Randolph A. Cotter v. Commissioner of Revenue (January 15, 2010)

COMMONWEALTH OF MASSACHUSETTS

APPELLATE TAX BOARD


RANDOLPH A. COTTER		  v.	     COMMISSIONER OF REVENUE


Docket No. C293719				Promulgated:
        						January 15, 2010


	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 tax assessed to  the appellant, Randolph A. Cotter ("Mr. Cotter" or "appellant") for tax years 2003 and 2004 ("tax years at issue").  
	Commissioner Scharaffa heard this appeal.  Chairman Hammond and Commissioners Egan, Rose, and Mulhern joined him in a decision for the appellee.
	These findings of fact and report are made pursuant to requests by the appellant and appellee under G.L. c. 58A, § 13 and 831 CMR 1.32

	Bartholomew P. Molloy, Esq. for the appellant.

	Celine E. Jackson, Esq. and Benson V. Solivan, Esq. for the appellee.

FINDINGS OF FACT AND REPORT
On the basis of a Statement of Agreed Facts and testimony and exhibits offered during the hearing of this appeal, the Appellate Tax Board ("Board") made the following findings of fact.
On April 10, 2004, Mr. Cotter filed a Massachusetts part-year resident income tax return for the tax year 2003, reporting part-year Massachusetts income tax due of $9,678.00.  On that return, Mr. Cotter indicated that he was a Massachusetts resident from January 1, 2003 through May 7, 2003.  On April 2, 2005, Mr. Cotter filed a Massachusetts non-resident income tax return for all of tax year 2004, reporting no Massachusetts income tax due.  
By a Notice of Intention to Assess dated April 30 2006, the Commissioner proposed to assess $13,248.45 and $14,308.05 of personal income tax plus interest for the tax years 2003 and 2004, respectively, based on her determination that Mr. Cotter was domiciled in Massachusetts during the tax years at issue.  By a Notice of Assessment dated October 18, 2006, the Commissioner assessed personal income tax in the amount of $13,807.20 and $14,911.49 for the 2003 and 2004 tax years, respectively.  On or about November 9, 2006, Mr. Cotter paid the outstanding tax liabilities for the tax years at issue.
Mr. Cotter filed an Application for Abatement for the tax years at issue with the Commissioner on March 14, 2007.  On August 22, 2007, the Commissioner issued to Mr. Cotter a Notice of Abatement Determination denying his request for abatement for the tax years at issue.  On October 3, 2007, Mr. Cotter timely filed his appeal for the tax years at issue with the Board.  Based on the above facts, the Board found that it had jurisdiction to hear and decide this appeal.  
At issue in this appeal is whether Mr. Cotter was a Massachusetts resident for purposes of personal income tax for the tax years at issue.  Mr. Cotter was a Massachusetts domiciliary for a number of years prior to the tax years at issue.  He was raised in Saugus and obtained degrees from Wentworth Institute and Northeastern University in Boston.  Subsequently, Mr. Cotter was employed by a number of companies in Massachusetts, except for a ten-year period when he was employed in New York City.  He returned to Massachusetts in April, 1979.  
The appellant's personal and family connections.

