Citizens Bank & Trust Co. v. Glaser

357 A.2d 753, 70 N.J. 72, 1976 N.J. LEXIS 183

• Court: Supreme Court of New Jersey
• Decided: April 8, 1976
• Status: Published

Opinions

The opinion of the Court was delivered by

Conford, P. J. A. D.,

Temporarily Assigned. This appeal presents the question of the correctness of the determination by the respondent, affirmed by the Appellate Division, that Inez Duff Bishop died domiciled in New Jersey, thereby subjecting her intangible personal property to the New Jersey Transfer Inheritance Tax. Appellants contend domicile at death was in Virginia.

Mrs. Bishop, a widow, died April 13, 1966. In December 1966 the executors of the estate filed an inheritance tax return in New Jersey and paid a tax of about $100,000 on an estate of approximately $1,750,000. About $13,000 was refunded. Subsequently the executors protested the payment, supporting their position with affidavits and depositions to sustain the claim of Virginia domicile. The protest was rejected by the tax bureau December 4, 1972. An appeal by the estate to the Appellate Division was stayed in order to allow reconsideration and the making of adequate findings of fact by the bureau conformable with our recommendations in Lyon v. Glaser, 60 N. J. 259, 273-276 (1972).

A hearing was thereafter held before Robert R. Ross, a hearing officer for the bureau. The hearing was primarily on documents and depositions, with little oral testimony. In a thoroughly considered opinion fully analyzing the material facts and the law the hearing officer arrived at the conclusion that Mrs. Bishop had changed her domicile from New Jersey to Virginia after 1933 and that the applicable estate was therefore not taxable here.

The respondent Director of the Division of Taxation rejected the hearing officer’s findings and conclusions and found decedent to have died domiciled in New Jersey. He relied solely on the following facts: (a) she voted in New Jersey from time to time between 1943 and 1964; (b) she filed her federal tax returns giving New Jersey as her residence; (c) she never paid Virginia state income taxes.

The Appellate Division affirmed in an opinion concluding there was “ample evidence in the record to justify the Director’s determination * * The court was “loath” to find, as did the hearing officer, that a woman like Mrs. Bishop would continue indicia of New Jersey residence (voting and paying federal taxes from New Jersey) just to avoid payment of the Virginia income tax.

Since the only administrative appraisal of the material facts in a quasi-judicial manner in the Division of Taxation (see Lyon v. Glaser, supra, 60 N. J. at 273) is that set forth in the hearing officer’s report, and as we regard it as an accurate reflection of most of the material proofs, we set forth the factual recitals of that document.

The salient facts in this case are not in dispute with respect to the submitted evidence of the material events in the life of the decedent. The following sequence and pattern of germane activity is narrated as being fairly drawn from the evidence presented.

Inez Duff Bishop was born Inez Duff in the State of Virginia in 1875. In 1917 when she was in her early forties, Miss Duff left Virginia to attend nursing school in New York City. In the same year she met and married Arthur Bishop, a man of extensive wealth, and moved with him into his home in New Brunswick, New Jersey. Mrs. Bishop and her husband also owned and maintained a summer home in Beach Haven, New Jersey. With these two residences in operation, the couple obviously resided and were domiciled in the State of New Jersey from the time of her marriage until Arthur Bishop died in 1933. He was buried in New Brunswick. As herein before indicated, Mr. Bishop left his widow a considerable dollar amount of assets.

The New Brunswick home that the decedent and her husband had occupied apparently reverted to Mr. Bishop’s first wife upon his demise. To fulfill what she considered was her husband’s desire, Inez Duff Bishop subsequently purchased the house from her deceased husband’s first wife and donated it to the Elks, one of the deceased Mr. Bishop’s favorite lifetime interests.. Mrs. Bishop sold the other home that she and her husband had formerly occupied in Beach Haven, New Jersey but contemporaneously apparently built another home in Beach Haven, New Jersey a few doors away from their former home. This newly built Beach Haven home was a two story residence with central heating and other then modern facilities.

Inez Duff Bishop continued to spend a few months of the summer season annually in Beach Haven, New Jersey until a year or possibly two before her death when she had apparently become too ill to travel from Virginia to New Jersey. In 1933 Mrs. Bishop had purchased a home in Charlottesville, Virginia where she appears to have spent at least sixty percent of her time annually. However, in 1943 Inez Duff Bishop had registered to vote in New Jersey and she last voted in New Jersey, by absentee ballot, two years before her death. Mrs. Bishop, after her husband’s death, seems to have placed her financial affairs in the trust of her brother, Ernest Duff, who resided in Charlottesville, Virginia. It is conceded that she maintained a residence (at least in the lay sense) in Charlottesville, Virginia until her death. Her brother took over her business affairs and had legal power of attorney over her affairs for several years prior to her death.

