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ACKLIE V. NEBRASKA DEPT. OF REV.

Cite as 313 Neb. 28

Phyllis Acklie, individually and as Personal 

Representative of the Estate of Duane Acklie, 

deceased, appellant, v. Nebraska Department 

of Revenue, a Nebraska administrative 

agency, and Tony Fulton, in his capacity 

as the State Tax Commissioner for the 

State of Nebraska, appellees.

___ N.W.2d ___

Filed December 9, 2022. No. S-21-985.

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. Administrative Law: Words and Phrases. A decision is arbitrary when 

it is made in disregard of the facts or circumstances and without some 

basis which would lead a reasonable person to the same conclusion.

4. Words and Phrases. A capricious decision is one guided by fancy 

rather than by judgment or settled purpose.

5. ____. The term “unreasonable” can be applied to a decision only if the 

evidence presented leaves no room for differences of opinion among 

reasonable minds.

6. 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.

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

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

domicile.

Nebraska Supreme Court Online Library

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

12/09/2022 09:04 AM CST
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Cite as 313 Neb. 28

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

abandon the old domicile.

9. ____: ____. 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.

10. 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.

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

which may be determined by circumstantial evidence.

12. Domicile. Domicile depends upon no one fact or combination of circumstances, but from the whole taken together, it must be determined in 

each particular case.

13. Domicile: Presumptions. Where facts are conflicting or where there 

is any reasonable doubt, the presumption is in favor of an original, or 

former, domicile, as against an acquired one.

14. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the District Court for Lancaster County: Lori 

A. Maret, Judge. Affirmed.

Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellant.

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

appellees.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Marsh, District Judge.

Cassel, J.

INTRODUCTION

The primary issue in this Administrative Procedure Act 

appeal is whether the taxpayers proved that they abandoned 

their domicile in Nebraska and acquired a domicile in Florida. 

The Tax Commissioner and the district court concluded that 

the taxpayers failed to meet their burden of proof. Because 

competent evidence supported the district court’s factual 
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findings and its decision conformed to the law, we affirm 

its judgment.

BACKGROUND

This appeal involves the Nebraska income tax returns of 

Duane Acklie and Phyllis Acklie for the period beginning on 

January 1, 2010, and continuing through December 31, 2014 

(the audit period). In other words, the audit period covered five 

calendar-year tax years: 2010, 2011, 2012, 2013, and 2014. 

The Acklies were married at all times during the audit period 

and filed income tax returns as married filing jointly.

The Acklies filed Nebraska income tax returns as residents 

of Nebraska for tax years prior to 2008. But for tax years 2008 

through 2014, the Acklies filed Nebraska income tax returns 

claiming status as nonresidents of Nebraska. The Nebraska 

Department of Revenue (Department) did not audit the Acklies 

for the 2008 or 2009 tax years, and no adjustments were made 

to those returns.

Department Proceedings

The Department sent the Acklies notices of proposed deficiency determinations for each tax year of the audit period. 

The notices all stated that the Acklies “are Nebraska residents.” 

Some of the notices added that the Acklies “maintained a permanent place of abode,” while others cited the statute defining 

“[r]esident individual.” 1

The Acklies filed petitions for a redetermination. They protested the entire amount of the tax, interest, and penalties proposed by the Department for each of the tax years. The Acklies 

claimed that they were not domiciled in Nebraska during the 

relevant years and that they did not spend more than 6 months 

in Nebraska.

A hearing officer for the Department conducted a hearing on 

behalf of the Tax Commissioner. For purposes of the hearing, 

1 Neb. Rev. Stat. § 77-2714.01(7) (Reissue 2018).
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Cite as 313 Neb. 28

the parties stipulated to a number of facts. They also stipulated 

to the amount of tax owed if both of the Acklies were Nebraska 

residents for the entire audit period and to the Acklies’ having no tax due if they were not residents of the state. In this 

opinion, we have omitted the property valuations shown in 

the record.

