2012).
(16) ALASKA STAT. [section] 37.13.010 (2012) (enacting the PFD
created under Article IX, Section 15 of Alaska’s constitution).
(17) ALASKA STAT. [section] 43.23.008(a)(3)(A) (2012).
(18) Schikora v. Dep’t. of Revenue, 7 P.3d 938 (Alaska 2000)
(discussing ALASKA SLAT. [section][section] 01.10.055,
43.23.005(a)(2-4), 43.23.095(8) (1997)).
(19) Eagle v. Dep’t of Revenue, 153 P.3d 976 (Alaska 2007).
(20) Id. at 977.
(21) Id. at 979.
(22) ALASKA STAT. [section] 25.24.900 (2012) (stating “A
person serving in a military branch of the United States government who
has been continuously stationed at a military base or installation in
the state for at least 30 days is considered a resident of the state for
the purposes of this chapter.”).
(23) NEV. REV. STAT. [section] 125.020 (2012).
(24) N.M. STAT. [section] 40-4-5 (2012) (stating that for purposes
of dissolving a marriage, jurisdiction is premised on six months
residency prior to filing suit and domicile in the State, but military
personnel residing or orders in the State “for such period of six
months shall, for the purposes hereof, be deemed to have a domicile of
the state and county where such military base or installation is
(25) N.C. GEN. STAT [section] 50-18 (2012); see also Martin v.
Martin, 118 S.E.2d 29, 31 (1961) (interpreting Section 50-18 as only
satisfying the State’s residency requirement and leaving intact the
traditional domicile requirements, stating that “[there] must be
both residence and animus manendi” for jurisdiction to vest).
(26) Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964) (holding
that an Alaska court had jurisdiction over a divorce action filed by an
Air Force officer who met the then one-year residency requirement to
file such actions, and that the officer’s being domiciled in
another state was immaterial, expressly holding that “[d]omicile is
not the sole jurisdictional basis for divorce unless made so by
(27) See infra, Section V.
(28) See Mitchell v. United States, 88 U.S. 350 (1874).
(29) Id. at 351.
(33) Id. at 352.
(34) Id. at 353.
(36) Id. at 353.
(40) See Desmare v. United States, 93 U.S. 605,610 (1876).
(41) Newton v. Mahoning Cnty. Comm’rs, 100 U.S. 548, 562
(1879) (emphasis in original).
(42) See MEMBERS OF THE SUPREME COURT Or THE UNITED STATES,
http://www.supremecourt.gov/about/ members.aspx (last visited Oct. 8.
(43) Williamson v. Osenton, 232 U.S. 619, 624 (1914) (citing
“Story, Conflict of Laws, [section] 43”).
(44) Williamson v. Osenton, 220 F. 653, 655 (4th Cir. 1915).
(46) Williamson, 232 U.S. at 623-4.
(47) Williamson, 220 F. at 655.
(48) Williamson, 232 U.S. at 623.
(49) Id. (internal quotation marks omitted).
(50) Id. at 625.
(52) Gilbert v. David, 235 U.S. 561, 569 (1915) (internal quotation
marks and citations omitted).
(53) Id. (quoting Price v. Price, 27 A. 291, 293 (1893)).
(55) Gilbert v. Selleck, 106 A. 439 (Conn. 1919) (providing the
details of the case previously decided by the Supreme Court).
(56) Id. at 439.
(58) Gilbert, 235 U.S. at 565.
(60) Id. at 570.
(63) Id. at 571.
(64) See Texas v. Florida, 306 U.S. 398 (1939).
(65) Id. at 402.
(66) Id. at 410.
(67) Id. at 404.
(68) Id. at 408.
(69) Id. at 409 n.2.
(70) Id. at 411.
(72) Id. at 413.
(73) Id. at 417.
(75) Id. at 421.
(76) Id. at 425-26.
(77) Id. at 426.
(78) Id. at 424-27.
(79) Williams v. North Carolina, 317 U.S. 287, (1942).
(80) Williams v. North Carolina, 325 U.S. 226, (1945).
(81) Williams, 317 U.S. at 289-91.
(84) Williams, 325 U.S. at 227 (summarizing Williams I).
(85) Id. (internal quotation marks omitted).
(86) Id. at 229.
(87) Id. at 230-32.
(89) Id. at 233.
(90) Id. at 236.
(91) Id. at 235.
