PETITIONER APPEARING PRO SE: ATTORNEYS FOR RESPONDENT:
JOHN KOKAJKA JEFFREY A. MODESITT
Crown Point, Indiana Attorney General of Indiana
ANGELA L. MANSFIELD
Deputy Attorney General
NOT FOR PUBLICATION
resident and contains the affirmative defense that this Court is without jurisdiction to hear this
cause because the petitioner has not complied with all statutory prerequisites for filing an original
his 1995 tax liability through collection by the Lake County Sheriff.
dispute the amount of the proposed assessment by filing a written protest within sixty days of the
mailing of the notice of proposed assessment. See Ind. Code Ann. § 6-8.1-5-1(c). The
Department denies a written protest by issuing a letter of findings. See id. § 6-8.1-5-1(e). The
taxpayer then has 180 days from the issuance of the letter of findings to appeal to this Court. See
id. § 6-8.1-5-1(g).
In this case, notices of proposed assessment for the 1992, 1994, and 1995 tax years were mailed on June 20, 1996. Kokajka testified that he mailed written protests to the Department concerning these proposed assessments. However, the Department has no record of receipt of these protests for these tax years (Aff. of Robert Robinson ¶ 4, Ex. I), and Kokajka could not testify with specificity as to the dates he mailed them (other than to state that he did so before the due date), nor could he provide copies of the protests that he claims to have sent. Even if this Court were to conclude that Kokajka did mail the protests, there is no evidence to show that they were correctly addressed. This Court therefore finds that Kokajka has not demonstrated that he properly filed a protest for the tax years 1992, 1994, and 1995. Because Kokajka did not comply with the procedures outlined in section 6-8.1-5-1, this Court is without jurisdiction to hear Kokajka's appeal of the assessments for those tax years.See footnote 5
This determination is not inconsistent with this Court's recent decision in Indiana Sugars, Inc. v. State Bd. of Tax Comm'rs, No. 49T10-9603-TA-00028 (Ind. Tax Ct. Aug. 19, 1997). In Indiana Sugars, this Court concluded that the State Board acted arbitrarily and capriciously when it determined that an applicant for an exemption had not mailed the application when the applicant's
agent stated that he had personally reviewed the application, personally checked the postage and
the addresses and personally went to the post office and mailed the application before the due
date. In this case, the only evidence that Kokajka presented was his testimony that he mailed a
protest. Although "the sworn testimony of a witness constitutes sufficient evidence to prove timely
mailing," Indiana Sugars, slip op. at 8, a litigant cannot expect to testify only that he mailed a
protest and nothing more and carry his burden of demonstrating a proper filing. Kokajka simply
did not make the detailed showing that the applicant did in Indiana Sugars.
As for the 1993 tax year, the Department mailed a notice of proposed assessment on September 29, 1996. Kokajka again testified that he mailed a protest. The Department alleged in its answer that Kokajka did not; however, the Department only proffered evidence at trial that it had no record of Kokajka filing a protest within sixty days of the mailing of the notices of proposed assessment for the tax years 1992, 1994, and 1995.See footnote 6 (Aff. of Robert Robinson ¶ 4, Ex. I). Certainly, this Court may assume that if the Department had competent evidence to show that Kokajka's protest was not timely filed, that evidence would be before this Court. Consequently, this Court finds that Kokajka properly filed a protest and that it has jurisdiction to entertain Kokajka's appealSee footnote 7 for the 1993 tax year.
Kokajka averred on his 1993 IT40PNR that he was a part-year resident of Indiana during
January 1993 and a resident of Nevada for the rest of the year. Kokajka also filed a 1993 Illinois
tax return in which he averred that he was a part-year resident of Illinois. He signed the Indiana
return on February 28, 1994, and listed his address as 3498 Marine Drive, Crown Point, Indiana.
He signed his Illinois return on April 5, 1994, also using his Indiana address. Kokajka (jointly
with his wife) has also claimed a homestead exemption for the Crown Point residence since 1979.
Kokajka also testified that during 1992-1995, he spent the bulk of his time in Nevada and
that he spent approximately one month per year in Indiana and one month per year in Illinois. He
also testified that he held an Illinois driver's license during that time.See footnote
Upon questioning by this
Court and the deputy attorney general, Kokajka testified that he had not registered to vote in
Nevada, that he owned no property there and that he only received pension, investment and social
security income (i.e., received no income from employment in Nevada).
