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Thomas and Pamela Houghton, husband and 

wife, appellants, v. Nebraska Department 

of Revenue, an agency of the State 

of Nebraska, and Tony Fulton, 

Tax Commissioner, appellees.

___ N.W.2d ___

Filed January 15, 2021. No. S-20-176.

1. Administrative Law: Judgments: Appeal and Error. In an appeal 

under the Administrative Procedure Act, an appellate court may reverse, 

vacate, or modify the judgment of the district court for errors appearing 

on the record.

2. ____: ____: ____. When reviewing an order of a district court under 

the Administrative Procedure Act for errors appearing on the record, the 

inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.

3. Domicile: Intent. To acquire a domicile by choice, there must be both 

(1) residence through bodily presence in the new locality and (2) an 

intention to remain there.

4. Domicile. All of the surrounding circumstances and the conduct 

of the person must be taken into consideration to determine his or 

her domicile.

5. Domicile: Intent. To change domicile, there must be an intention to 

abandon the old domicile.

6. ____: ____. To establish a new domicile, the present intention must be 

to remain indefinitely at a location or site or to make a location or site 

the person’s permanent or fixed home.

7. Judgments: Appeal and Error. In conducting a review for errors 

appearing on the record, an appellate court will not substitute its factual 

findings for those of the district court where competent evidence supports those findings.

8. Intent: Proof: Circumstantial Evidence. Intent is a question of fact, 

which may be determined by circumstantial evidence.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/22/2021 12:08 AM CST
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9. Domicile. Where a person’s move is to a foreign country, the nature 

of the visa under which admission is granted is an essential inquiry in 

determining the person’s domicile.

10. Domicile: Intent. An individual’s subjective intent is not dispositive of 

domicile if a limited visa of the foreign country is intended to restrict 

his or her intent, for an intent inconsistent with law is unrealistic and 

insufficient to establish a domicile.

Appeal from the District Court for Lancaster County: 

Andrew R. Jacobsen, Judge. Affirmed.

David S. Houghton, of Houghton, Bradford & Whitted, P.C., 

L.L.O., for appellants.

Douglas J. Peterson, Attorney General, and L. Jay Bartel 

for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

This Administrative Procedure Act appeal centers on whether 

income taxpayers abandoned their domicile in Nebraska and 

acquired a domicile in the United Kingdom (U.K.). The Tax 

Commissioner and the district court concluded that the taxpayers did not meet their burden of proof. Although the move to 

a foreign country presents an additional, unusual circumstance, 

our standard of review drives the outcome. Because competent 

evidence supported the district court’s factual findings, we 

affirm its judgment.

BACKGROUND

Nebraska Department of 

Revenue Proceedings

In February 2016, the Department of Revenue issued to 

Thomas and Pamela Houghton a notice of proposed deficiency 

determination for individual income tax for tax years 2012 to 
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2014. Together, the notices identified the total amount of taxes, 

interest, and penalties due as $73,477.61.

The Houghtons protested the income tax deficiency determination and requested a redetermination that no money was due. 

They claimed that the U.K. was their domicile.

The Houghtons sought to challenge the constitutionality 

and validity of a Nebraska regulation. The regulation stated, 

in relevant part, that “[a]ny citizen residing outside the United 

States (U.S.) whose last domicile within the U.S. was within 

Nebraska will continue to be a Nebraska resident until the 

person . . . establishes residence as a permanent resident alien 

in a foreign country . . . .” 1 The Tax Commissioner declined 

to determine the validity of the regulation or to apply it. The 

district court likewise did not apply the regulation. During oral 

argument to this court, counsel for the Department of Revenue 

asserted that the regulation should not be relied upon here, and 

we have not done so.

In 2018, a hearing was held on the Houghtons’ petition 

for redetermination of individual income tax. The evidence 

consisted of testimony by both of the Houghtons and an audit 

supervisor of the Department of Revenue, and documents submitted by the parties. The evidence established that Thomas 

has been in the “payments processing business” since 1987. He 

worked for ACI Worldwide until 1997 and again from October 

2000 to December 2011. The Houghtons lived in Nebraska 

for most of Thomas’ employment with ACI Worldwide. But 

on two occasions—from January 1990 to March 1992 and 

from December 2000 to October 2004—they lived in the U.K. 

During the latter stay, the Houghtons “were headed towards 

citizenship when the company requested that [Thomas] move 

back to the U.S.”