The evidence established that each of the Acklies was 

born in Nebraska in the 1930s. In 1971, the Acklies acquired 

Crete Carrier Corporation—a large trucking company based 

in Lincoln, Nebraska. During the audit period, the Acklies 

each possessed approximately a 1-percent ownership interest 

in Crete Carrier Corporation. Also during the audit period, 

each of the Acklies served as a director of the corporation and 

received compensation. During the 2010 to 2012 tax years, the 

corporation listed the Acklies as salaried Nebraska employees for purposes of filings with the Department in order to 

meet requirements to qualify for a “Nebraska Tax Incentive 

Program LB 775.” For purposes of the incentive program, the 

Department determined that the Acklies were nonresidents for 

the fiscal years September 30, 2008, through September 30, 

2012. This determination was based in part on the Acklies’ filing “a Form 12N, which is the Nebraska nonresident income 

tax agreement.”

Each of the Acklies owned a residence in Lincoln during 

the entirety of the audit period. They used the residence owned 

by Phyllis for residential purposes when they were in Lincoln. 

The Acklies did not use the residence owned by Duane for 

personal residential purposes; instead, they made it available to 

others for recreational use.

The parties owned several investment properties in 

Lancaster County, Nebraska, which they leased for payments 

of cash rent. In 2011, Phyllis purchased a 516.75-acre farm. 

In 2012, she purchased a 135.93-acre farm. The Acklies 

owned a 25.03-acre commercial property until they transferred it to Crete Carrier Corporation in December 2013 as 

part of a like-kind exchange for property in Madison County, 
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Cite as 313 Neb. 28

Nebraska. While the Acklies owned the property, they held 

it for investment purposes and leased the property to Crete 

Carrier Corporation in exchange for payments of cash rent.

The Acklies owned 10 farm properties in Madison County. 

They held the properties for investment purposes and leased 

them to third-party tenants in exchange for payments of cash 

rent. The property tax statements for the properties were mailed 

to a post office box in Lincoln.

The Acklies owned property in other states, too. In 1993, 

they purchased a residence in Colorado, which they used for 

residential purposes. In 1997, the Acklies purchased a residence in Florida, which they used for residential purposes. The 

Acklies acquired two farm properties in Minnesota during the 

audit period. They held the properties for investment purposes 

and leased them to third-party tenants in exchange for payments 

of cash rent. The property tax statements for the Minnesota 

properties were mailed to a post office box in Lincoln.

In 2008, the Acklies took a number of important actions in 

Florida. They moved “additional personal property” from their 

residence in Nebraska to their residence in Florida, though 

the record reveals no further information about the contents 

of this property. They obtained Florida driver’s licenses. They 

registered vehicles in their names. They registered to vote and 

exercised the right to vote in Florida elections. Phyllis completed paperwork and was approved to obtain a Florida homestead exemption for the Florida residence. In the proof-ofresidence section of the application, Phyllis stated that she 

“last became a permanent resident of Florida” on December 

25, 2007. Phyllis’ signature on the application appeared 

beneath a statement in which she declared, under penalties of 

perjury, that she was a permanent resident of Florida.

The Acklies had other ties to Florida. They became members of various organizations based in Florida, including a 

church and a country club. They maintained personal bank 

accounts with a bank in Florida and had statements mailed 

to their Florida residence. They established professional and 
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Cite as 313 Neb. 28

business relationships in Florida during the relevant period, 

including a relationship with an attorney. In 2012, the Acklies 

obtained updated passports, which identified them as residents of Florida. If called to testify, Phyllis would testify that 

the Acklies intended to change their domicile from Nebraska 

to Florida.

The Acklies retained connections to Nebraska. Their two 

living daughters resided in Lincoln. During the audit period, 

they maintained a senior golf membership at a country club in 

Lincoln. The Acklies had vehicles, a jet ski, a boat, and a boat 

trailer registered in Nebraska. During the audit period, Duane 

made 44 political contributions (approximately 15 percent of 

the total dollar amount of political contributions) to Nebraska 

entities or candidates where the receipt listed a Nebraska 

address, 5 contributions (approximately 5 percent) to national 

political entities where the receipt listed his Florida address, 

and 34 contributions (approximately 80 percent) to national 

political entities or to entities or candidates outside Nebraska 

and Florida where the receipt listed a Nebraska address. 

Political contributions by Phyllis all listed her Nebraska residence on the receipt. The Acklies also served as directors, 

honorary board members, or trustees for several Nebraska 

entities during the audit period. Some of these positions paid 

director fees. In 2015, an entity named Duane “Nebraskan of 

the Year,” though there was no requirement that the recipient be a current resident of Nebraska in order to receive 

the award.