(92) Id. at 239.
(93) See e.g. Brandt v. Brandt, 268 P.3d 406 (Colo. 2012).
(94) MARK E. SULLIVAN, THE MILITARY DIVORCE HANDBOOK 418-421 (2d.
ed. 2011) (identifying unique issues and providing excellent guidance on
the issue of domicile in divorce proceedings involving servicemembers).
(95) District of Columbia v. Murphy, 314 U.S. 441 (1941).
(96) Id. at 445-47.
(97) Id. at 445.
(98) Id. at 449-50.
(99) Id. at 449.
(100) Id. at 450 (quoting 84 Cong. Rec. 8824 (statements of Sen.
Overton, chairman of the Senate conferees)).
(101) Id. at 451 (quoting 84 Cong.Rec. 8825 (statements of Sen.
Overton, chairman of the Senate conferees)).
(102) Id. at 451 n.2.
(103) Id. at 452.
(104) Id. at 453.
(105) Id. (citing and quoting Atherton v. Thornton, 8 N.H. 178, 180
(1835) (stating “It has generally been considered that persons
appointed to public office under the authority of the United States, and
taking up their residence in Washington for the purpose of executing the
duties of such office, do not thereby, while engaged in the service of
the government, lose their domicil in the place where they before
resided, unless they intend on removing there to make Washington their
permanent residence.”)); See also Id. at 453 n.6.
(106) Id. at 454.
(109) Id. at 454-55.
(111) Id. at 455 n.9.
(112) Id. at 455.
(113) Id. at 455-56.
(114) Id. at 456.
(115) Id. at 456-58.
(116) Id. at 458.
(117) Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30
(118) Id. at 36 (citing Indian Child Welfare Act of 1978, 25 U.S.C.
[section][section] 1901-63 (1989)).
(119) Id. (quoting [section] 1911(a)).
(120) Id. at 42-43.
(121) Id. at 43.
(122) Id. (internal quotation marks and citations omitted).
(123) Id. (citations omitted).
(124) Id. at 47.
(126) Id. at 47-48.
(127) Id. at 48.
(128) See PHILIPPE DE REMI BEAUMANOIR, COUTUMES DE BEAUVAISIS OF
PHILIPPE DE BEAUMANOIR (F. R. P. Akehurst trans., Univ. of Penn. Press
1992) (a collection of French legal customs and traditions compiled in
(129) Id. at 53.
(130) Id. at 378.
(131) See e.g. Breitenbach v. Bush, 44 Pa. 313, 1863 WL 4799 *3
(1863) (holding constitutional the Stay Law of April 18, 1861, P.L. 409
which provided in Section 4 that “No civil process shall issue or
be enforced against any person mustered into the service of this state
or of the United States, during the term for which he shall be engaged
in such service, nor until thirty days after he shall have been
discharged therefrom: Provided, that the operation of all statutes of
limitation shall be suspended upon all claims against such person during
(132) See Stewart v. Kahn, 78 U.S. 493, 493-94 (U.S. 1871) (holding
the Act of Congress, June 11, 1864, 13 Stat. 123, as valid and
applicable to federal and state courts, suspending prescription period
(statute of limitations) when service of process could not be affected
upon a person due to the conflict).
(133) Conroy v. Aniskoff, 507 U.S. 511, 520 (1993) (citing 55 Cong.
Rec. 7787 (1917)).
(134) Id. at 521 (internal quotation marks and citations omitted).
(135) See Id.
(136) See Id.
(137) See Id. at 522 (citing Soldiers’ and Sailors’ Civil
Relief Act of 1918 [section] 603, 40 Stat. 449 (1918)).
(138) 50 U.S.C. App. [section] 510 (1940).
(139) Conroy, 507 U.S. at 515. See also 507 U.S. 515 n.8 (citing
Section 14 of the Selective Service Act of 1948, 62 Stat. 623, providing
that the 1940 Act “shall be applicable to all persons in the armed
forces of the United States” until the 1940 Act “is repealed
or otherwise terminated by subsequent Act of the Congress.”)
(140) SSCRA protections were extended to activated members of the
National Guard meeting certain conditions as provided in the Veterans
Benefits Act of 2002, Pub. L. 107-330 [section] 305, 116 Stat. 2820
(141) A decision by the United States Court of Appeals for the
Fifth Circuit did hold that the provisions of the SSCRA did not extend
to career servicemembers. Pannell v. Continental Can Co., Inc., 554 F.2d
216 (5th Cir. 1977). However, that reasoning and conclusion is invalid.
