THEA~~~ORNEY GENERAL
OFTEXAS

October 15, 1957

Hon. Robert S. Calvert OpinionNo. WW-277 Comptroller of PublicAccounts Capitol Station Re: Austin 11, Texas Legality of refunding inheritance taxes deposited ursuant to Article fl

388,V.C.S., if decedent is a nonDear Mr. Calvert: resident of Texas.

We quote the following excerpts from your letter requestingour opinion on the above-captionedmatter.

"Clara S. Kelly died on February 6, 1957, and an inheritance tax reportwas filedwith this Department on or about May 2, 1957, for her estate by Joseph C. Jackson, an accountant of Austin. The report states the decedentwas a resident of Travis Countyupon the date of her death. fiis reportwas sworn to by Eugene J. Kelly, son of Clara S. Kelly. d The value of the net taxable estate is $355, lg.33 consisting almost entirely of stocksand bonds located in a safety depositbox in the AmericanNational Bank of Austin. The only other property in which the decedenthad a taxable interestwas a life estate in a smallhouse and lot valued at $5,000.00 in Alhambra, California,and a bank account of $1,030.00 in The California Bank of Alhambra.
"Mr. Jacksonwas anxious to obtainwaivers of the inheritance tax lien on all the stocks and bonds at an early date, so a hurried report was made which reflected a tax due of $5,379.82. Since the reportwas hurriedlymade andwe had no opportunit tomake an early examination,we accepted the %5,379.82 and placed same in our departmental suspenseaccount as provided in Article 4388.Hon. Robert S. Calvert,page 2 (WW-277)

"The State of California is now asserting a tax on this entire estate claiming the decedentwas a resident of Californiaat the time of her death.
"Mr.E. H. Smartt,Austin Attorney,has written us a letter inwhich he reaches the conclusion that the decedentwas a resident of California and asks for a refund of the tax now in our suspenseaccount.
"On the facts as stated in this letter and thosegiven by Mr. Smart%,please advise this Department as to the domicile of this decedent. If you hold this decedentwas a resident of California,also advise if this Department can legally refund said tax."
In addition to the facts set forth in your letter, we quote the following facts from Mr. Smartt's letter.

"A shorthistory of Clara SabrinaKelly would probably be helpful in determining the issues in question. Mrs. Kelly was originally a resident of the State of Ohio; her husband died about the year 1938, and thereafter she traveled between Ohio and California. Mrs. Kelly had two daughters living in Ohio and a son,Eugene J. Kelly,who moved to Austin, Travis County, Texas, from Kansas about 1942. In about 1938 or 1939,Mrs. Kelly went to California and bought a littlehome in Alhambra, and in 1942, she deeded this home to her five grandchildrenretaining a life estate in herself. In 1942 shewent back to Ohio and stayed some time, and in 1943, she came to Austin to live with her son,Eugene J. Kelly. Except for the property located in Alhambra, California,her estate consisted entirely of stocks and bonds, all of which she had delivered to her son, Eugene J. Kelly, and gave him a power of attorney with full authority to manage and control all of said stocks and bonds.. I

- .-.

Hon. Robert S. Calvert,page 3 (W-277)

. .’

Mrs. Clara SabrinaKelly, by instn;uhe&'dated September 21, 1943, executed an elaboratetrust agreement In which she designatedher son, Eugene J. Kelly, as her trustee,with fullpower over her entire estate to manage and control the 88186for her benefit during her lifetime, and in this ‘GNst agreement she reafflrmedher will which had previously been made. In the latterpart of 1943, Mrs. Kelly went back to California, she being then past eighty-threeyears of age, and never leftAlhambra, California,until her death; afterher deathher body was taken to Ohio for burial. "By instrument dated May 11, 1949, Mrs. Clara Kelly revokedher will and stated that it was her full and deliberate Intentionnot to have any will In effect at the date of her death; so far as we have been able to ascertainthis instrument of revocation was the last legal instrument ever signed by her. II

. . . "Probate proceedingswere filed in Travis CounCy under Section 180 of the new Probate Code, for the purpose of having the court determine that no necessity existed for administration and also for the purpose of declaring the helrshfp of Clara SabrinaKelly. This action was taken solely for the purpose of providing a vehicle for the transfer, or sale,of the stocksand bonds which were carried in the name of Rugene J. Kelly, Trustee, for the estate of Clara S. Kelly. We Court found that no necessity existed fox. administrationand found also that the estate belonged to the two daughters in Ohio and the son in Texas, share and share alike. "Since the latterpart of 1943, all business transactions concerningthe stocks and bonds belonging to Mrs. Clara SabrinaKelly have taken place In Austin, Travis County, Texas, and such transactionshave beenhandled by her son,Hon. Robert S. Calvert,page 4 (WW-277) /

Eugene J. Kelly. The stocksand bonds
were kept **in** a safe deposit box at the AmericanNationalBank, In Austin, and all dividend8were payable to Eugene J. Kelly, TNStee. All Income tax returns were filed by the sonwith the Internal Revenue Department in Austin, Texas. /m ese income tax returns showedthe residence of the beneficiaryof the trust, Mrs. Kelly, as beingAustin,TexasifAll bills of Mrs. Clara SabrinaKelly were forwarded to Eugene J. Kelly, in Austin, Texas, and paymentmade through a bank account establishedandmaintained in the AmericanNational Rank in Austin.
"We have beenunable to find any written evidence of an Intention on the part of Mrs. Clara SabrinaKelly to return to Austin, Texas, and in talking with neighbors in Alhambra, California, we have beenunable to find any statement by her expressing such intention."
We have been furnishedwith the following instruments* of Cita~~lnApplicationto Probate Court; (2) Two Yc$veTrs

; 

### (3)Copy of Order of Probate Court; wo copies of Power of Attorney; (5)Copy of Trust Agreement; and 

### (6)Copy of Revocation of Will.

The application to the Probate Court states that the decedent died while in the State of California and at the time of her deathhad her resident in Travis County, Texas. The trust instrument embodied a will (subsequently revoked) in which the decedent recited that shewas a resident of the County of Los Angeles, State of California.

