Comptroller of Treasury v. Lenderking

Singley, J., delivered the opinion of the Court. This case, on appeal from the Maryland Tax Court, is but another episode in the centuries-old pursuit by the tax collector of his prey. Mr. Lenderking, a foreign service officer, lived with his family in Montgomery County, Maryland, from February, 1967, until 28 December 1969, when he went to Japan on a temporary assignment, and returned to the United States sometime in October, 1970, when he took up residence, first in Virginia (where he lived with friends) and then in the District of Columbia, where he has since remained. What is in controversy here is Mr. Lenderking’s 1970 Maryland income tax liability: Maryland income taxes in the amount of $117.16 had been withheld during that year by the United States government, and Lenderking had paid an additional $700.00 on account of his estimated 1970 State income tax liability.

When Lender- ⁶¹⁵ king sought a refund of $564.11 on the theory that he had not been a resident of Maryland during 1970, and was not required to pay a tax on that part of his income earned when he was overseas, the Comptroller denied the refund, and assessed a deficiency of $372.12. On appeal, the Maryland Tax Court ordered a refund of $564.11 which Lenderking had paid and an abatement of the deficiency assessment. 1 From this order, the Comptroller has appealed. The controlling statute is Maryland Code (1957, 1969 Repl. Vol.) Art. 81, § 279 (i): “Resident” means an individual domiciled in this State on the last day of the taxable year, and every other individual who, for more than six months of the taxable year, maintained a place of abode within this State, whether domiciled in this State or not; but any individual who, on or before the last day of the taxable year, changes his place of abode to a place without this State, with the bona fide intention of continuing to abide permanently without this State, shall be taxable as a resident of this State for that portion of the taxable year in which he resided in this State and as a nonresident of the State for the remainder of the taxable year.

The fact that a person who has changed his place of abode, within six months from so doing, again resides within this State, shall be prima facie evidence that he did not intend to have his place of abode permanently without this State. Every individual other than a resident shall be deemed a nonresident. Where, however, an individual who during the taxable year transfers his residence to this State from a state or jurisdiction other than Maryland with ⁶¹⁶ the intent of becoming a resident of this State, he shall be taxable under this subtitle only with respect to taxable income as defined herein received by him from and after the date he becomes a resident of this State through the close of the calendar year and the allowable exemptions and dependent credit shall be prorated on the basis of the number of months during which residence was maintained in this State bears to twelve months, provided, however, that an individual filing a return in accordance with this provision shall not be entitled to the credit provided in § 290 of this subtitle for any income tax paid to the state or jurisdiction of his former residence while a resident of such former state or jurisdiction.” It is clear that the thrust of the Code provision is bifurcated : it reaches an individual who is domiciled in Maryland on the last day of the taxable year, as well as the individual “. . . who, for more than six months of the taxable year, maintained a place of abode within this State, whether domiciled in this State or not; . . . .” See Wood v. Tawes, 181 Md. 155, 160 , 28 A. 2d 850 (1942). It seems to be undisputed that Mr. Lenderking “maintained a place of abode” in Maryland, commencing in February, 1967.

His wife and children lived in the house in Montgomery County on which he paid taxes while he was out of the country and would appear to live there still. Mr. Lenderking argues that he and his wife have lived apart since August of 1970, and that he had determined as early as December, 1969 that he would never return to Maryland. Chief Judge Bond’s comment for the Court, in Wood v. Tawes, supra, 181 Md. at 160 is apposite here: “Whatever application the words ‘domicile’ and ‘resident’ may require elsewhere, under ⁶¹⁷ this statute [Code (1939) Art. 81, § 230, contained a definition identical with that of Art. 81, § 279 (1)] the tax is imposed on incomes of every individual who for more than six months of the taxable year maintained a place of abode within the State, whether domiciled in the State or not. It is a provision contained in a large number of State income tax statutes.

Maintenance of a place of abode, however, must involve at least a sufficient residence within the State to bring the individual within the taxing jurisdiction, otherwise the exaction might amount to a deprivation in violation of the Fourteenth Amendment of the United States Constitution. But subject to that qualification the State has power to impose the tax on such individuals even on the basis of income gained outside the jurisdiction, including that received as salary from the federal government. The exaction is of a share in the expenses of the State government, the benefits of which the individual chooses to enjoy. Domicile and the intention of the individual regarding continuance in his abode are not decisive, [citing cases]” Mr. Lenderking places his principal reliance on the issue of domicile.

He contends that prior to coming to Maryland, he had been domiciled in Connecticut, and would have us believe that Connecticut is still his domicile. However, he readily concedes