It is undisputed that, prior to the tax years at issue, Mr. Cotter's primary residence was a single-family home located in Lynnfield, Massachusetts ("Lynnfield property"), which he kept furnished during the tax years at issue.  One of Mr. Cotter's witnesses, Karen Gallagher, a Massachusetts resident, described the Lynnfield property as an upscale home with multiple bedrooms and good landscaping.  During the tax years at issue, Mr. Cotter also owned a single-family home in Gloucester, Massachusetts ("Gloucester property"). Mr. Cotter testified that he had owned the Gloucester property since the mid-1990s and used it primarily as a summer beach house.  
Mr. Cotter first acquired property in Florida in the mid-1990s, when he purchased a condominium in Fort Lauderdale, Florida ("Unit 238") for the purpose of visiting during the winter.  The two-bedroom unit was located in the middle of its complex with no ocean or lake view.  Mr. Cotter testified that during the years that he owned Unit 238, he considered his Lynnfield property to be his primary residence.  Mr. Cotter sold Unit 238 at or around the end of 2001.  In November, 2001, Mr. Cotter purchased a three-bedroom condominium ("Unit 291") in the same development.  After purchasing Unit 291, Mr. Cotter and his companion, Judy, renovated and refurnished the unit so that it was ready for occupancy by the fall of 2002.  
 Mr. Cotter testified that it was some time late in 2002 that he formulated his intent to change his domicile from Massachusetts to Florida.  In an attempt to accomplish this goal, Mr. Cotter consulted with Attorney Ronald N. Stetler of Pepe & Hazard in Boston.  Mr. Cotter stated that a warmer climate and social activities, like fishing, were some of the reasons for his decision to change his domicile.  However, Mr. Cotter's testimony revealed that a fundamental motivation for changing his domicile to Florida was tax relief:   
Q. What was the purpose of retaining Mr. Stetler of Pepe & Hazard?
A. I needed a tax attorney, not a civil attorney, because I had a lot of money and I had to make decisions on what I did correctly and I didn't want to make any mistakes.  So, that's why I hired a tax attorney.
Q. After consulting with Mr. Stetler what, if anything, did you understand were the tax benefits of being domiciled in Florida as opposed to Massachusetts?
A. Multiple.  And he listed them up for me.
Number 1, there was no inheritance tax in Florida as there was in Massachusetts.
Number 2, there was no state income tax in Florida as there was in Massachusetts. 
If I become a Florida resident, it also gave me the ability to homestead. So the pluses far outweighed the minuses.  And that's when we made the decision to go forward . . . .