Between 2008 and 2011, while residing in Nebraska, the 

Houghtons discussed living in the U.K. They decided that 

if they moved back to the U.K. for a third time, they would 

1 316 Neb. Admin. Code, ch. 22, § 001.03A (2009).
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stay and become citizens. There is no dispute that the 

Houghtons were domiciled in Nebraska prior to moving to the 

U.K. in 2011.

In October 2011, Thomas accepted employment with a U.K. 

company. The position was permanent rather than an assignment. They moved to the U.K. in December. Pamela testified 

that although it was their third time living in the U.K., “[t]his 

time it was not as an expat, it was a legitimate job [Thomas] 

was taking for long term.”

In 2012, Thomas received compensation from ACI 

Worldwide related to his employment in Nebraska through 

December 2011. The Houghtons, who have continued to 

employ an accountant in Nebraska to prepare their federal 

and state income tax returns, filed a “Special Capital Gains/

Extraordinary Dividend Election and Computation” form with 

their 2012 Nebraska tax return. On that form, Thomas signed 

beneath the following statement: “I hereby elect to receive the 

special capital gains/extraordinary dividend treatment provided 

under Neb. Rev. Stat. § 77-2715.09, and declare under penalties of perjury that to the best of my knowledge and belief, the 

capital stock described above qualifies for the special capital 

gains/extraordinary dividend election.” That statute allows an 

election by a “resident individual.” 2

The Nebraska income tax returns that the Houghtons filed 

for tax years 2012 to 2014 listed their address in the U.K. They 

computed Nebraska tax using the schedule for nonresidents and 

partial-year residents. The Houghtons were taxed as residents 

of the U.K. during the tax years at issue. They used a U.K. 

accountant in connection with their U.K. income tax.

When the Houghtons left Nebraska in December 2011, they 

retained ownership of two properties in Nebraska. One, purchased in 2004, served as their primary residence until they 

moved to the U.K. The other, purchased in June 2011, was 

purchased with the intent that it be an investment property. 

2 See Neb. Rev. Stat. § 77-2715.09(1) (Reissue 2018).
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Both were listed as rental property after the Houghtons moved 

to the U.K. Thomas explained that at the time of the 2011 purchase, the market was down, which made it a good time to buy 

but not a good time to sell. The Houghtons sold both Nebraska 

properties in 2017. Thomas testified that the markets made it 

“a good time to sell.” The Houghtons also owned real estate in 

Georgia and California.

The Houghtons did not own property in the U.K. Thomas 

characterized purchasing property in the U.K. as “complicated.” He elaborated that a purchase of property is generally 

on a 99-year lease—which is not attractive—and that freeholds are difficult to find. Further, moving capital from the 

United States into the U.K. is considered a “taxing event” by 

the U.K.

In March 2011, Thomas sought work permission from the 

U.K., including a dependency endorsement for Pamela. The 

Houghtons obtained a “Tier 2” general visa with a validity date 

from July 2011 to August 2014. In April 2014, the Houghtons 

received an extension of the Tier 2 general visa with an expiration date of August 2017. In May 2016, the Houghtons applied 

for indefinite leave to remain (ILR), which was granted in 

June. Thomas testified that a person has to live in the U.K. for 

5 years before seeking ILR. Once a person obtains ILR status, 

he or she can live in the U.K. for life. After ILR is granted, a 

person must wait 12 months before applying to become a U.K. 

citizen. The Houghtons complied, and they were sworn in as 

British citizens in February 2018.

An individual seeking to become a U.K. citizen is allowed 

to be out of the country for 450 days during a 5-year window. The Houghtons began keeping a log of all of their travel 

“immediately from the time that [they] went over there with 

the intent of becoming naturalized citizens.” The record contains a “schedule of absences,” which Thomas testified is 

part of the submission for ILR and for naturalization. The 

document showed each of the Houghtons’ absences from the 

U.K. from 2011 to May 2016, along with the reason for travel 
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and the number of days involved for each event. The schedule 

of absences showed that the Houghtons returned to Nebraska 

a number of times during 2012 through 2014, spending as 

many as 40 days in 2012 and as few as 14 days in 2014. The 

visits were typically family related.

During the relevant tax years, Thomas possessed driver’s 

licenses in Nebraska, California, and the U.K. His Nebraska 

license expired in 2015, and he did not take any action to 

renew it. The Houghtons “used the Overseas Voting Act” 

to vote in the 2012 federal presidential election. When they 

moved from Nebraska, they resigned from their country club 

and sold their only vehicle. In the U.K., the Houghtons joined 

a country club and purchased two vehicles. They took all items 

of sentimental value with them to the U.K. They do not have 

any Nebraska bank or financial accounts, but they have checking and savings accounts in the U.K.

