HomeMy WebLinkAboutCarol Surface Determination
NANTUCKET LAND BANK COMMISSION
22 Broad Street
Nantucket, Massachusetts, 02554
DECISION AND DETERMINATION
In the matter of:
Carol A Surface ("Surface"),
pursuant to Notice of Assessment dated November 15, 2006, regarding
Premises at 29 Washam an Avenue (Assessor's Map 55 Parcel 578), Nantucket,
Massachusetts.
FACTS
1. Pursuant to the requirements of the 1983 Acts and Resolves of the Massachusetts General
Court, Chapter 669, as amended (the "Act"), Section 14(a), the Nantucket Islands Land Bank
Commission (the "Land Bank") hereby enters this determination and decision, after a hearing
held 4:00 P.M., Tuesday, January 27,2007, and continued to 4:00 P.M., Tuesday, February 13,
2007, at the Land Bank Meeting Room, 22 Broad Street, Nantucket. This determination and
decision is based upon the Commission's record in this matter, including evidence and
documents provided at the hearing.
2. Surface is the record owner of the Premises by virtue ofthe Notice of Lease recorded in
Nantucket Registry of Deeds Book 885 Page 211 recorded April 27, 2004, indicating that she
paid $850,000 for the Premises. This transfer (the "Transfer"), which is Land Bank Transfer No.
24281, was reported as being eligible for Exemption M, and is the subject of this Decision. (See
Exhibit A)
3. At the time of the Transfer, Surface reported her address to be 41C Stubbs Road, Flat 33-
A, Hong Kong. (See Exhibit A) The address at which Land Bank mail currently reaches her is
8 Pak Pat Shan Road, Le Palais #7, Tai Tam, Hong Kong. (See Exhibits Rand T, among others.)
4. On May 3,2004, the Land Bank sent Surface a letter (Exhibit B) confirming her claim of
the M Exemption in connection with the transfer, stating in part:
The Nantucket Islands Land Bank Commission is happy that you have been able to take
advantage of the 'M' exemption, which was added to the Nantucket Islands Land Bank
Act to help reduce the cost to first-time home buyers breaking into the home ownership
market with the intent ofbecomingjull time Nantucket residents. (Emphasis added.)
5. Commencing on April 27, 2006, the Land Bank began contacting Surface to obtain
information indicating whether or not she qualified for the M Exemption, since public records
reviewed by Land Bank staff were ambiguous on the question (See Exhibit D.) Months of
inquiries produced no response from Surface, except a copy of her Massachusetts driver's license
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Exhibit H. Correspondence from the Nantucket Land Bank Commission dated July 21,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking additional
information regarding her current domicile;
Exhibit I, Correspondence from the Nantucket Land Bank Commission dated July 21,
2006, (without attachments) to Carol A. Surface at The Summit, Flat 33A, Hong Kong
City, Hong Kong seeking additional information regarding her domicile;
Exhibit J, Undated correspondence from Carol A. Surface to the Nantucket Land Bank
Commission including envelope without a return address, postmarked Hong Kong and
Massachusetts driver's license of Carol Anne Surface;
Exhibit K Correspondence from the Nantucket Land Bank Commission dated August
15, 2006, to Carol A. Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong
seeking additional documentation;
Exhibit L, Correspondence from the Nantucket Land Bank Commission dated August
15,2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking
additional documentation;
Exhibit M, Correspondence from the Nantucket Land Bank Commission dated October
16,2006, to Carol A. Surface at 29 Washam an Avenue, Nantucket, MA (Cc: Carol A
Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong) seeking additional
documentation;
Exhibit No. Correspondence from the Nantucket Land Bank Commission dated October
16, 2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA returned
unopened and postal stamped "UNCLAIMED".
Exhibit 0, Notice of Assessment against Transfer No. 24281 from the Nantucket Islands
Land Bank Commission dated November 15, 2006, to Carol A. Surface at 29 Washam an
Avenue, Nantucket, MA and attached cover from Kenneth W. Holdgate, Jr., Chairman,
Nantucket Islands Land Bank Commission;
Exhibit p, Notice of Assessment against Transfer No. 24281 from the Nantucket Islands
Land Bank Commission dated November 15, 2006, to Carol A. Surface at 29 Washam an
Avenue, Nantucket, MA returned unopened and postal stamped "UNCLAIMED";
Exhibit Q, Correspondence from Emily Avery dated December 1, 2006, to Kenneth W.
