                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Cain v. Hamer, 2012 IL App (1st) 112833




Appellate Court            TYLER R. CAIN and TALBOT D. CAIN, Plaintiffs-Appellees and
Caption                    Cross-Appellants, v. BRIAN HAMER, in his official capacity as
                           DIRECTOR, ILLINOIS DEPARTMENT OF REVENUE; THE
                           ILLINOIS DEPARTMENT OF REVENUE; and JUDITH BAAR
                           TOPINKA, in her official capacity as STATE TREASURER of the State
                           of Illinois, Defendants-Appellants and Cross-Appellees.



District & No.             First District, First Division
                           Docket No. 1-11-2833


Filed                      July 16, 2012


Held                       Where the relevant factors supported the conclusion that plaintiffs had
(Note: This syllabus       abandoned Illinois and were Florida residents for purposes of the Illinois
constitutes no part of     Income Tax Act during the tax years at issue, they were entitled to
the opinion of the court   summary judgment on their complaint seeking a declaration that they
but has been prepared      were not required to pay resident Illinois income taxes for those years.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-L-050986; the
Review                     Hon. Elmer J. Tolmaire III, Judge, presiding.



Judgment                   Affirmed; cross-appeal dismissed.
Counsel on                 Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal                     Solicitor General, and Timothy K. McPike, Assistant Attorney General,
                           of counsel), for appellants.

                           Reed Smith LLP, of Chicago (Michael J. Wynne, Michael D. Richman,
                           and Adam P. Beckerink, of counsel), for appellees.


Panel                      PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
                           with opinion.
                           Justices Karnezis and Rochford concurred in the judgment and opinion.



                                             OPINION

¶1          The defendants, the Illinois Department of Revenue (Department), the Department’s
        Director Brian Hamer, and Illinois State Treasurer Judith Baar Topinka, appeal the decision
        of the circuit court granting summary judgment to the plaintiffs, Tyler and Talbot Cain, on
        their complaint for a declaration that they are not required to pay resident Illinois income
        taxes for the years from 1996 through 2004. On appeal, the parties dispute whether the
        plaintiffs qualified as Illinois residents during the relevant time period. The plaintiffs have
        also cross-appealed to argue that, in the event they were residents during the relevant time
        period, the Department should be barred from collecting their taxes due to certain procedural
        infirmities. For the reasons that follow, we affirm the judgment of the circuit court on the
        defendants’ appeal, and we dismiss the plaintiffs’ cross-appeal as moot.
¶2          In August 2006, the Department sent the plaintiffs a notice of tax deficiency, which
        asserted that the plaintiffs owed $1,842,582 in unpaid income taxes and penalties for the
        years from 1996 through 2004. After submitting payment under protest, the plaintiffs filed
        a complaint seeking a declaration that they were not Illinois residents during the disputed
        period. Prior to filing cross-motions for summary judgment, the parties stipulated to the facts
        of the case.
¶3          As the stipulation recites, the plaintiffs married “46 years ago” (approximately 1964, by
        the date of the stipulation’s filing) and began living in Illinois, where Mr. Cain worked as a
        self-employed trader at the Chicago Board of Options Exchange until 1990. They lived in
        their longtime Illinois home until 1995, when they purchased another lot in Illinois as part
        of a plan to sell their old home and build a smaller one. They eventually abandoned that plan,
        and, in August 1995, began work on an addition to their longtime Illinois home.
¶4          In November 1995, the plaintiffs executed and filed in Florida a “declaration of
        domicile” indicating that they had changed their domicile from Illinois to a Florida home
        they had constructed in 1990. In the document, the plaintiffs renounced their Illinois
        residency and declared themselves Florida residents. In 1995 and 1996, the plaintiffs