Mr. Cotter described the process he undertook to establish his domicile in Florida:  "They gave me a check list; these are the things that you have to do because the state watches out for these things.  Florida requires these things.  And that's what we did."    
Mr. Cotter detailed his efforts to change his domicile to Florida.  He testified that he listed his Lynnfield property for sale around October, 2002.  However, Mr. Cotter continued to own the Lynnfield property during the tax years at issue.  His explanation was that he listed the Lynnfield property for $999,500 but, because the real estate market was depressed at that time, he did not sell it until 2005. 
Mr. Cotter testified that Mr. Stetler also advised him to take a number of actions, including obtaining a Florida driver's license, registering to vote in Florida, filing Florida Intangible Property Tax Returns, filing a Declaration of Domicile in Florida, and residing outside of Massachusetts for more than 183 days a year.  Mr. Cotter testified that he met all of these objectives.  Documentation submitted into evidence indicated that Mr. Cotter registered to vote in Florida on May 5, 2003.  Mr. Cotter testified that he changed his will to reflect his Florida address, but that he did not execute it until late 2003.  The evidence also showed that when Mr. Cotter first obtained a Florida driver's license in 2003, he applied for and received a seasonal driver's license; he did not acquire a full-year Florida driver's license until March 11, 2004 and did not register a vehicle in Florida until he registered his primary vehicle, a Lexus, on April 20, 2004.  In the meantime, Mr. Cotter renewed his Massachusetts driver's license on June 25, 2004, on which he listed his Lynnfield property as his address.  Moreover, he owned and maintained multiple automobiles, motorcycles, and a trailer registered in Massachusetts during the tax years at issue.  Finally, Mr. Cotter testified that he filed a Declaration of Domicile in Florida on May 5, 2003, but he did not produce a copy of the declaration.
Mr. Cotter joined various organizations in Florida, including the Lago Mar Beach Club, the Florida chapter of the American Offshore Marina, the International Game Fishing Association, and the American Society of Mechanical Engineers.  He also received his captain's license and became a merchant marine officer.  However, Mr. Cotter was also a member of the Heron Way Marina in Gloucester, where he participated in boating and fishing activities with his Massachusetts friends during the tax years at issue.  Also during the tax years at issue, Mr. Cotter registered a boat in Florida, but he also maintained two boats registered in Massachusetts, in Quincy and in Gloucester.  
Mr. Cotter had no family in Florida during the tax years at issue.  Mr. Cotter had four children, three of whom lived in Massachusetts and one who lived in Maine.  All of Mr. Cotter's grandchildren resided in Massachusetts, as did his brother.  Mr. Cotter testified that he spent the Christmas and Thanksgiving holidays with his family in Massachusetts during the tax years at issue.  
Mr. Cotter submitted documentation of his credit card and ATM card transactions in an attempt to establish the number of days he was physically present in Florida during the tax years at issue.  At the hearing, Mr. Cotter presented a calendar on which he circled the dates on which he had used his credit card or bank card within Florida.  By counting the number of dates circled on the calendar, Mr. Cotter calculated that he was physically present in Florida at least 201 days in 2003 and at least 193 days in 2004.  
However, the Board found several inconsistencies between Mr. Cotter's calendars and the records of his credit card and banking transactions.  For example, Mr. Cotter had circled the dates January 25 and 27, 2003 as dates which he could confirm that he was in Florida.  However, First USA credit card statements indicate charges in Massachusetts for gas, retail stores, and a parking garage on January 25 through 28.  The Board found that the gas and parking garage charges in particular indicated that Mr. Cotter was actually present in Massachusetts instead of Florida on those dates.  The Board thus found that Mr. Cotter's calendars were inconsistent and unreliable and therefore not credible evidence of his physical presence outside of Massachusetts. 
At the hearing, Mr. Cotter's witnesses, called to testify about his ties to Florida, consisted of his son, Randolph, and two friends, all of whom were Massachusetts residents.  Randolph testified that he was very close to his father, and that the appellant was very close to his grandchildren, who enjoyed spending time at "Papa's house" in Gloucester.  Frank Armstrong, a friend of the appellant's, testified that he enjoyed motorcycling with Mr. Cotter in Massachusetts.  The appellant had not transferred registration of his motorcycles to Florida.  
Mr. Cotter retained his Massachusetts wireless telephone number during the tax years at issue.  He also maintained his Sovereign Bank account in Massachusetts and did not change the Massachusetts address on his personal checks.  The bank continued to forward his statements to his Lynnfield property.  Mr. Cotter also continued to receive a substantial amount of mail at his Lynnfield property during the tax years at issue, including: federal tax Forms 1098 and 1099 from Countrywide Home Mortgage; 2003 and 2004 Tax Reporting Statements from Merrill Lynch; combined tax statements from The Savings Bank, a Massachusetts bank; federal forms 1099 for both tax years at issue from Mony State St. Withholding Fund; a Valley Forge Life Insurance Company payment notice; a National Grange Mutual Insurance Company premium statement for 2003; ITT Industries Investment and Savings Plan statements for both tax years at issues; federal form 1099 from ITT Industries for tax year 2003; mortgage statements from Chase regarding the mortgage of Unit 291 for both tax years at issue; and First USA and Bank One credit card statements for both tax years at issue.  When asked why he did not change his mailing address on his accounts, Mr. Cotter responded:
A:  . . . . The system said to do all of these things.  The system never said, make sure that you change your mailing address.  
Q: What system?
A: When I worked with Ron Stetler of Pepe & Hazard.  He was very specific of the things I had to do to become a Florida resident.

Furthermore, when Mr. Cotter filed a petition with the Gloucester Board of Appeals regarding his Gloucester property on November 14, 2005, he provided his Lynnfield address as the return address on the petition.  Moreover, his vehicle excise bills were sent to him at his Lynnfield property for both tax years at issue, as was his boat excise bill for 2003.  Finally, when Mr. Cotter won a sum of money from a Florida casino, he signed a receipt on November 1, 2003, six months after purportedly changing his domicile to Florida, declaring under the pains and penalty of perjury that his address for income tax purposes was his Lynnfield property.    
The appellant's Massachusetts business connections.

