39-22-103(8)(a) - Resident Individual
(1)
General Rule. A natural person is a resident individual of
Colorado if either.
(a) The person is
domiciled in Colorado, or
(b) The
person satisfies the six-month rule (statutory residency rule).
(2)
Domicile.
(a)
General Rules Regarding
Domicile.
(i) A person's domicile is
in Colorado if the person's place of abode is in Colorado and that person,
whenever absent, has the present intention of returning after a departure or
absence, regardless of the duration of the absence. A place of abode is not
limited to a specific structure, but rather refers to a place or area to which
the person expects to return.
(ii)
An intention to initially establish domicile without being physically present
in the intended domicile is insufficient to establish a domicile in such
place.
(iii) A person can have only
one domicile at any given instant, even if such person has homes in more than
one state. See, paragraph (2)(d) regarding having more than one domicile during
the same tax year.
(iv) A person
who is domiciled in a state remains a domiciliary of that state even if the
person temporarily resides outside that state.
(v) Once a person's domicile is established
in a state, it will continue to be the person's domicile until the person
establishes domicile in another state.
(vi) A determination of residency or domicile
by a Colorado state or local government agency for non-tax purposes is not a
determination of domicile for purposes of Colorado income tax.
(b)
Intent to Establish
Domicile. The intent to establish a domicile is essential in the
determination of a person's domicile.
(i)
Because a person's subjective intent is difficult to determine, a person's
intention is determined only by objective, verifiable evidence. The indicia of
domicile and presumptions set forth in paragraphs (2)(c) and (4), below, will
determine a person's domicile, unless there is sufficient objective evidence to
overcome the presumptions.
(ii) A
person's reason for changing domicile, including to take advantage of tax
benefits of a place of abode, is irrelevant so long as the person has an
absolute and fixed intention to abandon one domicile and acquire another. For
example, a person can lawfully establish domicile in Nevada solely for the
purpose of living in a state with no income tax, but whether that person
truthfully has a present intention to establish domicile in Nevada and abandon
their domicile in Colorado is a matter of proof.
(c)
Indicia of Domicile. The
Department will consider a number of factors to determine a person's domicile.
These factors include, but are not limited to:
(i) Place of domicile in prior
years;
(ii) Length of time in a
purported domicile. Although domicile can be established on the first day that
a person is physically present in a state, the greater the length of time a
person is present in a place tends to indicate that that place is the person's
domicile;
(iii) Location of, and
length of time residing in, a place of abode by a spouse or dependent
children;
(iv) Jurisdiction that
issued person's current driver's license;
(v) Jurisdiction where motor vehicle is
registered;
(vi) Jurisdiction where
person is registered to vote;
(vii)
Employment status, including whether employment or employment duties in the
state are permanent or temporary and the location where the person performs
most of their employment duties.
(viii) In the case of a sole proprietorship
or other entity under the control of the person, the location of business
assets owned by the person or by an entity controlled by the person;
(ix) Receipt of government benefits, such as
unemployment benefits, welfare, and other government benefits;
(x) Location of living
accommodations;
(xi) Jurisdiction
that issued a professional license;
(xii) Jurisdiction where person filed a
resident or nonresident individual state income tax return;
(xiii) Statements of residency made publicly,
to third parties, and in documents, including applications for insurance,
federal income tax forms, or social media comments, particularly if such
statements are contrary to the person's interests;
(xiv) Primary mailing address for financial
documents and other important correspondence;
(xv) Business and social ties to the
community, including child's school, location of family, business memberships,
religious institution membership and social memberships;
(xvi) Location of primary care physician and
dentist;
(xvii) Location of real
property owned or controlled by the person and the attributes of such property,
such as size, value, and purposes for which it is used;
(xviii) Location of personal property and its
attributes, such as monetary and sentimental value and whether it was located
in prior place of domicile.
No one factor is determinative and not all factors may be relevant or equally weighted. For example, a person may register a vehicle where their vacation home is located and where the vehicle is primarily used, but that registration does not, by itself, create domicile. The amount of time spent in one place also does not always explain the difference between temporary home and domicile. A person may live in a temporary home or residence for months or years on a temporary work assignment or to attend school and maintain domicile in another state. The person's intent as shown by objective facts is the primary factor used to determine domicile.
(d)
Periodic and Seasonal
Changes in Domicile.
(i) In limited
cases, a person may periodically or seasonally abandon their domicile in one
state and establish domicile in another. For example, a person who has a house
in Colorado and Arizona and who seasonally moves from one home to another, may
be a domiciliary of Colorado and Arizona for different parts of a tax year if
the person treats both homes as their primary place of abode for the
season.
(ii) A person who lives in
a motorized home and does not own or lease residential real property that they
treat as their home in another state will be treated as a (full-year)
domiciliary of Colorado if they have permanent ties to the state and spend, in
the aggregate, more time in this state than in any other. However, a person who
owns a home in another state but travels seasonally or periodically to Colorado
will not, in the absence of other factors, be treated as a domiciliary of
Colorado.
(e)
Status as a Student. A student who moves to another state to
attend college but who does not intend to remain in that state after graduation
has not changed domicile. Moreover, a student who is being supported by a
parent or parents does not establish a domicile separate from the parent(s)
simply by attending school in another state regardless of whether the student
takes such steps as acquiring a driver's license or registering to vote in the
state in which he or she attends school.
(f)
Resident Aliens. A
person who is not a citizen of the United States but is a permanent resident
alien may establish a domicile in Colorado. A person on a temporary visa is not
a domiciliary. However, he or she may be a resident under the six-month
rule.
