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Atb 2012-1001 Commonwealth of Massachusetts COMMONWEALTH OF MASSACHUSETTS APPELLATE TAX BOARD CHARLES DEVENS, JR. v. COMMISSIONER OF REVENUE Docket No. C304976 Promulgated: October 9, 2012 This is an appeal filed under the formal procedure pursuant to G.L. c. 58A, § 7 and G.L. c. 62C, § 39 from the refusal of the Commissioner of Revenue (“Commissioner” or “appellee”) to abate personal income taxes, penalties, and interest assessed to Charles Devens, Jr. (“Mr. Devens” or “appellant”) for the tax years ending December 31, 2005 and December 31, 2006 (“tax years at issue”). Chairman Hammond heard this appeal. Commissioners Scharaffa, Egan, Rose, and Mulhern joined him in a decision for the appellant dated August 9, 2011, granting a full abatement for both of the tax years at issue. Chairman Hammond is joined by Commissioners Scharaffa, Rose, Mulhern, and Chmielinski in a revised decision for the appellant, granting an abatement for only the tax year ending December 31, 2006, which is issued simultaneously with these findings of fact and report. These findings of fact and report are made pursuant to requests by the appellant and the appellee under G.L. c. 58A, § 13 and 831 CMR 1.32. ATB 2012-1001 William E. Halmkin, Esq., Richard L. Jones, Esq. and David W. Hesford for the appellant. Bensen V. Solivan, Esq. and Celine E. Jackson, Esq. for the appellee. FINDINGS OF FACT AND REPORT Based upon an Agreed Statement of Facts as well as the testimony and exhibits offered into evidence at the hearing of this appeal, the Appellate Tax Board (“Board”) made the following findings of fact. On or about September 25, 2006, the appellant filed a Massachusetts Nonresident/Part-Year Resident Tax Return (“Form 1 NR/PY”) for the tax year ending December 31, 2005, filing as a Massachusetts resident from January 1, 2005 to October 2, 2005, and as a nonresident from October 3, 2005 to December 31, 2005. Testimony and personal calendars entered into the record established that Mr. Devens was present in Massachusetts for more than 183 days in 2005, and the Board so found. On or about July 19, 2007, the appellant filed a Form 1 NR/PY for the tax year ending December 31, 2006, indicating that he was a nonresident. Testimony and personal calendars entered into the record established that Mr. Devens was present in Massachusetts for 169 full and partial days in 2006, and the Board so found. ATB 2012-1002 By letter dated May 15, 2008, the Commissioner issued to the appellant a Notification of Audit for personal income tax for the tax years at issue. On October 25, 2008, the Commissioner issued a Notice of Intent to Assess, notifying the appellant of a deficiency of $185,702, plus interest for the tax year ending December 31, 2005, and $344,115, plus interest and penalties for the tax year ending December 31, 2006. On or about November 21, 2008, the appellant submitted a Form DR-1, Appeals Form to the Department of Revenue’s Office of Appeals (“Office of Appeals”). On September 25, 2009, the Office of Appeals issued a determination letter affirming the Commissioner’s conclusion that the appellant was domiciled in Massachusetts for the tax years at issue. By Notice of Assessment dated October 6, 2009, the Commissioner assessed additional taxes in the amount of $185,702, plus interest, for the tax year ending December 31, 2005, and $344,115, plus interest and penalties, for the tax year ending December 31, 2006. On November 23, 2009, the appellant timely filed an abatement application. The Commissioner denied the appellant’s abatement application by Notice of Abatement dated December 3, 2009. On December 16, 2009, the appellant seasonably filed a Petition Under Formal Procedure with the Board, requesting an abatement in the full amount of the taxes assessed, ATB 2012-1003 $529,817, plus interest and penalties. On the basis of the foregoing, the Board found and ruled that it had jurisdiction to hear and decide this appeal. The hearing of this appeal took place over three days and involved the testimony of six witnesses, all of whom testified for the appellant. In addition to the testimony of the appellant, the Board heard the testimony of his fiancée, Diana Squibb, and his friends Dennis Canada, Barbara Pompa, John Hall, and James Hughes. The issues in this appeal were whether the appellant changed his domicile from Massachusetts to Florida and, regardless of his place of domicile, whether the appellant was a resident of Massachusetts as defined by G.L. c. 62, § 1(f) for the tax year ending December 31, 2005. A. The Appellant’s Educational and Vocational History Mr. Devens was born and raised in Boston, Massachusetts. He graduated from Harvard College in 1959 and then served six months of active duty in the United States Marine Corps. Following his