(1) (a) An individual is considered to have domicile in this state if: (i) except as provided in Subsection (1)(b), a dependent with respect to whom the individual or the individual's spouse claims a personal exemption or a tax credit under Section 24, Internal Revenue Code, on the individual's or individual's spouse's federal individual income tax return is enrolled in a public kindergarten, public elementary school, or public secondary school in this state; (ii) the individual or the individual's spouse is a resident student in accordance with Section 53H-11-202 who is enrolled in an institution of higher education listed in Section 53H-1-102 in this state; or (iii) the individual or the individual's spouse, in that taxable year: (A) votes in this state in a regular general election, municipal general election, primary election, or special election; (B) has not registered to vote in another state; and (C) has not voted in another state that does not require voter registration. (b) The determination of whether an individual is considered to have domicile in this state may not be determined in accordance with Subsection (1)(a)(i) if the individual: (i) is the noncustodial parent of a dependent: (A) with respect to whom the individual claims a personal exemption or a tax credit under Section 24, Internal Revenue Code, on the individual's federal individual income tax return; and (B) who is enrolled in a public kindergarten, public elementary school, or public secondary school in this state; and (ii) (A) is divorced from the custodial parent of the dependent described in Subsection (1)(b)(i); or (B) was never married to the custodial parent of the dependent described in Subsection (1)(b) (i). (2) (a) Subject to Subsection (2)(b), if the requirements of Subsection (1) are not met for an individual to be considered to have domicile in this state, the individual is considered to have domicile in this state if: (i) the individual or the individual's spouse has a permanent home in this state to which the individual or the individual's spouse intends to return after being absent; and (ii) the individual or the individual's spouse has voluntarily fixed the individual's or the individual's spouse's habitation in this state, not for a special or temporary purpose, but with the intent of making a permanent home. (b) The determination of whether an individual is considered to have domicile in this state under this Subsection (2) shall be based on the preponderance of the evidence, taking into consideration the totality of only the following facts and circumstances: (i) whether the individual or the individual's spouse has a driver license in this state; (ii) whether the individual or the individual's spouse receives a residential exemption in accordance with Chapter 2, Property Tax Act, for that individual's or individual's spouse's primary residence; (iii) whether a dependent with respect to whom the individual or the individual's spouse claims a personal exemption or a tax credit under Section 24, Internal Revenue Code, on the individual's or individual's spouse's federal individual income tax return is a resident student in accordance with Section 53H-11-202 who is enrolled in an institution of higher education listed in Section 53H-1-102 in this state; (iv) the nature and quality of the living accommodations that the individual or the individual's spouse has in this state as compared to another state; (v) the presence in this state of a spouse or dependent with respect to whom the individual or the individual's spouse claims a personal exemption or a tax credit under Section 24, Internal Revenue Code, on the individual's or individual's spouse's federal individual income tax return; (vi) the physical location in which earned income as defined in Section 32(c)(2), Internal Revenue Code, is earned by the individual or the individual's spouse; (vii) the state of registration of a vehicle as defined in Section 59-12-102 owned or leased by the individual or the individual's spouse; (viii) whether the individual or the individual's spouse is a member of a church, a club, or another similar organization in this state; (ix) whether the individual or the individual's spouse lists an address in this state on mail, a telephone listing, a listing in an official government publication, other correspondence, or another similar item; (x) whether the individual or the individual's spouse lists an address in this state on a state or federal tax return; (xi) whether the individual or the individual's spouse asserts residency in this state for purposes of filing an individual income tax return under this chapter, including asserting that the individual or the individual's spouse is a part-year resident of this state for the portion of the taxable year for which the individual or the individual's spouse is a resident of this state; (xii) whether the individual or the individual's spouse asserts residency in this state on a document, other than an individual income tax return filed under this chapter, filed with or provided to a court or other governmental entity; (xiii) the failure of an individual or the individual's spouse to obtain a permit or license normally required of a resident of the state for which the individual or the individual's spouse asserts to have domicile; (xiv) whether the individual is an individual described in Subsection (1)(b); (xv) whether the individual: (A) maintains a place of abode in this state; and (B) spends in the aggregate 183 or more days of the taxable year in this state; or (xvi) whether the individual or the individual's spouse: (A) did not vote in this state in a regular general election, municipal general election, primary election, or special election during the taxable year, but voted in the state in a general election, municipal general election, primary election, or special election during any of the three taxable years prior to that taxable year; and (B) has not registered to vote in another state during a taxable year described in Subsection (2)(b)(xvi)(A). (3) Notwithstanding Subsection (2), for individuals who are spouses for purposes of this section and one of the spouses has domicile under this section, the other spouse is not considered to have domicile in this state under Subsection (2) if one of the spouses establishes by a preponderance of the evidence that, during the taxable year and for three taxable years prior to that taxable year, that other spouse: (a) is not an owner of property in this state; (b) has not spent in the aggregate more than 30 days of the taxable year in this state; (c) has not received earned income as defined in Section 32(c)(2), Internal Revenue Code, in this state; (d) has not voted in this state in a regular general election, municipal general election, primary election, or special election; and (e) does not have a driver license in this state. (4) (a) For purposes of this section, an individual is not considered to have a spouse if: (i) the individual is legally separated or divorced from the spouse; or (ii) the individual and the individual's spouse claim married filing separately filing status for purposes of filing a federal individual income tax return for the taxable year. (b) Except as provided in Subsection (4)(a)(ii), for purposes of this section, an individual's filing status on a federal individual income tax return or a return filed under this chapter may not be considered in determining whether the individual has a spouse. (5) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, and for purposes of Subsections (2)(b)(xv) and (3)(b), the commission may by rule define what constitutes spending a day of the taxable year in this state.
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