See Conroy v. Aniskoff, 507 U.S. 511, (1993); Crouch v. General Elec.
Co., 699 F.Supp. 585 (S.D.Miss. 1988); Bickford v. United States, 656
F.2d 636 (Ct.CI. 1981).
(142) Servicemembers’ Civil Relief Act of 2003, Pub. L.
108-189, [section] 1, 117 Stat. 2835 (2003).
(143) 50 U.S.C. App. [section] 502 (2003).
(144) King v. St. Vincent’s Hosp., 502 U.S. 215 (1991) (citing
Massachusetts v. Morash, 490 U.S. 107, 115 (1989)).
(145) Le Maistre v. Leffers, 333 U.S. 1, 6 (1948) (quoting Boone v.
Lightner, 319 U.S. 561, 575 (1943)).
(146) Boone, 319 U.S. at 575.
(147) The internal Sections of the Act are not used in this
article. Section 50 U.S.C. App. [section] 571 is internally Section 511
of the SCRA.
(148) The SSCRA is the forerunner to the SCRA.
(149) 54 Stat. 1178, the SSCRA of 1940.
(151) Dameron v. Brodhead, 345 U.S. 322 (1953).
(152) Id. at 325.
(153) Id. at 323 (internal quotation marks omitted).
(154) Id. (citing Cass v. Dameron, 244 P.2d 1082 (Colo. 1952).
(155) Cass, 244 P.2d at 1084.
(156) Dameron, 345 U.S. at 324, 327 (noting that this provision was
added in large part in 1942).
(157) Id. (noting that this provision was added in a 1944
(158) Id. at 325 (citations omitted).
(159) Id. (citing U.S. Const. Art. I, [section] 8, cl. 11, cl.
(161) Id. at 325-26 (citing H.R. Rep. No. 2198, 77th Cong., 2d
Sess., p. 6).
(162) Id. at 326.
(163) Id. (internal citation omitted).
(164) Udny v. Udny, (1869) L. R. 1 H. L. Sc. 448 (Lord Hatherley
(165) See Sullivan v. United States, 395 U.S. 169 (1969). See also
California v. Buzard, 382 U.S. 386 (1966), and Snapp v. Neal, 382 U.S.
(166) Snapp, 382 U.S. at 397-98.
(169) Buzard, 382 U.S. at 387-89.
(170) Id. at 388.
(171) Id. at 388-89.
(172) Id. at 389.
(174) The SSCRA provision was located at Section 514 of the Act at
that time, later changed to Section 574, then to the present Section
(175) Buzzard, 382 U.S. at 389.
(176) Id. at 392-96.
(177)Id. at 393.
(178) Id. at 396.
(179) Id. at 393.
(180) Sullivan v. United States, 395 U.S. 169 (1969).
(181) Id. at 176-77.
(182) Id. at 180.
(183) Id. at 181-82.
(184) 123 Stat. 3007 (2009).
(191) United States v. Kansas, 580 F.Supp. 512, 517 (D. Kan. 1984)
(refusing to strike down Kansas law from “keying progressive rates
of taxation to military compensation of nonresident
(192) Christian v. Strange, 392 P.2d 575 (Ariz. 1964). Mr.
Strange’s rank is not provided in reported case.
(193) Id. at 575.
(195) Id. at 576.
(196) Id. (citing Woodroffe v. Village of Park Forest, 107 F.Supp.
(197) I.R.S. Chief Couns. Mere. 200518071, 2005 WL 1061025 (May 6,
(198) 50 U.S.C. App. [section] 571 (2009).
(203) See Uniform Code of Military Justice, 10 U.S.C.
[section][section] 801-803; 877-934 (2012).
(204) S. REP. No. 111-46, at 1 (2009).
(205) Id. at 19-21.
(206) Id. at 20.
(207) See Id. at 10-13 (providing the comments submitted by the
Office of the Under Secretary of Defense (Personnel and Readiness)).
(208) Id. at 10.
(210) See Dameron v. Brodhead, 345 U.S. 322 (1953).
(211) S. REP. No. 111-46, at 10-11 (2009).
(212) Id. at 11.