In 1979, the appellant founded Cotter Corporation, which built custom-process skid systems for biopharmaceutical and biotech companies. Cotter Corporation's final location was 8 South Side Road in Danvers (the "Danvers property").  The Danvers property was owned by the Cotter Realty Trust, a Massachusetts real estate trust, which the appellant established in 1995 with himself as trustee and, along with his children, a beneficiary.  On April 17, 2001, Mr. Cotter sold the assets of Cotter Corporation to ITT Industries, which changed the name of the company to Pure Flo Cotter, Division of ITT Industries ("Pure Flo Cotter").  Mr. Cotter remained the President of Cotter Corporation until November 10, 2004, the date that Cotter Corporation received its final payment from ITT Industries and was officially dissolved. 
Pure Flo Cotter continued to operate the business at the Danvers property, which at the time of sale was within the ownership and control of the Cotter Realty Trust.  According to a Trustee's Certificate entered into evidence, the Cotter Realty Trust "remain[ed] in full force and effect" as of July 19, 2004, the date of that certificate's signing, and the appellant never suggested that the Cotter Realty Trust was dissolved at any time during the tax years at issue.  The Board thus found that the Cotter Realty Trust continued to own and operate the Danvers Property, and that Pure Flo Cotter leased the Danvers property from Cotter Realty Trust during the tax years at issue.  
As part of the sale, Mr. Cotter signed a four-year non-competition contract and a two-year employment contract to work as a consultant for Pure Flo Cotter.  However, Mr. Cotter's consulting relationship was terminated in October, 2002.  Pure Flo Cotter continued to pay Mr. Cotter until April 17, 2003.  Mr. Cotter's sons, Randolph, Jr. ("Randolph") and Timothy, then formed Cotter Brothers Corporation, a direct competitor of Pure Flo Cotter, in July, 2003.  Mr. Cotter testified that he had no business dealings with Cotter Brothers Corporation until after his non-competition contract expired in April, 2005, and that he was not a member of the Cotter Brothers Corporation board of directors until 2007.  
As explained above, Pure Flo Cotter continued to lease the Danvers property from the Cotter Realty Trust, of which Mr. Cotter was the trustee during the tax years at issue.  Mr. Cotter and Randolph both testified that Mr. Cotter was given a corner office in the back of the building occupied by Cotter Brothers Corporation.  Mr. Cotter testified that the corner office was reserved for him because of his work as the trustee of the Cotter Realty Trust, which leased the Danvers property to Pure Flo Cotter during the tax years at issue.  Moreover, Mr. Cotter was also the President and Secretary of a Massachusetts corporation during the tax years at issue called Ultra-Pure Stainless, Inc. ("Ultra-Pure Stainless"), organized on October 30, 1991 and with its principal place of business at the Danvers property.  The Board thus found that Mr. Cotter had an office and continued to perform business duties at the Danvers property during the tax years at issue.      
Mr. Cotter also established a Massachusetts realty trust for his children's benefit, the Skipper Way Realty Trust, which owned the Gloucester property during the tax years at issue.  He also established a charitable trust fund sometime in 2004 in honor of his late sister.  The Elizabeth Cotter Trust was originally managed by a charitable foundation in Boston until Mr. Cotter transferred management of the fund to the Broward Foundation in Florida sometime in 2005.  Finally, in May, 2003, the appellant established Cotter Consulting Group, a Delaware corporation with its principal place of business at Unit 291.  In July, 2003, Mr. Cotter registered Cotter Consulting Group with the Massachusetts Secretary of State as a foreign company registered to do business in Massachusetts.  The listed Registered Agent was Attorney Stetler, Mr. Cotter's attorney from Massachusetts.       
The Board's ultimate findings.
The appellant readily admitted that tax savings was a primary motivation for him to change his domicile to Florida and that he received a "check list" from a tax attorney to establish a basis for claiming a change of domicile.  While he enjoyed pastimes like going to the beach and fishing, it was undisputed that the core of Mr. Cotter's family and social life was in Massachusetts during the tax years at issue.  Mr. Cotter retained his upscale Lynnfield property, which he kept furnished, and the vast majority of Mr. Cotter's family, with whom he was very close and with whom he spent much time, remained in Massachusetts during the tax years at issue.  Mr. Cotter also enjoyed his pastimes of boating and fishing in Massachusetts through his involvement with the Heron Way Marina social club and his maintenance and use of two boats registered in Massachusetts, as well as his motorcycling in Massachusetts.  
