Colo. Code Regs. 39-22-103(8)(a)
Current through Register Vol. 47, No. 16, August 25, 2024
Rule 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. Colorado Register, Vol 37, No. 14. July 25, 2014, effective 8/14/201437 CR 18, September 25, 2014, effective 10/15/201437 CR 19, October 10,2014, effective 10/30/201437 CR 22, November 25, 2014, effective 12/16/201438 CR 04, February 25, 2015, effective 3/17/201538 CR 07, April 10, 2015, effective 4/30/201538 CR 11, June 10, 2015, effective 6/30/201538 CR 22, November 25, 2015, effective 12/15/201538 CR 24, December 25, 2015, effective 1/14/201638 CR 24, December 25, 2015, effective 1/19/201639 CR 01, January 10, 2016, effective 1/30/201639 CR 16, August 25, 2016, effective 9/14/201640 CR 08, April 25, 2017, effective 5/15/201740 CR 12, June 25, 2017, effective 7/15/201740 CR 16, August 25, 2017, effective 9/14/201740 CR 23, December 10, 2017, effective 1/1/201841 CR 14, July 25, 2018, effective 8/14/201841 CR 20, October 25, 2018, effective 11/14/201842 CR 02, January 25, 2019, effective 12/18/201842 CR 02, January 25, 2019, effective 12/18/2018, expires 4/17/201942 CR 06, March 25, 2019, effective 4/14/201943 CR 04, February 25, 2020, effective 3/16/202043 CR 13, July 10, 2020, effective 6/2/202043 CR 17, September 10, 2020, effective 9/30/202044 CR 03, February 10, 2021, effective 3/2/202144 CR 07, April 10, 2021, effective 4/30/202144 CR 08, April 25, 2021, effective 5/15/202145 CR 01, January 10, 2022, effective 1/30/202245 CR 04, February 25, 2022, effective 3/17/202245 CR 05, March 10, 2022, effective 3/30/202246 CR 11, June 10, 2023, effective 5/2/202346 CR 09, May 10, 2023, effective 5/30/2023 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)