Tax Commissioner’s 

Determination

The Tax Commissioner determined that the Houghtons 

failed to sustain their burden of proof. He relied on Nebraska 

case law concerning domicile. The Tax Commissioner stated 

that the Houghtons’ “right to remain within the [U.K.] had 

an expiration date” and that because they “did not have the 

right to remain in [the U.K.] beyond the expiration of their 

restricted work visas[,] there could not have been an intention 

to stay beyond that point.” The Tax Commissioner determined 

that the Houghtons did not abandon their Nebraska domicile until they established permanent residency in the U.K. 

in 2016.

The Tax Commissioner noted two additional facts. One, 

the Houghtons’ retention of their Nebraska real estate until 

they obtained ILR status, which led the Tax Commissioner 

to remark that if they were “forced to return to the United 

States their former residence would serve as a ‘soft landing 
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spot.’” The other was Thomas’ sworn statement of Nebraska 

resident individual status in connection with the special capital gains election in 2012.

District Court Proceedings

The Houghtons filed a petition on appeal. They requested 

that the Tax Commissioner’s decision be set aside. They also 

sought a determination that they were not subject to additional 

income taxation, interest, and penalties for tax years 2012 

to 2014.

District Court’s Judgment

The district court affirmed the Tax Commissioner’s determination. The court also relied on Nebraska case law setting forth 

how one acquires a domicile by choice.

The district court determined that the additional facts 

noted in the Tax Commissioner’s order supported the Tax 

Commissioner’s finding. With regard to the Houghtons’ retention of their former Nebraska home, the court stated that it 

deferred to the Tax Commissioner’s judgment as to credibility 

when it found that such retention supported the conclusion 

that the Houghtons did not abandon their Nebraska domicile 

until after they established permanent residency in the U.K. 

The court also agreed with the Tax Commissioner that the 

Houghtons’ claim to not be Nebraska residents was inconsist

ent with the sworn statement by Thomas that he believed he 

was eligible for the special capital gains/extraordinary dividend election.

The district court considered whether the Houghtons’ visas 

during the relevant tax years made them incapable of acquiring domicile in the U.K. It observed that the Houghtons’ 

Tier 2 general visas were valid for 3 years only, that they 

contained a specific expiration date, and that the Houghtons 

did not apply for ILR during the relevant tax years because 

the U.K.’s immigration rules required them to complete a 
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minimum of 5 years of continuous employment before they 

became eligible to remain indefinitely. The court determined 

that the Houghtons’ “intent to remain indefinitely in the 

[U.K.] during those years was inconsistent with [U.K.] law 

and was at most ‘an unrealistic subjective intent,’ which is 

insufficient to effect a change of domicile from Nebraska to 

the [U.K.]”

The Houghtons filed a timely appeal, which we moved to 

our docket. 3

ASSIGNMENTS OF ERROR

The Houghtons assign that the district court erred in (1) 

determining that their domicile remained in Nebraska because 

they failed to prove that they were domiciled in the U.K. 

during the relevant tax years and (2) affirming the Tax 

Commissioner’s order.

STANDARD OF REVIEW

Any final action of the Tax Commissioner may be appealed, 

and the appeal shall be in accordance with the Administrative 

Procedure Act. 4 In an Administrative Procedure Act review 

proceeding, the district court reviews the agency’s decision de 

novo on the record of the agency and may affirm, reverse, or 

modify the decision of the agency or remand the case for further proceedings. 5

[1,2] In an appeal under the Administrative Procedure Act, 

an appellate court may reverse, vacate, or modify the judgment of the district court for errors appearing on the rec

ord. 6 When reviewing an order of a district court under the 

3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

4 Neb. Rev. Stat. § 77-27,127 (Reissue 2018).

5 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 

(2017).

6 Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947 

N.W.2d 731 (2020).
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Administrative Procedure Act for errors appearing on the 

record, the inquiry is whether the decision conforms to the law, 

is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable. 7

ANALYSIS

Each year, Nebraska imposes a tax on the entire income of 

every resident individual. 8 As relevant here, a “[r]esident individual” is “an individual who is domiciled in Nebraska . . . .” 9

Thus, the critical issue in determining whether the Houghtons’ 

entire income was subject to taxation is whether they were 

domiciled in Nebraska.