(216) See Lieutenant Colonel Samuel W. Kan, What We Know: A Brief
Tax Update, 2012-MAY Army Law. 15 (2012) (providing current information
with statutory reference for each state’s treatment of military
pay); see also U.S. Navy Office of the Judge Advocate General, Legal
Assistance Policy Division, State Tax Guide,
(last visited Nov. 20, 2012).
(217) See cases cited infra notes 218-220.
(218) See Department of Taxation, Commonwealth of Virginia, PD
12-16, 2012 WL 906792 (Mar. 5, 2012); PD 11-90, 2011 WL 2266800 (Jun. 2,
2011); PD 10-220, 2010 WL 4593994 (Sep. 16, 2010) (all holding MSRRA
provisions met, refund awarded on appeal).
(219) See Department of Taxation, Commonwealth of Virginia, Policy
Decisions: PD 12-120, 2012 WL 3262849 (Jul. 26, 2012) (denying MSRRA
protection where spouse took overt acts to establish same domicile as
servicemember but never had a physical presence in servicemember’s
home state); PD 12-59, 2012 WL 1666586 (Apr. 27, 2012) (denying MSRRA
protection where spouse maintained sufficient contacts with Virginia
upon moving to Virginia pursuant to servicemember’s military
orders); PD 12-11, 2012 WL 767403 (Feb. 27, 2012) (denying MSRRA
protection due to contacts with Virginia and not maintaining same
domicile as servicemember); PD 11-158 (Sep. 16, 2011) (denying MSRRA
protection because spouse did not have same domicile as servicemember
prior to moving to Virginia pursuant to military orders) (available at
http://www.policylibrary.tax. virginia.gov/OTP/Policy.nsf (last visited
Nov. 16, 2012); PD 11-119, 2011 WL 4056781 (Jun. 24, 2011) (denying
MSRRA protection because both spouse and servicemember maintained
sufficient contacts with Virginia, causing servicemember to also be
assessed taxes on review); PD 11-114, 2011 WL 4056776 (Jun. 21, 2011)
(denying MSRRA protection where spouse maintained sufficient contacts
with Virginia); PD 11-104, 2011 WL 4056766 (Jun. 10, 2011) (denying
MSRRA protection of spouse who shared same domicile as servicemember but
established sufficient connections with Virginia to abandon that
domicile prior marriage); PD 11-66, 2011 WL 1897357 (Apr. 26, 2011)
(denying MSRRA protection because spouse did not have same domicile as
servicemember prior to moving to Virginia pursuant to military orders);
PD 11-16, 2011 WL 639128 (Feb. 11, 2011) (denying MSRRA protection due
to contacts with Virginia and not maintaining same domicile as
servicemember. This same opinion is also cited as 2011 WL 1167648); PD
10-237, 2010 WL 4594026 (Sep. 30, 2010) (denying MSRRA protection to
spouse, examination of servicemember’s record resulted in finding
that servicemember maintained sufficient contacts with Virginia, causing
five year review of servicemember’s income for possible tax
(220) See Department of Taxation, Commonwealth of Virginia, Policy
Decisions: PD 11-193, (Dec. 2, 2011); PD 10-273, 2010 WL 8513292 (Dec.
16, 2010); PD 10-199, 2010 WL 4593945 (Aug. 31, 2010); PD 10-171, 2010
WL 4593905 (Aug. 10, 2010); PD 10-23, 2010 WL 4594011 (Mar. 26, 2010)
(SCRA inapplicable to Virginia’s audit and reallocation of
deductions and adjustments where Virginia domiciled spouse filed
separate return from nonresident servicemember).
(221) Department of Taxation, Commonwealth of Virginia, PD 10-220,
2010 WL 4593994 (Sep. 16, 2010).
(222) Id. at * 1.
(224) Id. at *2.
(228) U.S. Dep’t of Def., DD Form 2058, State of Legal
Residence Certificate (Feb. 1977).
(229) Tax Reform Act of 1976, Pub. L. No. 94-455, 90 Stat. 1787.
(230) See supra note 228.
(231) See supra note 221 at * 1.
(232) Vir. Dep’t of Taxation Form VA-4, Rev. 11/09.
(233) Department of Taxation, Commonwealth of Virginia, PD 10-237,
2010 WE 4594026 (Sep. 30, 2010).
(234) Id. at *1.
(236) Id. at *2.
(238) Id. at * 1.
(239) Id. at *2-3.