There is some evidence that Mrs. Bishop was a somewhat strong willed, active person when she was physically healthy and that she did play some part in the decision making processes. Mr. Duff, the brother, filed the decedent’s income tax returns as attorney-in-fact. Her federal income tax returns were filed with a listing of the Beach Haven, New Jersey home as her address. Albeit, the State of Virginia during the years involved imposed an income tax on Virginia domiciliaries, no Virginia income tax returns were ever filed by the decedent. The evidence reveals that on one occasion Mrs. Bishop’s accountant prepared the federal income tax return 1040 listing the Charlottesville, Virginia address as the legal residence. Mr. Duff rejected these returns, refused to execute them and ordered the accountant to redraft the returns with a listing of the Beach Haven, New Jersey address.

* The interesting rationale behind this event and the attitude established can be found in the deposition of Emma Ruth Duff, the wife of Ernest Duff (now deceased), sister-in-law of the decedent. On Page 7, the following sequence appears:

Q Is Beach Haven a summer type seaside resort?

A Xes, it was entirely.

Q And what was Mrs. Bishop’s purpose in coming here?

A For a summer home.

Q Why didn’t she stay in Charlottesville?

A Am I supposed to tell the truth?

Q Yes. Why didn’t she stay in Charlottesville in the summer?

A Because she wanted to evade the state income tax.

Q Why did she pick Beach Haven?

A Well, she knew through her husband that there was no state income tax in New Jersey.

There is overwhelming evidence that when physically able Mrs. Bishop was active in Charlottesville affairs and obviously had most of her financial dealings and social connections in that City, as well as, favoring that area with her charitable inclinations. It is indicated that Mrs. Bishop spent at least the extended spring and fall season of every year in Charlottesville, Virginia, a few summer months in Beach Haven, New Jersey and then also found time to spend the cold months of the winter at a home she had acquired in Florida. This latter home was disposed of a few years prior to her demise.

Considerable testimony was presented with respect to the character of the furnishings in the two residences with an attempt made by the estate to indicate a sparce, “ratty” type of furnishing for the Beach Haven home and a somewhat superior character of the furnishings in the Charlottesville home. There is an indication that Mrs. Bishop was not furniture conscious and that her furnishings generally were far less desirable than what her financial status would have allowed in all three of her homes. There seems to be very little doubt as to Mrs. Bishop’s concentration of her financial interests in the Charlottesville, Virginia area. She invested heavily in a Charlottesville Bank, the Citizens Bank & Trust Company. At the time of her death she was the largest stockholder in this Bank with an investment valued at about $270,000. There seems to be very little question that she relied heavily on her brother who lived next door in Charlottesville. She appeared to have given Ernest R. Duff almost complete control of her finances.

An objective analysis of the presented facts which bear on the issue of domicile leads one to the proposition that after her husband’s death, Inez Duff Bishop shifted her financial/social headquarters and daily living center to- the Charlottesville, Virginia area from which she had originally come. At the same time she, no doubt with the extreme pressure of her brother so dictating, strove to put herself in an appearance position of not abandoning her New Jersey domicile. There can be no question that up until the time her husband died in 1933, Mrs. Bishop was domiciled in the State of New Jersey.

* * * * * * * is

Inez Duff Bishop assumed a home in Virginia and apparently headquartered her life in Virginia but had a mental reservation for tax purposes, to retain her New Jersey domicile. The controlling facts seem to settle in the Lyon mold, conceding that unlike the Lyon situation, where the decedent made no attempt to retain her New Jersey residence and domicile, Mrs. Bishop, though it he for tax motives and upon the advice and direction of her brother, endeavored in every window dressing manner possible to lift herself up by her own bootstraps legally, in the attempted retention of New Jersey, as her legal domicile. The conclusion is inescapable that this was done primarily to evade Virginia State Income Tax and it is conceivable there may have been other tax avoidance motives involved at the time.

* * * The representatives of the estate did come forward with convincing evidence that Mrs. Bishop acquired a home in Charlottesville, Virginia, renewed former contacts in that area and began conducting the preponderance of her life activities from Charlottesville, Virginia and if one were to weigh the issue of domicile, based on actual time spent in a given state with respect to day to day living activities, there appears to be very little to dispute a conclusion that time spent arithmetically calculated, would clearly demonstrate that most of her time in her later years was spent in the Charlottesville area and in that home. Her will beneficiaries were mainly in that locale. The overwhelming quantum of hub facts in her last 38 years of life appear to be in that Virginia area.

The foregoing findings concerning the tax avoidance factor gain added illumination from the testimony on depositions of the Charlottesville accountant who prepared decedent’s federal tax returns from 1939 on (in 1934 and 1935 the returns gave a Charlottesville address). He never met Mrs. Bishop, having been engaged by Mr. Duff. Although he felt the returns should be filed under the Charlottesville address, he specified the Beach Haven address on the instructions of Mr. Duff who told him the purpose was to avoid Virginia income taxes. The accountant believed Mrs. Bishop should file a Virginia state income tax return and actually prepared one on one occasion, but Mr. Duff refused to permit it to be filed.*

A preliminary procedural question requires attention in view of our decision in Lyon v. Glaser, supra. We there held that where the tax bureau in the Division of Taxation follows the theretofore traditional method in the bureau of determining a contested question of domicile by a mere review of documents and affidavits, without a formal hearing and with a conclusional determination,' judicial review thereof in the Appellate Division must be by a reconsideration of the facts de novo rather than by the “substantial evidence” rule ordinarily applicable in review of determinations of administrative agencies. (60 N. J. at 274 — 275).