The Power of Attorney likewise recites that the decedentwas a resident of Alhambra, California. The Revocation of Wills executed at Alhambra, California, May 11, 1949, containsno recitation as to residence.

Article 

### 7117,Vernon's Civil Statutes, reads, in part,as follows:.

_ .-

Hon. Robert S. Calvert,page 

### 5 (WW-277)

"All property within the jurisdiction of this State, real or personal, corporate or incorporate,and any Interest therein,.

. . whether belonging to inhabitants of this State or to persona who are not lnhabitants.

. .which shallpass . . . by the laws or ,@g descent or distribution.

. . shallupon passing

. . . be subjectto a tax.

. . in accordancewith the following classification;provided,however, that the tax imposed by this Article in respect to personalproperty of non-residents (other than tangiblepropertyhaving an actual situs in this State) shallnot be payable: (1) if the grantor or donor at the time of his death was a resident of a State or territory of the United Stateswhich, at the time of his death, did not Impose a transfer or inheritance tax of any character fn respect of personalproperty of residents of this State (otherthan tangiblepersonal propertyhaving an actual situs in said State); or (2) if the laws of the State or territory of the residence of the grantor or donor at the time of his death, contained a reciprocalprovfsionunder which nonresidentswere exempted from transfer or inheritance taxes of every character in respect to personalproperty (otherthan tangiblepersonalpropertyhaving an actual situs therein)provided the State or territory of residenoe of s-uch non-residents allowed a similar exemption to residents of the StateOP terrltorJ of residence of such a grantor or donor.'" Stock and bonds are intangiblepersonal property. Since Californiadoes not tax the Intangibleproperty of non-residentdecedentswho were residents of a State or Territory of the United States,no taxes would be due the State of Texas in this case if Mrs. Kelly was domiciled in California at the time of her death.

me followingdefinitionof 'domicile" is given In 28 C.J.S. 1, Domicile, Sec. 1:

"Domicile is the legal conception of home, and the relation created by law between an individual and a particularRon. Robert S. Calvert, Page 6(w-277)

locality or country. The term has been variously define& the definitionsagreeing substantiallyon the elements of a true,Sixedhome, habitation or abode, where a person intends to remain permanently or IndefInItely,and to which, whenever absent,he intends ,to return." The above definitionwas Stonev. Phillips, 171 S.W. 2d 156 uoted by the Court in Tex. Civ.App. 1943, aSSrd'9 2 Tex. 216, 176 S.W. 2d% 1944). 322

.- The acquisition of a domicile of choice is entirely a question of residence and intention. In other words, to have effected a change of domicile from Ohio to Californiathere must have been an actual residence in California and an intention on the part ,oSMrs. Kelly to remain there or to mske it he' home. It is not necessary that the Intention to acquire a new domicile should exist at the time of initial residence,but such intentionmay be formed thereafter. Tne foregoinggeneralprinciples are supportedby the authorities contained in 28 C.J.6. 11-14, Domicile, Sec. 9.

Assuming that the Sacts which have been furnished you are true, it appears to us, primarily from the fact that Mrs. Kelly was in Texas, living in the home of her son, for less than a year, that Mrs. Kelly was a resident of California;hoPever, the Sac,ts are sufficientlyconflicting in this case that we cannot say as amatter of law that Mrs. Kelly was domiciled in CaliFornia. This officedoes not pass upon questions of fact.

IS you shoulc1

determin? that Mrs. Kelly was domiciled in California,we have o~nciuG!o that you would be authorized to ref+unci

the money in view of the provisions of Article 4308,V.C.S., which xsads fn part as follows:

"The State Treasurer shall receive daily Srom the head of each Department, each of whom is speciall;r chargedwith the duty of making sane daily, a detailed list of all persons remittingmoney the status of which is undetermined or which is awaiting the time when it can finally b,a taken into the Treasury, togetJh..er

vkth the actual rexittancrwhich the Treasurer shall cash anti place in his vaults or 9n legally authorizedd,ePository banks,if the necessity arises.

. . 0A deposit receipt shall ‘beissued by the ComPtroller forthe-, .

. . .-

Hon. Robert S. Calvert, sage7(m-8’7)

daily total of such remittance from each Department; and the cashier of the Treasurer's Department shallkeep a cash book, to be called lsuspensecash bcok,' in which to enter these deposit receipts, and any others issued for cash received for which no depositwarrants can be issued, or when their issuance is delayed. As soon as the status of money zoplaced with the Treasurer on a deposit receipt is determined, it shall be transferred from the suspense account by placing the portion of it belongina to the State in the treasury by the issuance of a deposit warrant,and-the part found not to,belong to the State shallbe refunded." (&phasis supplied)

CONCLUSION Since this office does not pass upon questions of fact, and since in this case the submitted factspertaining to the decedent's domicile are conflicting,we are unable to adviseyou as to the domicile of the decedent. Shouldyou determine that the decedentwas domiciled in California,you would be authorizedunder Article 4388, V.C.S., to refund the inheritance taxesheretofore paid. Very truly yours

MMP,'fb APPROVED: WILL WIisON Attorney General By: */
Assistant

OPINION COMMITTEE George P. Blackburn, Chairman
W. V. Geppert
B. H. Timmins
John B. Webster
REVIEWED FOR THE ATTORNEY GENERAL Ey: James N. Ludlwn