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       obtained permanent-resident identification cards in Florida. The plaintiffs also held Florida
       drivers’ licenses, voted in Florida, and received Florida jury duty summonses in the relevant
       time period, and Mr. Cain held a Florida firearm license. They had newspapers delivered to
       their Florida residence, and Mr. Cain used a cellular telephone with a Florida area code. They
       also purchased burial plots in Florida.
¶5         During the relevant period, the plaintiffs developed relationships with several medical
       professionals in Florida, but they also continued relationships with Illinois doctors. Likewise,
       the plaintiffs retained legal advisors in both states. They used Illinois income tax preparers
       to help them file their federal tax returns, and they made political contributions to Illinois and
       national candidates, and some other-state candidates, but no Florida candidates.
¶6         During the relevant period, the plaintiffs divided their time between Illinois and Florida,
       with only minimal variation in the time allotment from year to year. In 1996, for example,
       they spent 159 days in Florida, 161 in Illinois, and 45 elsewhere, while, in 2004, the plaintiffs
       spent 170 days in Florida, 171 in Illinois, and 24 elsewhere. In total, from 1996 through
       2005, the plaintiffs spent 1,700 days in Florida, 1,666 in Illinois, and 284 elsewhere.
       Testimonial evidence indicated that the plaintiffs had a pattern of going to Florida near the
       end of October, returning to Illinois for the Christmas holiday, then returning to Florida until
       May of each year.
¶7         The stipulation cites the plaintiffs’ July 2001 through August 2004 credit card statements
       as showing that “73% of their expenditures were made outside of Illinois, and they were
       making those expenditures outside of Illinois 61% of the time.” The plaintiffs maintained
       private club memberships in both states: their expenditures at those clubs for the years 2003
       through 2007 totaled approximately $236,000 for the Illinois clubs and $422,500 for the
       Florida clubs. Mrs. Cain participated in a Florida bridge club, and the plaintiffs were
       members, board members, or committee members of several organizations in both Florida
       and Illinois. They attended regularly scheduled meetings at clubs in both states.
¶8         Mrs. Cain, an interior designer, renewed her Illinois interior designer license throughout
       the relevant period, and, on her renewal forms, she did not indicate that her address had
       changed. However, she never used her decorator’s license for business in either Illinois or
       Florida.
¶9         Although the plaintiffs owned companies during the relevant period, they had limited
       involvement in those companies. They also controlled a foundation that made charitable
       donations in both Florida and Illinois, but Mr. Cain was shifting the contributions to focus
       more on Florida charities.
¶ 10       After considering the parties’ cross-motions for summary judgment based on these
       stipulated facts, the circuit court ruled that the plaintiffs were “mere seasonal visitors,” not
       residents, of Illinois. Accordingly, the circuit court granted the plaintiffs’ motion for
       summary judgment and denied the defendants’ cross-motion. Because there were other
       matters pending at the time, including claims for discovery sanctions against the defendants,
       the circuit court entered a finding that there was no just reason to delay enforcement or
       appeal of its summary judgment order. See Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010). The
       defendants now appeal.