[3,4] The requirements to establish domicile are well established. It is universally held that to acquire a domicile by 

choice, there must be both (1) residence through bodily presence in the new locality and (2) an intention to remain there. 10

All of the surrounding circumstances and the conduct of the 

person must be taken into consideration to determine his or 

her domicile. 11

Although we have not addressed domicile in connection 

with an income taxation case, the parties do not suggest that 

we attribute a different meaning or requirements for establishing domicile in this context. The discussion most frequently arises in the context of jurisdiction for dissolution 

of marriage. 12 But we have repeated the same requirements 

7 Id.

8 See Neb. Rev. Stat. § 77-2715(1) (Reissue 2018).

9 Neb. Rev. Stat. § 77-2714.01(7) (Reissue 2018).

10 In re Estate of Craven, 265 Neb. 41, 654 N.W.2d 196 (2002).

11 Id.

12 See, e.g., Rozsnyai v. Svacek, 272 Neb. 567, 723 N.W.2d 329 (2006); 

Huffman v. Huffman, 232 Neb. 742, 441 N.W.2d 899 (1989). See, also, 

Lasu v. Lasu, 28 Neb. App. 478, 944 N.W.2d 773 (2020); Metzler v. 

Metzler, 25 Neb. App. 757, 913 N.W.2d 733 (2018); Catlett v. Catlett, 23 

Neb. App. 136, 869 N.W.2d 368 (2015).
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for domicile in election-related cases, 13 probate matters, 14 and 

matters concerning medical expenses. 15

[5,6] To change domicile, there must be an intention to 

abandon the old domicile. 16 To establish a new domicile, the 

present intention must be to remain indefinitely at a location 

or site or to make a location or site the person’s permanent or 

fixed home. 17

The Houghtons had the burden of proof 18 to show that they 

possessed the intent to abandon their Nebraska domicile and 

remain indefinitely in the U.K. “One’s testimony with regard 

to his intention is, of course, to be given full and fair consideration, but is subject to the infirmity of any self-serving 

declaration, and may frequently lack persuasiveness or even be 

contradicted or negatived by other declarations and inconsist

ent acts.” 19

The Tax Commissioner and the district court recited the 

same basic principles regarding establishment of a domicile. 

And they agreed that the relevant facts largely were not in 

dispute. Both the Tax Commissioner and the district court 

determined that the Houghtons failed to meet their burden 

of proof.

13 See, State v. Jensen, 269 Neb. 213, 691 N.W.2d 139 (2005); Krajicek v. 

Gale, 267 Neb. 623, 677 N.W.2d 488 (2004); State v. Jones, 202 Neb. 488, 

275 N.W.2d 851 (1979); Dilsaver v. Pollard, 191 Neb. 241, 214 N.W.2d 

478 (1974).

14 See, In re Estate of Craven, supra note 10; In re Estate of Meyers, 137 

Neb. 60, 288 N.W. 35 (1939).

15 See, Gosney v. Department of Public Welfare, 206 Neb. 137, 291 N.W.2d 

708 (1980); County of Kearney v. County of Buffalo, 167 Neb. 117, 91 

N.W.2d 304 (1958).

16 In re Estate of Craven, supra note 10.

17 See, In re Estate of Craven, supra note 10; Metzler v. Metzler, supra 

note 12.

18 See Neb. Rev. Stat. § 77-2781 (Reissue 2018).

19 Dist. of Columbia v. Murphy, 314 U.S. 441, 456, 62 S. Ct. 303, 86 L. Ed. 

329 (1941).
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[7] Our decision is driven by our standard of review. 

Importantly, our review is not de novo. Instead, we review the 

district court’s order for errors appearing on the record. In conducting such a review, we will not substitute our factual findings for those of the district court where competent evidence 

supports those findings. 20

[8] The record supports the district court’s factual findings. Intent is a question of fact, which may be determined 

by circumstantial evidence. 21 The Houghtons’ 2012 tax return 

shows that Thomas claimed to qualify for an election that is 

available only to a “resident individual,” 22 i.e., someone “who 

is domiciled in Nebraska or who maintains a permanent place 

of abode in this state and spends in the aggregate more than 

six months of the taxable year in this state.” 23 The record also 

demonstrates that the Houghtons did not sell their former home 

in Nebraska until 2017. These factors do not demonstrate an 

intent to abandon their Nebraska domicile.

[9,10] The court’s factual findings as to the Houghtons’ visa 

status are also supported by the record. The evidence showed 

that the Houghtons’ Tier 2 general visas were valid for 3 years 

with a specific expiration date. It also showed that they could 

not apply for ILR during the relevant tax years. “Where a 

person’s move is to a foreign country, the nature of the visa 

under which admission is granted is an essential inquiry in 

determining the person’s domicile.” 24 An individual’s subjective intent is not dispositive of domicile if a limited visa of 

20 See Ash Grove Cement Co. v. Nebraska Dept. of Rev., supra note 6.

21 See, e.g., In re Interest of Gabriella H., 289 Neb. 323, 855 N.W.2d 368 

(2014); In re Dissolution & Winding Up of Keytronics, 274 Neb. 936, 744 

N.W.2d 425 (2008); State v. Kennedy, 239 Neb. 460, 476 N.W.2d 810 

(1991).