The appellant also kept multiple vehicles registered in Massachusetts.  The only vehicle he registered in Florida was his Lexus, which he did not register in Florida until April 20, 2004, beyond the 2003 tax year and well into the 2004 tax year.  When he first obtained a driver's license in Florida sometime in early 2003, he applied for and received only a seasonal license; he did not obtain a full-time Florida license until March 11, 2004, and even then he renewed his Massachusetts license on June 25, 2004.  While Mr. Cotter testified that he obtained a seasonal license in Florida and renewed his Massachusetts license in error, the Board was not persuaded that Mr. Cotter would take such actions unwittingly, particularly when he did not register any vehicles in Florida until April 20, 2004, and he maintained multiple vehicles in Massachusetts during the tax years at issue.  Instead, the Board regarded all of the above factors as establishing that Mr. Cotter's family and societal ties were stronger in Massachusetts than in Florida during the tax years at issue.  
Moreover, Mr. Cotter retained much of his personal financial business in Massachusetts during the tax years at issue. He maintained a Massachusetts checking account, and he never changed his Massachusetts address on that account nor on the checks associated with that account.  The appellant also received a substantial amount of mail at his Lynnfield property; he periodically filed change of address forms with the Post Office, but the appellant never changed his address to reflect his "new" domicile on his important financial accounts, including life insurance accounts, the mortgage account for Unit 291, his ITT retirement account, and his First USA credit card account.  Therefore, his important Federal Forms 1098 and 1099 were directed to his Lynnfield property.  Moreover, on November 1, 2003, after his alleged move to Florida, he made a sworn statement on a gambling winnings tax form, for a casino located in Florida, that his address for income tax purposes was his Lynnfield property.  
In addition, Mr. Cotter's in-state business activities with Skipper Way Realty Trust, Ultra-Pure Stainless, Cotter Consulting, and Cotter Realty Trust, which owned and leased the Danvers property during the tax years at issue, indicated that the appellant's business network remained strongly rooted in Massachusetts during the tax years at issue.  Mr. Cotter also maintained charitable activities in Massachusetts as trustee of the Elizabeth Cotter Trust, which was established in Massachusetts in 2004 and which he managed in Massachusetts until after the tax years at issue.  The Board found that all of the above facts established that Mr. Cotter's business and financial ties were stronger in Massachusetts than in Florida during the tax years at issue.
Therefore, on the basis of the evidence presented in this appeal, the Board found that the appellant's legal filings in Florida were performed under the direction of his tax attorney and extended no further than what the tax attorney's "system" dictated.  These filings established a mere superficial relationship with Florida.  However, the center of Mr. Cotter's physical, business, social and civic activities remained in Massachusetts during the tax years at issue.  Therefore, the Board found that Mr. Cotter demonstrated an intent to retain Massachusetts as his domicile during the tax years at issue.  
Because the Board found that Mr. Cotter was domiciled in Massachusetts, it was not required to find that Mr. Cotter spent less than 183 days in Massachusetts.  See G.L. c. 62, § 1(f).  However, the Board examined Mr. Cotter's evidence on this point because his physical presence in Massachusetts was a factor to be considered in determining whether Mr. Cotter was domiciled in Massachusetts during the tax years at issue.  The Board found that Mr. Cotter's statements on his own calendars and his testimony at the hearing were inconsistent with his credit card and banking records and thus adversely impacting his credibility and the credibility of the evidence he offered.  The Board thus found that Mr. Cotter failed to produce evidence sufficient to establish that he was absent from Massachusetts as often as he claimed and instead indicated that he maintained a strong physical presence in Massachusetts during the tax years at issue.
Accordingly, and for the reasons stated more fully in the Opinion, the Board ruled that Mr. Cotter was a Massachusetts resident during the tax years at issue.  The Board, therefore, issued a decision for the appellee in this appeal.   
OPINION
Under G.L. c. 62 § 2, Massachusetts residents are taxed, with certain limitations not relevant here, on all of their income from whatever sources derived.  In contrast, Massachusetts taxes non-residents only on income from Massachusetts sources.  See G.L. c. 62, § 5A.  A "resident" for Massachusetts tax purposes is defined as:
(1) any natural person domiciled in the commonwealth, or (2) any natural person who is not domiciled in the commonwealth but who maintains a permanent place of abode in the commonwealth and spends in the aggregate more than one hundred eighty-three days of the taxable year in the commonwealth, including days spent partially in and partially out of the commonwealth.