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¶ 11       On appeal, the defendants argue that the circuit court erred in granting the plaintiffs’
       motion for summary judgment and ruling that they did not owe Illinois income tax from 1996
       through 2004. “Summary judgment is proper where ‘the pleadings, depositions, and
       admissions on file, together with the affidavits, if any, show that there is no genuine issue as
       to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ”
       Empress Casino Joliet Corp. v. Giannoulias, 231 Ill. 2d 62, 68-69, 896 N.E.2d 277 (2008)
       (quoting 735 ILCS 5/2-1005(c) (West 2000)). “We review the circuit court’s grant of
       summary judgment de novo.” Empress Casino, 231 Ill. 2d at 69.
¶ 12       The parties spend some effort disputing the burden of proof applicable to the plaintiffs
       in this case. The dispute, however, is somewhat misdirected. “[T]he term ‘burden of proof’
       encompasses both the burden of producing evidence that will satisfy a judge of the existence
       of an alleged fact and the burden of persuading the trier of fact that the alleged fact is true.”
       Franciscan Sisters Health Care Corp. v. Dean, 95 Ill. 2d 452, 462, 448 N.E.2d 872 (1983).
       Here, there are no disputed facts. The parties stipulated to all the relevant facts and submitted
       the matter to the court for a legal decision. To the extent the stipulated facts establish the
       plaintiffs’ change of residence as a matter of law, the plaintiffs have carried any burden of
       proof assigned to them. Thus, this burden-of-proof question is no more than a reframing of
       the real issue on appeal: whether, under the stipulated facts, the plaintiffs were obligated to
       pay Illinois income tax from 1996 through 2004. We address that issue now.
¶ 13       Section 201(a) of the Illinois Income Tax Act (Act) (35 ILCS 5/201(a) (West 2010))
       imposes an income tax “on the privilege of earning or receiving income in or as a resident
       of this State.” The parties focus their arguments on the question of whether the plaintiffs
       were Illinois residents during the relevant time period. Although there are many Illinois
       decisions defining the concept of residency in several different contexts, those decisions are
       not controlling here. As explained in the Department’s regulations related to the Act, “[t]he
       term ‘resident’ is defined differently for different purposes. For example, an individual may
       be a ‘resident’ for Illinois income tax purposes but not a ‘resident’ eligible to vote.” 86 Ill.
       Adm. Code 100.3020(i) (2012).
¶ 14       In lieu of citing unrelated case law, the parties rely primarily on the controlling statutes
       and regulations. The first of those statutes, section 1501(a)(20)(A) of the Act, defines the
       word “resident” as “an individual (i) who is in this State for other than a temporary or
       transitory purpose during the taxable year; or (ii) who is domiciled in this State but is absent
       from the State for a temporary or transitory purpose during the taxable year.” 35 ILCS
       5/1501(a)(20)(A) (West 2010). The Act further explains the term “resident” in section
       1501(a)(17), which defines the term “part-year resident” as follows:
           “The term ‘part-year resident’ means an individual who became a resident during the
           taxable year or ceased to be a resident during the taxable year. Under Section
           1501(a)(20)(A)(i) residence commences with presence in this State for other than a
           temporary or transitory purpose and ceases with absence from this State for other than
           a temporary or transitory purpose. Under Section 1501(a)(20)(A)(ii) residence
           commences with the establishment of domicile in this State and ceases with the
           establishment of domicile in another State.” 35 ILCS 5/1501(a)(17) (West 2010).


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¶ 15       The Department’s regulations expound on these definitions of “resident”:
           “The purpose of the general definition is to include in the category of individuals who
           are taxable on their entire net income, regardless of whether derived from sources within
           or without Illinois, all individuals who are physically present in Illinois enjoying the
           benefit of its government, except those individuals who are here temporarily, and to
           exclude from this category, all individuals, who, although domiciled in Illinois, are
           outside Illinois for other than temporary and transitory purposes, and, hence, do not
           obtain the benefit of Illinois government. If an individual acquires the status of a resident
           by virtue of being physically present in Illinois for other than temporary or transitory
           purposes, he remains a resident even though temporarily absent from Illinois. If,
           however, he leaves Illinois for other than temporary or transitory purposes, he thereupon
           ceases to be a resident. If an individual is domiciled in Illinois, he remains a resident
           unless he is outside Illinois for other than temporary or transitory purposes.” 86 Ill. Adm.
           Code 100.3020(b).
¶ 16       Under the above statutory and regulatory language, individuals are considered Illinois
       residents if they are present in the state for other than a “temporary or transitory purpose” or
       are “domiciled” in Illinois but leave for a temporary or transitory purpose. 35 ILCS
       5/1501(a)(20)(A) (West 2010). If individuals leave the state for other than a temporary or
       transitory purpose, or establish domicile elsewhere, they cease to be Illinois residents. 35
       ILCS 5/1501(a)(17) (West 2010). The plaintiffs here were admittedly Illinois residents prior
       to their move to Florida in 1995. The questions for us are whether their move to Florida
       constituted a change in domicile or a departure from Illinois for “other than a temporary or
       transitory purpose” so that they lost their Illinois residency, and, conversely, whether their
       periodic returns to Illinois were for “other for a temporary or transitory purpose” so that they
       should be classified as Illinois residents.
¶ 17       We begin by examining whether the plaintiffs can be said to have changed their domicile
       to Florida. Although the Act does not define the term “domicile,” the Department’s
       regulations do:
           “Domicile has been defined as the place where an individual has his true, fixed,
           permanent home and principal establishment, the place to which he intends to return
           whenever he is absent. It is the place in which an individual has voluntarily fixed the
           habitation of himself and family, not for a mere special or limited purpose, but with the
           present intention of making a permanent home, until some unexpected event shall occur
           to induce him to adopt some other permanent home. Another definition of ‘domicile’
           consistent with the above is the place where an individual has fixed his habitation and
           has a permanent residence without any present intention of permanently removing
           therefrom. An individual can at any one time have but one domicile. If an individual has
           acquired a domicile at one place, he retains that domicile until he acquires another
           elsewhere. Thus, if an individual, who has acquired a domicile in California, for
           example, comes to Illinois for a rest or vacation or on business or for some other purpose,
           but intends either to return to California or to go elsewhere as soon as his purpose in
           Illinois is achieved, he retains his domicile in California and does not acquire a domicile
           in Illinois. Likewise, an individual who is domiciled in Illinois and who leaves the state