service, Mr. Devens returned to Boston and worked for the First National Bank of Boston. Mr. Devens then attended Harvard Business School, graduating with a Master’s in Business Administration. Upon completing graduate school, Mr. Devens worked as a real estate developer in Boston. He also worked briefly in ATB 2012-1004 Buffalo, New York and in Los Angeles, California. From 1990 to 1997, Mr. Devens worked for the Federal Deposit Insurance Company (“FDIC”) in Franklin, Massachusetts and Hartford, Connecticut. Mr. Devens left the FDIC in 1997 to work for Brookline Savings Bank in Brookline, Massachusetts, where he remained employed as Vice President until his retirement in 2005. B. The Appellant’s Personal and Family History In 1970, Mr. Devens married Sarah Willard (“Mrs. Devens”). Three children were born of that marriage, Charles Devens III, Samuel Devens, and Sarah Devens. The family resided at 89 Southern Avenue in Essex, Massachusetts (“Essex property”), which Mr. and Mrs. Devens had purchased in 1973. The Essex property was a two-story Colonial home which featured three bedrooms and two bathrooms. It was situated on a sprawling, 3.5-acre lot. Mr. and Mrs. Devens divorced in 1987, and Mrs. Devens sold her interest in the Essex property to Mr. Devens. Mrs. Devens then purchased a home in Ipswich, Massachusetts (“Ipswich property”). In an effort to help Mrs. Devens obtain a mortgage on the Ipswich property, Mr. Devens added his name to the deed. Mr. Devens testified that this arrangement was necessary because of his ex-wife’s lack of a credit history and that he never visited the Ipswich property except to pick up his sons for ATB 2012-1005 visitation.1 Following the divorce, Mr. Devens continued to live at the Essex property. The evidence revealed that Mr. Devens hailed from a family of accomplished athletes. His father, Charles Devens Sr., was a pitcher for the New York Yankees. Mr. Devens himself was formerly a champion handball player and, during the periods at issue, remained an avid tennis player and golfer. His daughter Sarah was a three-sport athlete at Dartmouth College and team captain of all of the teams on which she played, and his son Samuel likewise played collegiate lacrosse. In 1995, a tragedy unfolded that would change the course of Mr. Devens’ personal life. His daughter Sarah died in her bedroom at the Essex property. After Sarah’s death, Mr. Devens distanced himself from the Essex property, living elsewhere for periods of time, including with his friend, John Hall, and later, with the woman who would eventually become his fiancée, Diana Squibb. Mr. Devens began dating Ms. Squibb in 2001. He had been previously acquainted with her when she coached at the school attended by his children. Like Mr. Devens, Ms. Squibb was an athletic individual hailing from an athletic family. She was formerly a competitive figure skater and later judged figure 1 Mr. Devens’ name was removed from the deed for the Ipswich property subsequent to the tax years at issue. ATB 2012-1006 skating competitions nationally for 25 years, along with coaching and refereeing other youth sports. During the tax years at issue, Ms. Squibb no longer participated in figure skating, but she continued to engage in other athletic activities, such as golfing and tennis. Because Mr. Devens had been largely absent from the Essex property after Sarah’s death, it fell into a state of disrepair. In late 2001, Mr. Devens engaged a contractor to perform the repairs necessary at the Essex property, and at that time, he began living with Ms. Squibb at her apartment in Wenham, Massachusetts. The renovations were completed in 2002, for a total cost of over $100,000. Mr. Devens eventually moved back into the Essex property, along with Ms. Squibb. In addition to the Essex property, Mr. Devens owned a one- third interest in a home in Scarborough, Maine, which he inherited from his father. The other two-thirds interest belonged to his siblings, Robert, who lived in New York, and Edith, who lived in Massachusetts. Mr. Devens testified that he spent two to three weeks a year at this home. Mr. Devens also owned a one-half interest in a boat which he purchased in 1974 and which was registered in Massachusetts during the tax years at issue. The other one-half interest in the boat was owned by Mr. Devens’ friend, Heaton Robertson, who lived in South Hamilton, Massachusetts. Mr. Devens testified that he used the ATB 2012-1007 boat only once or twice a summer during the tax years at issue because it was becoming physically difficult for him to manage boating activities, and further, Ms. Squibb was not particularly interested in boating. In addition to his two sons, both of whom lived in Massachusetts during the tax years at issue, and his siblings, Mr.
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