G.L. c. 62, § 1(f).  The issue presented in this appeal is whether the appellant was domiciled in Massachusetts or, if not, spent over 183 days in Massachusetts and, therefore, is taxable as a resident of Massachusetts.   
Domicile is commonly defined as "the place of actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode."  Commonwealth v. Davis, 284 Mass. 41, 50 (1933).  While domicile may be a difficult concept to define precisely, the hallmark of domicile is that it is "'the place where a person dwells and which is the center of his domestic, social and civil life.'" Reiersen v. Commissioner of Revenue, 26 Mass. App. Ct. 124, 125 (1988) (citing Restatement (Second) of Conflict of Laws § 12 (1969)). 
The Supreme Judicial Court and Massachusetts Appeals Court have recognized that a person may have a residence in one place and a permanent home (i.e., domicile) in another.  See, e.g., Hopkins v. Commissioner of Corps. & Tax'n, 320 Mass. 168, 173 (1946); Horvitz v. Commissioner of Revenue, 51 Mass. App. Ct. 386, 393 (2001).  Having more than one residence can lead to factors on more than one side of the "domicil[e] ledger."  See Reiersen, 26 Mass. App. Ct. at 127.  Therefore, a determination of domicile depends upon a comprehensive facts-and-circumstances analysis: 
"No exact definition can be given of domicile; it depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case . . .; and it may often occur, that the evidence of facts tending to establish the domicile in one place, would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which fix it, beyond question, in another."

