California: Part-Time Residency Using Employment

Taxpayer: Jonathan Doe
Address: 456 Asphalt Road, San Diego, CA 92112
Tax Year: 2008
Date: October 31, 2013


The issue is whether the appellant was a part-year resident of California for 2008 and if he had any California sourced income that would create a tax liability.


The Board of Equalization (BOE) has jurisdiction to hear this appeal. California law states that if the Franchise Tax Board (FTB) fails to mail a notice of action within six months of the filing of claim, the taxpayer may consider the claim disallowed and appeal to the BOE. (Rev. & Tax. Code, § 19331.)

Appellant filed his refund claim on November 5, 2012. (Exhibit A) As of the date of this appeal there has been no notice of action letter received from the FTB. The six month period expired on May 5, 2013, and the appellant now exercises his option to appeal to the Board of Equalization.

Statement of Facts

In January 2008, appellant changed his place of residence from California to Hawaii. This move was due to a change in employment. Although appellant retained his California apartment through the end of January 2008, he spent little time in the state during the month. Appellant shipped his vehicle to Hawaii on or around January 15, 2008. He also signed a 12-month lease agreement for an apartment on January 16, 2008 (Exhibit B). Appellant continued to reside in Hawaii for the rest of 2008 and has continued to live there ever since. Appellant filed an Individual Tax Return for 2008 as a resident of Hawaii (Exhibit C). There was an issue with one of the appellant's employers (Steve and Berrys), which incorrectly reported his wages and deducted California state income taxes. This employer subsequently corrected the problem, but because of this error appellant was taxed by the FTB as a California resident.

Appellant received a Notice of Proposed Assessment (NPA) from the FTB on July 7, 2011. The NPA proposed an additional tax of $1,333.05 for 2008. Appellant wrote a protest letter in an attempt to appeal, but sent the letter to the BOE instead of the FTB. The BOE received that letter and faxed it to the FTB. Appellant never received a response from the FTB. In October of 2011, he made a payment in full of $1,340.48 to the FTB.

Appellant now seeks a refund of the $1,340.48. Appellant is entitled to a refund because he was only a part year resident of California. Appellant resided in California for less than one month. Appellant was not a California resident in 2008 for tax purposes, so he should not have been assessed California taxes for that year, and therefore is entitled to a refund.

Taxpayer's Position

Appellant was a part-year resident with no California source income in 2008. California law defines a part-year resident as a taxpayer who meets both of the following conditions during the same taxable year: (1) is a resident of California during a portion of the taxable year; and (2) is a nonresident of California during a portion of the taxable year. (Rev. & Tax. Code, § 17015.5.)

California law defines "resident" to include every individual who is in California for other than a temporary or transitory purpose. (Rev. & Tax. Code, § 17014.) Courts have explained that residence is an individual's factual place of abode of some permanency and that it is more than a mere temporary sojourn. (Whittell v. Franchise Tax Bd. (1964) 231 Cal.App.2d 278, 284 [41 Cal.Rptr. 673, 676].) The court there went on to say that this requires both: (1) a physical presence in a particular locality; and (2) an intent to make it the individual's one permanent abode. (Ibid.) Intent is to be determined objectively by examining the facts and circumstances of a particular case. (See Appeals of Stephen D. Bragg, 2003-SBE-002, May 28, 2013.) Finally, California statute simply defines a nonresident as every individual other than a resident. (Rev. & Tax. Code, § 17015.)

Appellant was both a resident and nonresident of California in the first few weeks of January 2008. In December of 2007, appellant accepted a job that was to be performed in Hawaii. In preparation for this move he traveled to his new home in Hawaii during the second week of January to look for an apartment. His apartment search was successful and he signed a year-long lease on January 16, 2008 (Exhibit B). Additionally, appellant arranged to have his automobile shipped to Hawaii around that same time. Finally, appellant allowed the lease for his California apartment to lapse on February 1, 2008. Appellant continues to live in Hawaii. Additionally, appellant filed his state income taxes with Hawaii for 2008 (Exhibit C). These facts are strong objective factors that appellant intended to make Hawaii his one permanent abode during the first few weeks of 2008. This satisfied the intent prong of the Whittell test described above. The physical presence prong was satisfied the moment his plane landed in Hawaii to start his apartment search. These facts show that appellant became a resident of Hawaii and a nonresident of California on or before January 16, 2008.


Appellant was a part year California resident with no California source income. Evidence shows that the appellant physically left California with the intent to remain in another state indefinitely. Due to an erroneous withholding on the part of appellant's employer and a poor understanding of California tax law, appellant has paid taxes for which is he is not liable. Appellant now asks that the money paid to California be refunded to him in the amount of $1,340.48.

Date: October 31, 2013
Respectfully Submitted,

Carl Jones for Jonathan Doe
Student Attorney, Tax Appeals Assistance Program
USD Legal Clinics
5998 Alcala Park, Barcelona #305
San Diego, CA 92110-2492