In the present case the orginal bureau determination of taxability in New Jersey was made prior to the decision in Lyon, supra. Thereafter, as noted above, a hearing was arranged before a hearing officer. A hearing in accordance with the Lyon prescription, i. e., with substantial oral proofs, cross-examination, etc. was not conducted, but the determination by the hearer was not, as is evident from the quoted excerpts, merely conclusional, but fully analytical, and attended by findings as to basic or operative facts as well as ultimate or conclusional ones. It thus appears that the Lyon prerequisites for employment of the substantial evidence rule in the reviewing court were only partly, not fully complied with here. The determination on review by the Appellate Division does not advert to the Lyon rule, but it is evident that the court, in effect, applied the substantial evidence rule, not that for a de novo independent fact evaluation.

We resolve the dilemma thus presented by our conviction that the determination of taxability in New Jersey must be set aside whichever the appropriate rule of judicial review. We do not find substantial credible evidence in the record as a whole to support a finding that the decedent died domiciled in New Jersey. A fortiori, our independent evaluation of the facts leads to the conclusion of Virginia domicile at death.

The controlling rule was restated in the Lyon case (60 N. J. at 264):

Domicil is very much a matter of the mind — of intention. One may be acquired, or changed to a new one, when there is a concurrence of certain elements; i. e., an actual and physical taking up of an abode in a particular State, accompanied by an intention to make his home there permanently or at least indefinitely, and to abandon his old domicil.

Where there are multiple residences, as here, domicile is that place which the subject regards as his true and permanent home. In re Dorrance, 115 N. J. Eq. 268, 274-275 (Prerog. Ct. 1934), aff’d 13 N. J. Misc. 168, 176 A. 902 (Sup. Ct. 1935), aff’d 116 N. J. L. 362 (E. & A. 1936); cert. den. 298 U. S. 678, 56 S. Ct. 949, 80 L. Ed. 1399 (1936), reh. den. 298 U. S. 692, 56 8. Ct. 957, 80 L. Ed. 1410 (1936). An authoritative definition of a “home” for this purpose is that set forth in Restatement, 2d, Conflict of Laws (1971), § 12:

Home is the place where a person dwells and which is the center of his domestic, social and civil life.

See also O’Hara v. Glaser, 60 N. J. 239, 248 (1972).

While it is the burden of the State to show tax-ability of the estate in New Jersey by a preponderance of the evidence, Lyon v. Glaser, supra (60 N. J. at 277), yet the establishment of decedent’s initial domicile in New Jersey (New Brunswick) created a procedural presumption of domicile in New Jersey and placed the burden upon the estate of coming forward with evidence to show an intention to acquire a new domicile in Virginia. Id. at 277. If prima facie proof to that effect was presented the ultimate burden of persuasion on the issue continued with the party asserting that domicile remained at the original place — here the respondent. Id. at 277-278.

The evidence here clearly establishes a prima facie case of removal of domicile from New Jersey to Virginia after the death of decedent’s husband. The recital of the proofs in the report of the hearing officer, amply justified by the evidence, is strongly persuasive that Charlottesville became after 1933 “the center of [decedent’s] domestic, social and civil life” and continued as such until her death. The Beach Haven residence had been only a summer home (in an ocean resort community) when decedent was married and lived in New Brunswick, and it remained such after her husband died and she moved to Virginia. The State’s case for refutation of the prima facie showing made by the estate rests on the bare facts of voting in and paying federal income taxes from the New Jersey address. But there is direct and cogent proof supporting the inference that these acts were deliberate tactics to lay a basis for avoidance of the Virginia state income tax. The hearing officer so found, and the respondent did not overrule that express finding.

We may observe, moreover, that even if the tax motive thus indicated were not supportable, the overwhelming proportion of the indicia as to what the decedent regarded as her real, principal and permanent home after 1933 as well as the central fulcrum of her life must here be found to converge in and around the Charlottesville locale. There she lived most of the time; there were all her relatives and friends; there were her physician, her lawyer and her brother, who was also her closest relative and business ad-visor; there was her principal investment and commercial interest (the bank); there were her main place of worship, objects of charitable beneficence and her community interests; and there she died and was buried nearby, proclaiming herself in her 1963 will as “now of Charlottesville.”

The only tenable holding on this record is that Mrs. Bishop died domiciled in Virginia, not New Jersejc This determination renders it unnecessary to pass upon appellants’ alternative contention that since a Virginia court of record has declared decedent a domiciliary of Virginia, causing the estate to be subject to taxation in that state, imposition of a New Jersey tax on all the intangible personal property assets of the estate, most of which are not situate here, would constitute a denial of due process.

The judgment of the Appellate Division is reversed and the tax on intangible personal property is set aside.

See the footnote on page 79, infra.

The hearing officer apparently confused this incident with the one related in his findings concerning the preparation of a federal return with a Virginia address which Mr. Duff supposedly refused to sign. The accountant’s deposition does not indicate such an episode. The fact-findings by the hearing officer are otherwise accurate.