Tom Conway

12-21

The Taxpayer was a resident and domicile of Las Cruces, New Mexico for at least the ten years before 2004.  He ran his own business in Las Cruces until 2003.  After closing his business, the Taxpayer sought work for needed income and medical insurance for his wife’s ongoing medical expenses, as she has a serious condition that prevents her from working.  In late 2003, the Taxpayer sought employment with the United States Merchant Marines.  The Taxpayer went to Florida, where he obtained a temporary position aboard a ship with the Merchant Marines.  The Taxpayer’s wife remained in Las Cruces.  In August and September 2004, the Taxpayer returned to New Mexico to visit family.  During 2004, the Taxpayer voted in New Mexico, had three cars registered in New Mexico, and changed his voter registration in New Mexico from one Las Cruces address to another as his wife had moved out of their rented home into a mobile home after he went to Florida initially.  In 2005, the Taxpayer received a permanent posting on a ship ported out of Corpus Christi, Texas.  In 2006, the Taxpayer purchased and registered a vehicle in New Mexico.  On July 10, 2007, as a result of a tape match with the IRS, New Mexico assessed the Taxpayer for unpaid 2004 personal income tax, penalty and interest.  The Taxpayer filed a written protest to the assessment.  In 2008, the Taxpayer registered to vote in Texas, at some point in 2008 or 2009, he obtained a Texas driver’s license, and on January 21, 2009, the Taxpayer re-registered his vehicle in Texas.  At various points, the Taxpayer spoke to three different tax professionals, none of whom he retained, who told him that he was not required to pay New Mexico personal income tax.  There is no evidence regarding which facts he disclosed to these individuals before receiving their advice.  At the hearing, the hearing officer found that the evidence established that the Taxpayer did not change his domicile from New Mexico to any other location in 2004.  This conclusion was reached by considering the twelve domicile factors set forth in Regulation 3.3.1.9(C)(4) NMAC.  Additionally, the hearing officer found that the Taxpayer’s reliance on the advice of the tax professionals he spoke to did not provide enough cause to abate penalty.  The Taxpayer’s protest was denied.