(240) Id. at *1.
(243) Id. at *2-3.
(244) Id. at *2.
(245) Id. at *3.
(246) United States v. Minnesota, 97 F.Supp.2d 973 (D. Minn. 2000).
(247) Id. at 974-75 (citing 42 U.S.C. [section] 213(e) which is an
Administration provision for Public Health Service officers, extending
them the protections under the SCRA). The particular provision at issue
in Minnesota was then Section 574 of the SSCRA (currently Section 571 of
the SCRA). See
Id. at 978.
(248) Id. at 974.
(249) Id. at 983.
(251) Minn. Rule 8001.0300, subp. 3
(252) Id. at 978 n.6 (quoting I JOSEPH HENRY BEALE, CONFLICT OF
LAWS 155 (1916).
(253) Active duty integration with civilian communities helps bring
national conflict home to the nation and hopefully results in more
informed political decisions. With all of our armed forces holed up on
installations the true impact of war will not impact civilian
communities. Active duty families living in civilian communities helps
the nation become more acquainted with the wars it fights, much like
activated Reserve and National Guard personnel accomplish.
(254) Id. at 978 (citation omitted).
(255) Id. at 979-80 (discussing United States v. City of Highwood,
712 F.Supp. 138 (N.D.111.1989)).
(256) Id. at 980 (discussing United States v. Onslow City Bd. of
Educ., 728 F.2d 628 (4th Cir. 1984)).
(257) Id. at 981.
(258) Id. (quoting MINN. STAT. [section] 290.01, subd. 7).
(259) Id. at 981 (quoting Minn. Rule 8001.0300, subp. 2, stating in
part: “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 the person’s habitation is fixed, without any present
intentions of removal therefrom, and to which, whenever absent, that
person intends to return. A person who leaves home to go into another
jurisdiction for temporary purposes only is not considered to have lost
that person’s domicile. But if a person moves to another
jurisdiction with the intention of remaining there permanently or for an
indefinite time as a home, that person shall have lost that
person’s domicile … The mere intention to acquire a new domicile,
without the fact of physical removal, does not change the status of the
taxpayer, nor does the fact of physical removal, without the intention
to remain, change the person’s status.”).
(260) Id. at 982-83.
(261) Id. at 982.
(262) Id. at 983 (citing Sullivan v. United States, 395 U.S. 169
(263) Id. at 984.
(267) Id. (stating “The Department of Health and Human
Service’s own policy manual” Subchapter CC29.9, Instruction 2,
highlighting “factors which a state might consider in making
residency determinations, including the state in which a motor vehicle
is registered, the state that issued an officer’s driver’s
license, and the state in which an officer is registered to
(269) Id. (citing Helvering v. Southwest Consol. Corp., 315 U.S.
194, 198 (1942) (discussing whether the term “reorganization”
meant either “a statutory merger or consolidation, or … the
acquisition by one corporation in exchange solely for all or a part of
its voting stock …” under Section 112(g) (1) of the Revenue Act
of 1934, 48 Stat. 680); and Carollo v. Cement & Concrete Workers
District Council Pension Plan, 964 F.Supp. 677, 682 (E.D.N.Y.1997)
(discussing when a change in a base accrual formula is justified where
26 C.F.R. [section] 1.411(b)-1(b)(2)(ii)(F) provided “if the base
for the computation of retirement benefits changes solely by reason of
an increase in the number of years of participation.”)).
(273) See supra, note 163.
(274) See supra, note 51
(275) Minnesota, 97 F.Supp 2d at 985.
(277) Palandech v. Dep’t of Revenue, No. TC-MD 100015C, 2011
WL 1045641 (Or. T.C. March 23, 2011).
(278) Id. at *9-10.
(279) Id. at *2.
(283) Id. at *8.
(284) Id. at *9.
(286) Id. at *10.
(288) Caw v. Dep’t of Revenue, No. TC-MD 040979A, 2005 WL
3047252 (Or.T.C. Nov. 4, 2005).
(289) Id. at *1.
(304) Id. at *1-2.
(305) Id. at *2 (citing Minnesota, 97 F. Supp. 2d 973).
(306) Id. (quoting Minnesota, 97 F.Supp. 2d at 984) (the Tax Court
Magistrate only cited to Minnesota, neglecting to include quotation
marks, hence the absence of internal quotation marks to the quoted
(307) Id. at *3.