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           retains his Illinois domicile as long as he has the definite intention of returning to Illinois.
           On the other hand, an individual, domiciled in California, who comes to Illinois with the
           intention of remaining indefinitely and with no fixed intention of returning to California
           loses his California domicile and acquires an Illinois domicile the moment he enters the
           state. Similarly, an individual domiciled in Illinois loses his Illinois domicile:
                    1) by locating elsewhere with the intention of establishing the new location as his
                domicile, and
                    2) by abandoning any intention of returning to Illinois.” 86 Ill. Adm. Code
                100.3020(d).
¶ 18       As the defendants observe in their brief, this definition of “domicile” closely tracks the
       definition Illinois law ascribes the term generally. See, e.g., Viking Dodge Inc. v. Hoffman,
       147 Ill. App. 3d 203, 205, 497 N.E.2d 1346 (1986) (“The four elements required for a change
       of domicile are physical abandonment of the first domicile; an intent not to return to the first
       domicile; physical presence in the new domicile; and an intent to make that one’s
       domicile.”). Here, there is no dispute that, in 1995, the plaintiffs physically left their Illinois
       home, renounced their Illinois residency, physically moved to Florida, and declared Florida
       their domicile. The difficulty comes in determining whether the plaintiffs “abandon[ed] any
       intention of returning” to their Illinois home.
¶ 19       After their move, the plaintiffs split their time roughly equally between the two states.
       Thus, in some sense, the plaintiffs have maintained an intent to return to both Illinois and
       Florida for approximately half of their time throughout the relevant period. However, as the
       regulations explain, individuals may have only one domicile, and none of the parties propose
       that the plaintiffs’ domicile alternated between the two states. Accordingly, this concept of
       “intent to return” cannot govern our result. Instead, we rely on the concept of domicile as an
       intended permanent home (and of “return” as a permanent, indefinite, or lengthy return). In
       that sense, the plaintiffs chose Florida as their domicile. Although they maintained contacts
       and memberships (and real property holdings) in Illinois after their 1995 move, the plaintiffs
       changed their voter registrations to Florida, paid Florida income taxes, obtained residency
       cards and drivers’ licenses in Florida, and even filed a declaration of their Florida residency.
       Thus, the plaintiffs’ intent is quite clear: they wished to establish Florida as their permanent
       residence in 1995, even though they planned to keep ties in Illinois and have regular seasonal
       visits. That is, the plaintiffs intended to live in Florida for half the year and visit Illinois, not
       the other way around.
¶ 20       Our conception of “domicile” finds harmony with the regulatory explanation of the other
       major component of a residency analysis under the Act: the idea of individuals’ presence in,
       or departure from, the state being for a “temporary or transitory purpose.” The Department’s
       regulations define this phrase at some length:
           “Whether or not the purpose for which an individual is in Illinois will be considered
           temporary or transitory in character will depend upon the facts and circumstances of each
           particular case. It can be stated generally, however, that if an individual is simply passing
           through Illinois on his way to another state, or is here for a brief rest or vacation, or to
           complete a particular transaction, or perform a particular contract, or fulfill a particular