(3)
Six-Month Rule or Statutory Resident Rule.
(a) A person satisfies the six-month rule if:
(i) The person maintains a permanent place of
abode in Colorado, and
(ii) Spends,
in the aggregate, more than six months of the taxable year in
Colorado.
(b) This six
month rule does not apply to:
(i) A member of
the armed forces who is stationed in Colorado pursuant to an order of the armed
forces (see, Servicemembers Civil Relief Act of 2003 (50 USC App. §
501-597b));
(ii) A Colorado
domiciliary who abandons their Colorado domicile during the tax year and does
not maintain a permanent place of abode in Colorado after abandoning their
domicile;
(iii) A person who is
domiciled outside Colorado and establishes their domicile in Colorado during
the tax year, unless that person has a place of abode in Colorado while
maintaining a domicile outside Colorado;
(iv) A student whose domicile is not Colorado
and attends college in Colorado but does not have a permanent place of abode in
Colorado.
(c) A
"permanent place of abode" means any place in which a person has a possessory
right to live.
(i) The person need not own the
permanent place of abode. For example, a lease of an apartment can constitute a
permanent abode.
(ii) A
recreational vehicle with sleeping and cooking accommodations can constitute a
permanent place of abode.
(iii) A
person need not be liable for the lease or mortgage obligation for the
permanent place of abode. For example, a person, whose domicile is in another
state and whose employer leases an apartment in Colorado for the person to
reside while on a temporary assignment in Colorado, has a permanent place of
abode in Colorado.
(d)
The six month rule applies even if the person is a domiciliary of another
state. For example, a person who is not domiciled in Colorado is a resident
individual of Colorado for Colorado income tax purposes if the person maintains
a permanent place of abode in Colorado and lives during the tax year, in
aggregate, more than six months in Colorado.
(4)
Burden of Proof and
Presumptions. The burden of production and persuasion (collectively
referred to in this rule as the burden of proof) is on the person asserting a
change of domicile or rebutting a presumption. Whether the burden of proof has
been met will be determined based only on objective evidence and cannot
ordinarily be established by subjective evidence (e.g., self-serving statements
of intent unless such statements are against one's interest).
(a) The place where one currently lives is
presumed to be the person's current domicile.
(b) Once a domicile is established, it is
presumed to continue in such place.
(c) Spouses are presumed to have the same
domicile or permanent place of abode. This presumption does not apply after
spouses are separated, even though no judgment or decree of separation or
divorce has been rendered.
(d) A
person in the armed forces does not, as a matter of law, abandon his or her
domicile solely by reason of being absent from their state of domicile pursuant
to orders of the armed services. However, such a person is not precluded from
changing their domicile.
(e) A
minor child and a dependent are presumed to have the same domicile or permanent
place of abode as the custodial parent or custodial guardian. A minor child
cannot, by their acts or intentions, change domicile.
(f) A person who is domiciled in Colorado and
who leaves this state to accept a job assignment in a foreign nation is
presumed not to have abandoned their Colorado domicile.
(g) The six-month rule does not create a
presumption that a Colorado domiciliary not physically present in Colorado for
more than six months has abandoned their Colorado domicile.
(h) The domicile of a person in the armed
forces will initially generally be determined by the facts existing immediately
prior to becoming a member of the armed forces.
(i)
Presumptions Regarding Permanent
Place of Abode.
(i) The mere
ownership or leasing of real property in a jurisdiction is not presumed to be a
place of abode in that jurisdiction.
(ii) A place of abode owned by an individual
who leases it to others, not related to the owner or their spouse by blood or
marriage where the individual has no right to occupy any portion of the
premises and does not use such premises as their mailing address during the
term of the lease is presumed not to be a permanent place of abode.
(iii) A recreational vehicle camp lot or camp
ground without a hookup is presumed not to be a permanent place of
abode.
(iv) A motel room or any
construction which does not contain facilities ordinarily found in a place of
abode, such as facilities for cooking, bathing, etc., is generally not deemed a
permanent place of abode.
(v) A
rented apartment, house, or condominium of an individual on a temporary work
assignment in a state that returns to their state of domicile when they are not
working (e.g. weekends) is generally not deemed a permanent place of
abode.
(vi) An apartment, house, or
condominium in a state paid for by an employer in a location that is not the
person's domicile is not considered a permanent place of abode if the person is
in the state on a temporary work assignment. For example, an individual
domiciled in another state may reside in an apartment in Colorado while on
temporary assignment for the employer, after which the person will return to
their domicile. If the employer pays for an apartment in Colorado while the
employee is on a temporary work assignment in Colorado, the apartment does not
constitute a permanent place of abode. However, if the employee pays for an
apartment while on a temporary work assignment in Colorado and remains in
Colorado when not working, the employee's apartment is a permanent place of
abode.
Notes
1. See IRS Publication 555 "Community Property" regarding the definition of domicile.
2. See Department Rule 39-22-108(3)(b) for special rules relating to persons in the military and their spouses.
3. People v. White 242 P.3d 1121 (2010), ("The current principal-or-primary-home test for voting purposes, largely adopted by the legislature in 1979 and now expressly made applicable to motor vehicle and income tax matters as well, however, clearly resolves this ambiguity [pertaining to the meaning and proof of "residence"] in favor of an objectively determined "legal residence" or domicile.")
4. § 1-2-102(1)(a)(I), C.R.S.
5. Texas v. Florida, 307 U.S. 398 (1939)
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