A taxpayer domiciled in Indiana is an Indiana resident for tax purposes. See Ind. Code Ann. § 6-3-1-12(a) (West 1989); Ind. Admin. Code tit. 45, r. 3.1-1-21 (1996). Indiana residents
are subjected to taxation on all adjusted gross income, even income earned outside Indiana. See
Ind. Code Ann. § 6-3-2-1(a) (West 1989); see also generally Thomas v. Department of State
Revenue, 675 N.E.2d 362 (Ind. Tax Ct. 1997). This tax burden may be mitigated in two ways: 1)
an Indiana resident taxpayer may receive a credit for income taxes paid to another state, see Ind.
Code Ann. § 6-3-3-3(a) (West 1989), and 2) a taxpayer who changes his domicile (either to or
from Indiana) during a taxable year will not be forced to pay Indiana adjusted gross income taxes
for the entire year, but only taxes accruing during the taxpayer's Indiana residency, as well as non-
resident taxes. See Ind. Admin. Code tit. 45, r. 3.1-1-23(1), -23(2).
Kokajka does not argue that he is entitled to a credit for payment of other state income taxes or that his status changed during 1993. Rather, Kokajka argues that he was not an Indiana resident at all during 1993.See footnote 9 One of the regulations applicable to whether Kokajka was an Indiana resident during 1993 states: "Persons residing in Indiana but living part of the year in other states or countries will be deemed residents of Indiana unless it can be shown that the [other] abode is of a permanent nature." Ind. Admin. Code tit. 45, r. 3.1-1-23(4) (1996).
It is undisputed that Kokajka resided in Indiana during part of 1993. Therefore, without a
showing that he had a permanent place of abodeSee footnote
elsewhere, Kokajka will be deemed an Indiana
resident (i.e., subject to tax on all of his adjusted gross income). Merely presenting evidence
inconsistent with Indiana residency will not be sufficient to overcome the operation of this rule.
Instead, Kokajka must affirmatively demonstrate a permanent place of abode outside Indiana.
The evidence presented at trial demonstrated that Kokajka had connections with two other states during 1993: Illinois and Nevada. Kokajka's testimony that he spent the bulk of his time in Nevada eliminates Illinois as a possible permanent place of abode without Kokajka having any other connection to Illinois besides the possession of an Illinois driver's license and spending approximately one month per year there.
As for Nevada, Kokajka's possession of an Illinois driver's license may be somewhat inconsistent with Indiana residency, but it hardly establishes Nevada residency. Kokajka has testified that he spent the bulk of his time in Nevada and nothing more. He has not provided any other evidence to establish that his abode in Nevada is permanent. He has not registered to vote there; he has not registered an automobile there; he has not purchased residential property there, nor has he prepared a will there. See Ind. Admin. Code tit. 45, r. 3.1-1-22 (giving non-exclusive list of relevant facts in determining whether new domicile has been established). Additionally, in early 1994, he gave an Indiana address for his 1993 Indiana and Illinois tax returns, which suggests Indiana residency for 1993 and is at least inconsistent with Kokajka having a permanent abode in Nevada. These facts taken together do not demonstrate a permanent residence outside Indiana.
The domicile rules contained in the Indiana Administrative Code provide an independent
basis for this conclusion. "Once a domicile has been established, it remains until the conditions
necessary for a change of domicile occur." Ind. Admin. Code tit. 45, r. 3.1-1-22. Therefore, the
regulation places the burden of affirmatively demonstrating a change in domicile on Kokajka. This
he must do to escape taxation on all of his adjusted gross income for 1993. Kokajka has not done
so. The establishment of a new domicile requires more than merely spending the bulk of one's
time in a particular state. That is all Kokajka has shown; it is not enough.
This Court, therefore, finds that Kokajka has not met the burden of affirmatively demonstrating a permanent residence outside Indiana imposed by Department regulations. Consequently, Kokajka is deemed an Indiana resident during 1993. As a result, Kokajka is subject to taxation on all of his adjusted gross income for that year, and the Department properly assessed Kokajka on that basis.
does not fall into either category of small tax claims. Because neither party objected to the placement of this case on the small claims docket, and the parties tried this case as a small tax claim, this Court sees no reason to transfer this case to its plenary docket at this late date.
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