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           engagement, which will require his presence in Illinois for but a short period, he is in
           Illinois for temporary or transitory purposes, and will not be a resident by virtue of his
           presence here. If, however, an individual is in Illinois to improve his health and his
           illness is of such a character as to require a relatively long or indefinite period to
           recuperate, or he is here for business purposes which will require a long or indefinite
           period to accomplish, or is employed in a position that may last permanently or
           indefinitely, or has retired from business and moved to Illinois with no definite intention
           of leaving shortly thereafter, he is in Illinois for other than temporary or transitory
           purposes, and, accordingly, is a resident taxable upon his entire net income even though
           he may also maintain an abode in some other state.” 86 Ill. Adm. Code 100.3020(c).
¶ 21       This prefatory portion of the regulatory definition provides us little guidance. The
       plaintiffs’ presence in Illinois was not “simply passing through ***, here for a brief ***
       vacation, or to complete a particular transaction,” or the like, nor was their presence “long
       or indefinite” or “permanent[ ] or indefinite[ ].” 86 Ill. Adm. Code 100.3020(c). The
       regulations follow, however, with several helpful illustrations:
                “1) Example 1. X is domiciled in Fairbanks, Alaska, where he had lived for 50 years
           and had accumulated a large fortune. For medical reasons, X moves to Illinois where he
           now spends his entire time, except for yearly summer trips of about three or four months
           duration to Fairbanks. X maintains an abode in Illinois and still maintains, and occupies
           on visits there, his old abode in Fairbanks. Notwithstanding his abode in Fairbanks,
           because his yearly sojourn in Illinois is not temporary or transitory, he is a resident of
           Illinois, and is taxable on his entire net income.
                     AGENCY NOTE: If in the foregoing example, the facts are reversed so that
                Illinois is the state of original domicile and Alaska is the state in which the person is
                present for the indicated periods and purposes, X is not a resident of Illinois within
                the meaning of the law, because he is absent from Illinois for other than temporary
                or transitory purposes.
                2) Example 2. Until the summer of 1969, Y admitted domicile in Illinois. At that
           time, however, to avoid the Illinois income tax, Y declared himself to be domiciled in
           Nevada, where he had a summer home. Y moved his bank accounts to banks in Nevada,
           and each year thereafter spent about three or four months in Nevada. He continued to
           spend six or seven months of each year at his estate in Illinois, which he continued to
           maintain, and continued his social club and business connections in Illinois. The months
           not spent in Nevada or Illinois he spent traveling in other states. Y is a resident of Illinois
           and is taxable on his entire net income, for his sojourns in Illinois are not for temporary
           or transitory purposes.
                     AGENCY NOTE: If, in the foregoing example, the facts are reversed so that
                Nevada is the state of his original domicile, and the state in which the person is
                present for the indicated periods and purposes, Y is not a resident of Illinois within
                the meaning of the law because he is absent from Illinois for other than temporary or
                transitory purposes.
                3) Example 3. B and C, husband and wife, domiciled in Minnesota where they