(308) Id. (citing Hudspeth v. Dept. of Revenue, 4 OTR 296, 298
(311) Id. at *3.
(313) Telephone Interview with Martin and Hollie Carr (Mar. 14,
(329) Minnesota, 97 F. Supp. 2d at 983 (citing Juskowiak v.
Comm’r of Revenue, No. 6607, 1996 WL 125912 (Minn. T.C. Mar. 18,
1996) (stating “Juskowiak examined neither the case law surrounding
the SSCRA nor the extent to which application of these presumptions
could seriously frustrate the intentions of Congress and the lives of
servicepersons protected by the Act.”); Wolf v. Comm’r of
Revenue, No. 7068, 1999 WE 640030, *2 (Minn. T.C. Aug. 17, 1999)
(applying the holding in Juskowiak)). See also Buzard, 382 U.S. at 393
n. 7 (expressly noting that its holding in Buzard involving SSCRA
domicile protections was directly at odds with the Virginia Court’s
holding in Whiting v. City of Portsmouth, 118 S.E.2d 505 (Va. 1961)
(holding that a serviceman is only exempt from a city motor vehicle
license tax if such a tax was paid to the home state)).
(330) See Carr v. Dep’t of Revenue, No. TC-MD 040979A, 2005 WL
3047252 (Or.T.C. Nov. 4, 2005).
(331) See, e.g., In the Matter of Ordinance of Annexation No.
1977-4, 249 S.E.2d 698,708(N.C. 1978) (holding that a local official
“cannot complain because Congress has exempted military personnel
from local taxation. Soldiers and Sailors Civil Relief Act, 50 U.S.C.
App. [[section]] 574.”).
(332) Missouri Dep’t of Rev. Form DOR 558 (11-2011) available
at http://dor.mo.gov/ forms/558_2011.pdf.
(334) See supra notes 228-230.
(335) See, e.g., CAL. VEHICLE CODE [section] 12817 (2012); CONN.
GEN. STAT. [section] 27-102a (2012); HAW. REV. STAT. [section]
286-107(g) (2012); IDAHO CODE ANN. [section] 49-319(8)(a) (2012); KAN.
STAT. ANN. [section] 8-247(b) (2012); and MR H. COMP. LAWS [section]
(336) State v. Storaasli, 230 N.W. 572, 574 (Minn. 1930) (stating
“It is a property tax in the sense that it exempts the vehicle
licensed from other taxation as property. It is in lieu of other taxes.
But it is equally clear that it is a privilege tax … It is so imposed
on nonresidents as a privilege tax.”).
(337) Mitchell v. United States, 88 U.S. 350, 353 (1874).
(338) See United States v. Kansas, 580 F.Supp. 512, 516-17 (D. Kan.
1984) (assuming Congress is aware of state tax authority practices and
would amend federal law to prevent such practices Congress deemed to
frustrate the purpose of federal law).
(339) See e.g. N.M. Dep’t of Rev. Bulletin B-300.14
(Revised/Sep. 2012), available at http://www.
(340) See 28 U.S.C. [section] 1441 (2012).
(341) See 28 U.S.C. [section] 1331 (2012).
(342) See Mitchell v. United States, 88 U.S. 350 (1874).
(343) Id. at 353.
(344) See Williamson v. Osenton, 232 U.S. 619, 625 (1914).
(345) Id. at 625.
(346) Le Maistre v. Leffers, 333 U.S. 1, 6 (1948) (quoting Boone v.
Lightner, 319 U.S. 561, 575 (1943)).
(347) Boone, 319 U.S. at 575.
(348) See Dameron v. Brodhead, 345 U.S. 322, 325 (1953).
(349) See e.g. Mississippi Band of Choctaw Indians v. Holy field,
490 U.S. 30, 43 (1989).
(350) See e.g. Missouri Dep’t of Rev. Form DOR 558 (11-2011).
(351) U.S. Dep’t of Def., DD Form 2058, State of Legal
Residence Certificate (Feb. 1977).
CAPTAIN DEAN W. KORSAK *
* Captain Dean W. Korsak (B.S., Liberty University (2002); J.D.,
cum laude, Mississippi College School of Law (2005)) serves as the Chief
of Military Justice, 902d Mission Support Group, Joint Base San
Antonio-Randolph, Texas. The author is a member of the Mississippi and
District of Columbia Bar Associations.