22 § 77-2715.09(1).

23 § 77-2714.01(7) (emphasis supplied).

24 28 C.J.S. Domicile § 21 at 79 (2019). See, also, Comptroller of the 

Treasury v. Mollard, 53 Md. App. 631, 455 A.2d 72 (1983).
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the foreign country is intended to restrict his or her intent, for 

an intent inconsistent with law is unrealistic and insufficient 

to establish a domicile. 25 The district court determined that 

the Houghtons’ intent to remain indefinitely in the U.K. during the tax years at issue was inconsistent with U.K. law. The 

record contains competent evidence to support this finding, 

and the court’s decision conforms to the law.

CONCLUSION

The district court’s decision that the Houghtons failed to 

prove they were domiciled in the U.K. during the tax years at 

issue conforms to the law, is supported by competent evidence, 

and is neither arbitrary, capricious, nor unreasonable. Because 

we find no errors appearing on the record, we affirm the judgment of the district court.

Affirmed.

Miller-Lerman, J., concurring in the result.

I concur in the result reached by the court which affirms the 

district court’s affirmance of the order of the Tax Commissioner 

which found a tax deficiency in the tax returns of the Houghtons 

for 2012, 2013, and 2014. However, I believe the district court 

unreasonably found that the taxpayers’ election to receive the 

special capital gains/extraordinary dividend treatment under 

Neb. Rev. Stat. § 77-2715.09 (Reissue 2018) in 2012 was probative of their residential status in 2013 and 2014. But because 

the 2012 election was merely a secondary reason upon which 

the Tax Commissioner relied in reaching its finding that the 

taxpayers were residents of Nebraska in all 3 years, the district 

court’s erroneous finding was not consequential.

Section 77-2715.09(1) provides:

Every resident individual may elect under this section 

to subtract from federal adjusted gross income, or for 

25 28 C.J.S., supra note 24; Comptroller of the Treasury v. Mollard, supra 

note 24.
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trusts qualifying under subdivision (2)(c) of this section 

from taxable income, the extraordinary dividends paid on 

and the capital gain from the sale or exchange of capital 

stock of a corporation acquired by the individual (a) on 

account of employment by such corporation or (b) while 

employed by such corporation.

For tax year 2012, the taxpayers signed “Form 4797N,” 

which provides: “I hereby elect to receive the special capital gains/extraordinary dividend treatment provided under 

Neb. Rev. Stat. § 77-2715.09 and declare under penalties 

of perjury that to the best of my knowledge and belief, the 

capital stock described above qualifies for the special capital gains/extraordinary dividend election.” As noted, under 

§ 77-2715.09(1), only Nebraska residents may elect to receive 

special capital gains treatment. But § 77-2715.09(2)(a) provides that “[e]ach individual shall be entitled to one election 

under subsection (1) of this section during his or her lifetime 

for the capital stock of one corporation.”

The fact that taxpayers took the election in 2012 is probative of their residency in 2012. However, because the election 

was not available to taxpayers in 2013 and 2014 by virtue of 

§ 77-2715.09(2)(a), no logical inference based on taking the 

election in 2012 can be imposed on tax years 2013 and 2014.

In its order, the district court found that the claim of taxpayers that “they were not Nebraska residents during the relevant 

tax years is inconsistent with [Thomas] Houghton’s sworn 

statement made on the Form 4797N.” (Emphasis supplied.) 

Given the statutes, this finding is not warranted.

Taxpayers took the one-time claim in 2012, which supports a 

finding that, for tax purposes, they were residents of Nebraska 

in 2012. But in 2013 and 2014, they cannot be faulted for not 

taking an election to which they were not entitled and no inference should be drawn from their forbearance from taking an 

unavailable election.

Taking the election in 2012 tells us nothing about the taxpayers’ claim of residential status in 2013 and 2014, much 
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less that their inaction was inconsistent with their claim of 

Nebraska residency in 2012. But, in any event, because the 

Tax Commissioner only referred to the 2012 election as an 

additional fact after having already found Nebraska residency 

for all 3 years based on other evidence, the district court’s ultimate conclusion to affirm the Tax Commissioner’s order was 

not error.