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            maintain their family home, come to Illinois each November and stay here until the
            middle of March. Originally they rented an apartment or house for the duration of their
            stay here but three years ago they purchased a house here. The house is either rented or
            put in the charge of a caretaker from March to November. B has retired from active
            control of his Minnesota business but still keeps office space and nominal authority in
            it. He belongs to clubs in Minnesota, but to none in Illinois. He has no business interests
            in Illinois. C has little social life in Illinois, more in Minnesota, and has no relatives in
            Illinois. Neither B nor C is a resident of Illinois. The connection of each to Minnesota,
            the state of domicile, in each year is closer than it is to Illinois. Their presence here is for
            temporary or transitory purposes.
                      AGENCY NOTE: If, in the foregoing example, the facts are reversed so that
                 Illinois is the state of domicile and B and C are visitors to Minnesota, B and C are
                 residents of Illinois.” 86 Ill. Adm. Code 100.3020(c).
¶ 22        The most challenging aspect of this case is the fact that the plaintiffs split their time
       roughly equally between Florida and Illinois. However, the above examples make clear that
       this level of time-splitting does not render individuals’ presence in Illinois other than
       “temporary or transitory.” In the first two examples above, the hypothetical individuals’
       three- to four-month yearly trips to another state do not affect their residency, because other
       factors regarding their intent are considered controlling. The third example is particularly
       telling. In this example, the hypothetical individuals spend over four months in Illinois and
       actually own a home in Illinois, but are nonetheless considered Minnesota residents because
       “[t]he connection of each to Minnesota *** in each year is closer than it is to Illinois.” The
       same holds true here. Although the plaintiffs maintain some Illinois ties, including social
       club memberships and the continued ownership of their longtime home, the stipulated facts
       demonstrate their much stronger connection to Florida. As noted, they spend more money
       on Florida social clubs, hold drivers’ licenses and residency cards in Florida, and vote in
       Florida. Mr. Cain uses a Florida telephone number. Although the ties between Illinois and
       their companies continue, the plaintiffs have distanced themselves from their companies.
       Likewise, although the plaintiffs’ charitable foundation is still involved in Illinois causes, the
       plaintiffs have begun to shift its focus to Florida. The plaintiffs also spend more money in
       Florida than in Illinois, and they have purchased burial plots in Florida. All of these facts
       demonstrate the plaintiffs’ much stronger connection to Florida than to Illinois. Based on the
       examples given in the regulations’ definition of “temporary and transitory purpose,” the
       regularity and duration of the plaintiffs’ visits to Illinois do not affect their residency status
       in the face of this disparity in connections.
¶ 23        One last portion of the Department’s regulations lends further support to our conclusion
       that the plaintiffs were not Illinois residents for purposes of the Act during the relevant
       period. After laying out the above definitions, the Department’s regulations list types of
       evidence that may help to determine whether an individual is an Illinois resident. Those types
       of evidence include evidence of “voter registration, automobile or drivers license registration,
       filing an income tax return as a resident of another state, home ownership or rental
       agreements, club and/or organizational memberships and participation, telephone and/or
       other utility usage over a duration of time.” 86 Ill. Adm. Code 100.3020(g)(1). Because we

                                                   -8-
       have already described the plaintiffs’ actions at length, we will not repeat those facts to
       discuss each of these types of evidence individually. Instead, we note that the balance of
       these factors leads us to conclude that, for purposes of the Act, the plaintiffs were residents
       of Florida, and not Illinois, during the relevant time period. For that reason, and for the
       reasons stated above, we reject the defendants’ argument that the circuit court erred in
       granting summary judgment to the plaintiffs.
¶ 24       Although the plaintiffs have filed a cross-appeal, their cross-appeal is devoted to
       providing another, separate basis for excusing them from Illinois income tax for the relevant
       time period. In their brief, the plaintiffs explain that their cross-appeal “will be unnecessary
       to decide if [we] affirm[ ]” the circuit court’s judgment. Because we do, indeed, affirm the
       circuit court’s judgment, we dismiss the cross-appeal as moot.
¶ 25       For the foregoing reasons, we affirm the judgment of the circuit court and dismiss the
       plaintiffs’ cross-appeal.

¶ 26      Affirmed; cross-appeal dismissed.




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