In 2010, Duane executed a will in Nebraska that was prepared by a law firm in Nebraska. In 2013, Duane executed in 

Florida a codicil to his will; the codicil stated that he was “now 

of Collier County, Florida.” In the codicil, Duane “revoke[d] 

and delete[d] all references to Nebraska and the laws of that 

state and insert[ed] in lieu thereof references to Florida and 

the laws of that state.” Duane died in 2016. His remains were 

interred in a Nebraska cemetery. His obituary was published in 
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Cite as 313 Neb. 28

newspapers in Nebraska and Florida. In 2017, Phyllis filed a 

petition for determination of inheritance tax and an inheritance 

tax worksheet in Madison County. The petition and worksheet 

reported Duane’s domicile as being in Florida.

The parties stipulated that the Department issued a Nebraska 

Individual Income Tax Booklet for each year in the audit 

period. The booklets for 2010, 2011, and 2012 defined “[r]esident” as “[a]n individual who is domiciled in Nebraska or 

who maintained a permanent place of abode and resided in 

Nebraska for six months or more during [the tax year].” The 

booklets for 2013—published in January 2014—and 2014—

published in January 2015—expanded the definition of “resident,” which included language stating:

If an individual maintains a permanent place of abode in 

Nebraska and is present in Nebraska for at least 183 days 

during the tax year, that individual is a Nebraska resident 

even if living in another state. For this purpose, Nebraska 

considers any part of a day spent in Nebraska as a full day 

spent in the state.

The hearing officer received a “Location Summary” for each 

of the Acklies during each year of the audit period. The summaries displayed their travels and tracked days outside Nebraska 

and Florida, full days in Florida, partial days in Nebraska, and 

full days in Nebraska. The summaries showed that the Acklies 

traveled extensively. The partial days in Nebraska represented 

arrivals and departures; some partial days included being in 

Nebraska for as little as 2 hours. The Acklies would often 

arrive in Omaha, Nebraska, in the afternoon or evening and 

depart from Omaha in the morning.

Tax Commissioner’s Determination

The Tax Commissioner entered a 23-page order denying the 

Acklies’ petitions for redetermination. The Tax Commissioner 

observed that several actions favored the Acklies’ intentionally changing their domicile to Florida, but that other actions 

favored retaining Nebraska as a domicile.
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The Tax Commissioner wrote extensively on the relative amount of time spent in each jurisdiction. The Tax 

Commissioner concluded that the Acklies spent over 6 months 

per year in Nebraska when partial days in the state were 

included. The Tax Commissioner recognized that was not true 

in 2014, “where it was close, but not sufficient to pass the 

second test for residency,” but stated that the factors for the 

domicile test established residency status for 2014.

District Court Proceedings

Phyllis, individually and as personal representative of 

Duane’s estate, filed a petition for review in the district court. 

Her actions in these capacities will also be referenced as 

actions by the Acklies. The Acklies alleged that the Department 

improperly determined for the audit period that they (1) were 

domiciled in Nebraska, (2) spent in the aggregate more than 6 

months of the taxable year in Nebraska, (3) were required to 

report and pay individual income tax as Nebraska residents, 

and (4) should be assessed penalties.

District Court’s Judgment

The district court determined that the Acklies were residents 

of Nebraska during the audit period, because they were domiciled in Nebraska in each of those years. The court emphasized 

the alternative language of § 77-2714.01(7) defining a resident 

individual: “an individual 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.” (Emphasis in original.) The court 

stated that tables for Duane and Phyllis showing their respective days outside Florida and Nebraska, full days in Florida, 

partial days in Nebraska, and full days in Nebraska for each 

of the relevant tax years “clearly show that Duane and Phyllis 

spent considerably more time in Nebraska than in Florida for 

each year of the [a]udit [p]eriod, when counting partial days 

in Nebraska.”
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The court found that the Acklies failed to meet their burden of proof to show, for each relevant tax year, that they 

had the present intention to abandon their Nebraska domicile 

and remain indefinitely in Florida. It determined that evidence to support the Acklies’ assertion that they established 

a new domicile in Florida in 2008 was outweighed by substantial evidence of conduct during the audit period that was 

inconsistent with an intention to abandon Nebraska as their 

domicile. The court pointed to the Acklies’ maintaining two 

residences in Nebraska, registering vehicles and watercraft 

in Nebraska, being listed as salaried Nebraska employees 

located in the Crete Carrier Corporation office in filings with 

the Department, maintaining vast real estate investment holdings in Nebraska for which they received taxable income, 

having property tax statements for those properties mailed to 

addresses in Lincoln, and spending considerably more time in 

Nebraska than in Florida.