Horvitz v. Commissioner of Revenue, Mass. ATB Findings of Fact and Reports 2002-252, 257, aff'd, 60 Mass. App. Ct. 1103 (2003) (quoting Tax Collector of Lowell v. Hanchett, 240 Mass. 557, 561 (1922)(citation omitted)); see also Roarke v. Hanchett, 240 Mass. 557, 561 (1922) (finding that proof of domicile "depends upon no one fact or combination of circumstances, but from the whole taken together it must be determined in each particular case.").  While a person may have ties to more than one location, the standard of domicile is that it is "'the place where a person dwells and which is the center of his domestic, social and civil life.'"  Reiersen, 26 Mass. App. Ct. at 125 (citation omitted). 
Once a party has established a domicile, the burden of proving a change is upon the party seeking to establish the change.  Horvitz, 51 Mass. App. Ct. at 394; Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Tax'n, 327 Mass. 631, 638 (1951); Commonwealth v. Bogigian, 265 Mass. 531, 538 (1929).  In the present appeal, it is undisputed that Mr. Cotter was a Massachusetts domiciliary for most of his life, including the twenty-three years preceding the tax years at issue.  Since Mr. Cotter was the party asserting that he changed his domicile to Florida, Mr. Cotter had the burden of proving that he was no longer domiciled in Massachusetts during the tax years at issue.  	
Massachusetts follows the common law rule that a person with legal capacity is considered to have changed his or her domicile by satisfying two elements: the establishment of physical residence in a different state and the intent to remain at the new residence permanently or indefinitely.  McMahon v. McMahon, 31 Mass. App. Ct. 504, 505 (1991).  The interpretation of intent goes beyond merely accepting the taxpayer's expression of intent and instead requires an analysis of the facts closely connected to the taxpayer's major life interests, including family relations, business connections, and social and extracurricular activities in order to determine his true intent.  See Reiersen, 26 Mass. App. Ct. at 125 ("A change of domicile occurs when a person with capacity to change his domicile is physically present in a place and intends to make that place his home for the time at least; the fact and intent must concur." (citing Hershkoff v. Board of Registered Voters of Worcester, 366 Mass. 570, 576-577 (1974))).  Moreover, while the determination of intent is subjective in nature, if a person's driving motivation for establishing the new domicile is to reduce a possible tax liability, the claimed domicile will be more closely scrutinized.  Davis, 284 Mass. at 50 ("A man cannot elect to make one place his home for the general purpose of life, and another place his home for the general purpose of taxation.").  
The Board first examined the evidence of Mr. Cotter's physical presence in Massachusetts.  While the appellant enjoyed pastimes like going to the beach and fishing in Florida, he also enjoyed those pastimes in Massachusetts through his involvement in the Heron Way Marina social club and his maintenance and use of two boats in Massachusetts.  Additionally, he enjoyed motorcycling in Massachusetts, and he never transferred his motorcycles to Florida.  The Board also found that the appellant's testimony and calendars contradicted his credit card and banking transaction records, thus undermining his credibility on the issue of the number of days he spent in Massachusetts.  On the basis of all of the evidence, the Board thus found and ruled that the appellant failed to prove that he was physically absent from Massachusetts as often as he claimed, and instead actually indicated that he maintained a strong physical presence in Massachusetts during the tax years at issue.
Mr. Cotter also had strong family ties in Massachusetts, where three of his children and his grandchildren resided and where he spent the Christmas and Thanksgiving holidays, as well as his summers, during the tax years at issue.  Mr. Cotter admitted to having no family in Florida.  Moreover, Mr. Cotter registered multiple vehicles in Massachusetts and renewed his Massachusetts license during the tax years at issue; by contrast, he did not register a vehicle in Florida until April, 2004, and he did not obtain a permanent Florida driver's license until March 2004.  On the basis of these facts, the Board found and ruled that Mr. Cotter's family and societal ties to Massachusetts were stronger than those to Florida during the tax years at issue.
Moreover, Mr. Cotter's maintenance of Massachusetts bank accounts, the fact that he did not change his address on key financial accounts, including his bank accounts, life insurance accounts, and even his mortgage account for Unit 291, and his statement to the Florida casino on November 1, 2003 that his address for income tax purposes was his Lynnfield property, all established that Mr. Cotter's financial ties to Massachusetts outweighed those to Florida during the tax years at issue.  The fact that Mr. Cotter did not change his address on these accounts simply because "the system never said, change your mailing address" established that the appellant was more interested in making a superficial show to establish the appearance of domicile "because I had a lot of money and I had to make decisions on what I did correctly and I didn't want to make any mistakes," rather than genuinely changing his domicile to Florida. 
Additionally, Mr. Cotter maintained significant business ties to Massachusetts during the tax years at issue through his involvement with Skipper Way Realty Trust, Ultra-Pure Stainless, Cotter Consulting, and Cotter Realty Trust, which owned and leased the Danvers property during the tax years at issue, as well as his charitable activities as trustee of the Elizabeth Cotter Trust.  The Board found and ruled that Mr. Cotter's business ties to Massachusetts were stronger than those to Florida during the tax years at issue.  
On the basis of the facts in evidence, the Board thus found and ruled that the appellant's family, social, personal and business ties established that he had no intent to abandon his Massachusetts domicile and change his domicile to Florida during the tax years at issue.  Therefore, the Board found and ruled that the appellant failed to meet his burden of proving that he was not domiciled in Massachusetts during the tax years at issue.  Accordingly, the Board issued a decision for the appellee in this appeal.       
    					APPELLATE TAX BOARD
		
				By: 					_____	__
				    Thomas W. Hammond, Jr., Chairman


A true copy,

Attest:					____	
	     Clerk of the Board

  On June 21, 2006, the Commissioner received a duly executed Special Consent Form Extending the Time for Assessment of Taxes, signed by the appellant.  

ATB 2010-39