Dear @MaryK4 ,
Thanks for your response.
I recognize the criteria which you cite from
https://tax.colorado.gov/individual-income-tax-filing-requirements
which states verbatim:
A Colorado resident is a person who has made a home in Colorado, or a person whose intention is to be a Colorado resident. The department will consider, among other things, Colorado voter registration, Colorado vehicle registration, Colorado driver license, school registration, property ownership and residence of spouse or children in determining intention to be a Colorado resident.
Their appears to be some tension with
https://tax.colorado.gov/sites/tax/files/01.2021_ITT_Part-Year_Residents_Nonresidents.pdf
which states in part:
Residency
In general, an individual is a Colorado resident if either:
- the individual is domiciled in Colorado; or
- the individual maintains a permanent place of abode in Colorado and spends, in aggregate, more than six months of the tax year in Colorado.
I have contacted the Colorado Department of Revenue taxpayer telephone support, and the person I spoke with shared your opinion. However I cannot cite that telephone support call (nor this Intuit forum) should a Colorado Department of Revenue officer decide that >6 month physical presence and Colorado property ownership trumps.
I have consulted the actual Tax Code itself,
https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=9997&fileName=1%20CCR%20201-2
and I don't have clarity. Per Rule 39-22-103(8)(a) (2)(d) the out-of-state home and *perhaps* Colorado home are domiciles. There will be periodic trips from Colorado to the out-of-state home of >30 years to visit and support a widowed parent.
Rule 39-22-103(8)(a) (1) (b) refers to a six month statutory residency rule.
However, Rule 39-22-103(8)(a) (2)(c) provides an expanded list of 18 "indicia of domicile", and the indices previously discussed plus additional indices that apply are overwhelmingly favor an out-of-state interpretation, the lone exception being "Length of time in a purported domicile."
Is it common practice for the Department of Revenue to give priority to the 18 "indicia of domicile" over >50% physical presence in a second home in Colorado?
Are you aware of any case law where this issue has been adjudicated in the courts?
If not a 50% threshold for physical presence, might there be some other threshold that is used in practice?