Alternatively, the court found that the Acklies were residents of Nebraska for the audit period, because they maintained a permanent place of abode in Nebraska and spent an 

aggregate of more than 6 months in Nebraska in each of those 

years. The court recognized the Acklies’ disagreement with the 

Department’s interpretation of 6 months as being equivalent 

to 183 days. It stated that the Acklies cited no legal authority 

to support their “‘fractional month’ approach to determining residency,” while the Department cited to 18 states that 

“‘use spending more than 183 days in the state as a basis for 

determining statutory residency.’” The court stated it would 

give the Department’s interpretation deference because the 

interpretation comported with the plain and ordinary meaning of the regulatory language and was not inconsistent or 

plainly erroneous. As to the Acklies’ disagreement with the 

Department’s position that any part of a day in Nebraska was 

considered a full day in Nebraska, the court stated that the 

issue was resolved by Neb. Rev. Stat. § 77-2714 (Reissue 
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2018) and I.R.C. § 7701(b)(7)(A) (2018). Using that interpretation, Duane and Phyllis each spent over 183 days in 

Nebraska in the 2010 to 2013 tax years; they did not do so 

in 2014.

The court found that the Acklies were each a resident of 

Nebraska for each year of the audit period, because each was 

domiciled in Nebraska during those years. Alternatively, it 

found that the Acklies were each residents of Nebraska for 

the taxable years 2010, 2011, 2012, and 2013 because they 

maintained a permanent place of abode and were present in 

Nebraska for an aggregate of more than 6 months during each 

of those years. Thus, the court found that the Acklies were liable for all unpaid taxes due and owing, together with interest, 

in the amounts previously stipulated to by the parties. With 

respect to the imposition of penalties, the court stated that the 

Acklies did not present the issue to the Tax Commissioner, 

but that they did present the issue to the court in their petition 

for review. Under Neb. Rev. Stat. § 84-917(5)(b)(i) (Cum. 

Supp. 2022), the court remanded the matter to the Department 

for resolution of whether penalties should be assessed on the 

taxes owed by the Acklies.

The Acklies appealed, and we moved the case to our 

docket. 2

ASSIGNMENTS OF ERROR

The Acklies assign that the district court erred (1) in determining that they were domiciled in Nebraska during the audit 

period, (2) in determining that they both maintained a permanent place of abode in Nebraska and spent in the aggregate 

more than 6 months in Nebraska in 2010 through 2013, (3) 

in determining that they were both resident individuals of 

Nebraska during the audit period, and (4) in affirming the 

deficiencies in income tax asserted by the Department for the 

audit period.

2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
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STANDARD OF REVIEW

[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 record. 3 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. 4

[3-5] A decision is arbitrary when it is made in disregard of 

the facts or circumstances and without some basis which would 

lead a reasonable person to the same conclusion. 5 A capricious 

decision is one guided by fancy rather than by judgment or 

settled purpose. 6 The term “unreasonable” can be applied to a 

decision only if the evidence presented leaves no room for differences of opinion among reasonable minds. 7

ANALYSIS

For Nebraska income tax purposes, a “[r]esident individual” 

is “an individual 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.” 8 Both parties focus on this definition.

As the district court emphasized, a person can fall within 

the definition of resident individual in two ways. One way 

is to be domiciled in Nebraska. The other is to maintain 

a permanent place of abode in Nebraska and spend in the 

3 Houghton v. Nebraska Dept. of Rev., 308 Neb. 188, 953 N.W.2d 237 

(2021).

4 Id.

5 Gelco Fleet Trust v. Nebraska Dept. of Rev., 312 Neb. 49, 978 N.W.2d 12 

(2022).

6 Id.

7 Id.

8 § 77-2714.01(7).
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aggregate more than 6 months of the year in Nebraska. We 

start with domicile.

Domicile

The Acklies argue that they changed their domicile to 

Florida in 2008 and that thus, they were domiciled there during each year of the audit period. They contend that the court 

erred by essentially determining that abandonment of their 

Nebraska domicile required severance of all significant ties to 

Nebraska. We disagree.

[6-9] The requirements to establish and change a domicile 

are settled. 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. 9 All of the surrounding 

circumstances and the conduct of the person must be taken into 

consideration to determine his or her domicile. 10 To change 

domicile, there must be an intention to abandon the old domicile. 11 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. 12

In terms of individual income tax, a regulation provides 

additional guidance on domicile. The regulation states:

The question of domicile is a question of fact rather 

than law, frequently depending upon a variety of circumstances. The term domicile shall mean the place where an 

individual has his or her true, fixed, and permanent home 

and principal establishment, and to which whenever he 

or she is absent he or she has the intention of returning. 

Actual residence is not necessarily domicile. 13

9 Houghton v. Nebraska Dept. of Rev., supra note 3.

10 Id.

11 Id.

12 Id.

13 316 Neb. Admin. Code, ch. 22, § 001.03 (2009).
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The burden of proof to show a change of domicile rested 

with the Acklies. 14 Both the Tax Commissioner and the district 

court determined that the Acklies failed to meet their burden 

of proof.

[10] Our standard of review is key. We are not entitled to 

weigh evidence or decide issues anew. Rather, our review 

focuses on whether the district court’s decision is supported 

by competent evidence, whether it conforms to the law, and 

whether it is neither arbitrary, capricious, nor unreasonable. 15

In conducting a review for errors appearing on the record, we 

will not substitute our factual findings for those of the district 

court where competent evidence supports those findings. 16

[11] Whether the Acklies changed their domicile revolves 

around their intent. Intent is a question of fact, which may be 

determined by circumstantial evidence. 17 The parties agreed 

that Phyllis would testify that the Acklies intended to change 

their domicile from Nebraska to Florida. However, we bear in 

mind that “‘any self-serving declaration . . . may frequently 

lack persuasiveness or even be contradicted or negatived by 

other declarations and inconsistent acts.’” 18

The district court based its decision on the Acklies’ conduct 

during the audit period that was inconsistent with an intention to abandon Nebraska as their domicile. The court found 

that this evidence outweighed evidence supporting a Florida 

domicile.

The Acklies assert that they are not asking us to reweigh 

factual findings of the court. But by asserting that “there are 

some facts that carry particular weight,” 19 they are essentially 

challenging the district court’s weighing of the evidence.

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

15 See Houghton v. Nebraska Dept. of Rev., supra note 3.

16 See id.

17 Id.

18 Id. at 197, 953 N.W.2d at 244.

19 Brief for appellant at 16.
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As the Acklies recognize, we stated in State v. Jensen 20 that 

“[o]ne fact of particular significance in ascertaining a person’s 

domicile is the act of registering and voting.” We quoted an 

earlier decision explaining as follows: “‘In doubtful cases particular significance should be attached to the repeated exercise 

of the right to vote, because this right depends upon citizenship and domicile, and must be generally, if not universally, 

supported by the oath of the voter. . . .’” 21

Thus, the Acklies highlight that when they registered to vote 

in Florida in 2008 and when they exercised that right, they 

swore that they were permanent residents of Florida. 22 They 

also direct our attention to other actions supported by an oath 

or sworn statement: Phyllis swore that she was a permanent 

resident of Florida when the Acklies applied for a homestead 

exemption in 2008, and Phyllis filed a petition for determination of inheritance tax in Nebraska in 2017 which reported 

Duane’s domicile as being in Florida.

[12] But the Jensen decision also reiterated that domicile 

“depends upon no one fact or combination of circumstances, 

but from the whole taken together, it must be determined in 

each particular case.” 23 Thus, the items the Acklies highlight 

do not control.

[13] Further insight is garnered from a legal encyclopedia. 

It cautions that “[a] fact of controlling importance in one case 

may have only slight significance in relation to all the facts 

of another . . . .” 24 It adds that “[w]here facts are conflicting 

or where there is any reasonable doubt, the presumption is in 

20 State v. Jensen, 269 Neb. 213, 218, 691 N.W.2d 139, 144 (2005).

21 Id. at 218-19, 691 N.W.2d at 144, quoting In re Estate of Meyers, 137 Neb. 

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

22 See, Fla. Const. art. VI, §§ 2 and 3; Fla. Stat. Ann. §§ 97.041(1)(a) and 

97.051 (West 2017).

23 State v. Jensen, supra note 20, 269 Neb. at 218, 691 N.W.2d at 144.

24 28 C.J.S. Domicile § 52 at 104 (2019).
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favor of an original, or former, domicile, as against an acquired 

one . . . .” 25

With regard to the relative amount of time spent in each 

jurisdiction, the district court quoted from our decision involving a quo warranto action. 26 In that case, the defendant was 

elected a county commissioner for Cherry County, Nebraska. 

At that time and for 2 years after, she lived in Cherry County 

with her husband on a rented ranch. The defendant and her 

husband owned a residence in Grant County, Nebraska, and 

in previous years, the defendant lived in that county with her 

children. After the defendant and her husband lost their lease 

on the Cherry County residence, the defendant changed her 

residence to an apartment in Cherry County, while her husband moved to their Grant County residence. The defendant 

changed her registration for voting to the Cherry County 

apartment. In determining the defendant’s domicile, this court 

discussed several surrounding circumstances. We stated that 

her bodily presence was nearly equal between the two counties and that her act of changing her voting registration “is an 

act indicating her intention to be domiciled in Cherry County, 

but is not conclusive.” 27 We noted that she told others her 

residence was in Grant County, that she did not register her 

vehicles in the precinct of her Cherry County apartment, and 

that she submitted claims for mileage from her Grant County 

residence to Cherry County. We reasoned that “[h]er returning 

to her husband’s Grant County residence during the times that 

her business activities did not require her presence in Cherry 

County are also indicative of her intention not to abandon her 

husband’s domicile.” 28

25 Id., § 46 at 98.

26 State v. Jones, 202 Neb. 488, 275 N.W.2d 851 (1979).

27 Id. at 492, 275 N.W.2d at 854.

28 Id. at 492-93, 275 N.W.2d at 854.
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Here, too, the amount of time the Acklies spent in each 

state is a factor for consideration. The court found that each 

of the Acklies “spent considerably more time in Nebraska 

than in Florida for each year of the [a]udit [p]eriod, when 

counting partial days in Nebraska.” Even comparing full 

days spent in each state, the days in Nebraska exceeded the 

days in Florida each year. But more importantly, the location summaries for each year tend to show that Lincoln was 

a “home base” for both Duane and Phyllis—it was the place 

from where they departed and to where they returned most 

frequently in connection with their travels. This remained true 

for each tax year of the audit period except 2014.

The district court’s factual findings are supported by competent evidence. As the court observed, some facts supported 

finding a Nebraska domicile, while others supported a Florida 

domicile. Being mindful that the evidence and inferences as to 

domicile were conflicting, that there is a presumption against 

a change of domicile in such a situation, that the burden of 

proof rested on the Acklies, and that we do not reweigh facts, 

we do not find any errors appearing on the record.

Aggregate of More 

Than 6 Months

[14] The Acklies also challenge the district court’s determination that they spent in the aggregate more than 6 months of 

the year in Nebraska for tax years 2010, 2011, 2012, and 2013. 

This argument pertains to the other way that a person can fall 

within the definition of a resident individual. But because we 

have already found that the Acklies fit within that definition 

based on domicile, we need not determine whether they also 

met the alternative test. An appellate court is not obligated to 

engage in an analysis that is not necessary to adjudicate the 

case and controversy before it. 29

29 Choice Homes v. Donner, 311 Neb. 835, 976 N.W.2d 187 (2022).
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Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

ACKLIE V. NEBRASKA DEPT. OF REV.

Cite as 313 Neb. 28

CONCLUSION

The district court’s decision that both Duane and Phyllis 

failed to prove they changed their domicile from Nebraska to 

Florida for any of the tax years within the audit period conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable. Having found 

no errors appearing on the record, we affirm the judgment of 

the district court.

Affirmed.

Heavican, C.J., not participating.