Holdgate, Jr., Chairman, Nantucket Islands Land Bank Commission, requesting a hearing
on Land Bank Notice of Assessment dated November 15,2006;
Exhibit R, Undated correspondence received by the Nantucket Land Bank on December
8, 2006, from Carol A. Surface to the Nantucket Land Bank Commission including
envelope postmarked Hong Kong with return address listed as 8 Pak Pat Shan Road,
LePalais #7, Tai Tam, Hong Kong, and Massachusetts 2005 Nonresident/Part-Year
Resident Income Tax Return (Form 1-NR/PY) of Carol Anne Surface;
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the transfer the purchaser's actual domicile within two years of the time of transfer; . .
(Emphasis added.)
The preamble of said Section 12 places the burden of proof on Surface to show that the
Transfer qualifies for the claimed exemption.
As stated in the Act, the M Exemption is available only to a person who has established
his or her "actual domicile" in Nantucket within two years after purchasing a property. Under
Section 4.16 (9) of the Land Bank Rules and Regulations effective July 1,2002, as amended,
(the "Regulations"), "Domicile shall be determined on a case by case basis using the standards
and tests applied by Massachusetts courts in determining domicile."
No evidence has come to our attention indicating that the Transfer may not satisfy the
requirements for the M Exemption, except the question whether the facts and circumstances
indicate that Surface established the Premises as her "actual domicile" by April 27, 2006.
Consequently, this Decision focuses solely on the domicile question and does not address the
other requirements for the M Exemption.
The Massachusetts Supreme Judicial Court has stated:
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.
Thorndike v. City of Boston, 42 Mass. 242 (1840) as quoted in Bailey and Van Dorn,
Massachusetts Practice Vol. 4 Section 17: 1.
With reference to the Supreme Judicial Court's decision in Hershkoffv. Board of
Registrars of Voters of Worcester, 366 Mass. 570, 321 N.E.2d 656 (1974), Bailey and Van Dorn,
Massachusetts Practice Vol. 4 Section 17:1 provides this summary regarding determination of
domicile:
The considerations in determining the domicile or a change of domicile of a taxpayer. . .
may be summarized as follows:
1. Each individual has one domicile. It may be a domicile of origin (birth), a domicile
by operation of law (acquired by wife on marriage) or a domicile of choice
(accomplished by a change of residence).
2. Each individual retains his or her existing domicile until a new domicile has been
established at another place.
3. A new domicile may be acquired only by (a) abandoning the present domicile, (b)
establishing a physical residence at a new place and (c) intending to make the new
residence a home permanently or for an indefinite time, with no present intention of
returning to the previous home.
We apply these basic concepts to the facts and circumstances which have come to our
attention regarding Surface and her use of the Premises. In addition, we note that the Act states
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Boat Ownership Registered
In Nantucket (Exhibits S, Y)
Shellfish License
Resident License (Exhibits S, Y)
Steamship Authority
Enrolled in Islander Program (Exhibits S, Y)
Dates Physically Present
14-18 days stated at hearing; 3-4 weeks stated in Exhibit Z
Rental of the Premises
A "few" weeks (Exhibit Z)
Other Residences Owned
None (Exhibit Z)
Prior Residences
Connecticut and Michigan (Exhibit Z)
Prior/Current Domicile
Not Known
Phone Listing
None (Exhibit D) (Reason cited for no phone listing is that
Surface is a psychologist, but there is no indication that she
conducts a practice as a psychologist on Nantucket.)
Real Estate Tax Bills
Hong Kong address provided to Assessor (Exhibits C, D)
Family/Social Connections
None Known
The numerous factors listed certainly indicate that Surface has established a residence on
Nantucket. She has not met the burden of establishing that Nantucket is her "actual domicile",
since most of the actions taken to establish the purported domicile were accomplished within a
short period in 2004 (driver's license, voter registration, shellfish license, boat registration).
Thereafter, Surface has only intermittently been to Nantucket. She has shown little regard for
receipt of mail sent to the Premises and has no phone listing there, indicating a lack of social
connection to Nantucket. Of particular concern is the fact that Surface's physical presence on
Nantucket has been insufficient to create an "actual", or full time, domicile.
Our decision is strongly influenced by the statement of no domicile implied by Surface's
decision to file a non-resident 2005 Massachusetts income tax return. Massachusetts statute
requires a resident form of tax return to be filed by a "resident" as defined in Massachusetts
General Laws Chapter 62 Section 1 (t). That definition says in pertinent part:
(f) "Resident" or "inhabitant", (1) any natural person domiciled in the commonwealth, or
(2) any natural person who is not domiciled in the commonwealth but who rnaintains 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. . .(Emphasis
added.)
In light of the quoted definition, by electing to file a non-resident Massachusetts income
tax return, Surface indicated that she was NOT domiciled in Massachusetts in 2005. Based on
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(Exhibit J). During that period six of seven mailings to the Premises were returned "Unclaimed"
(Testimony of Craig Hunter at the hearing).
6. On November 15, 2006, fees were assessed regarding the Transfer as not qualifying for
the M Exemption. (Exhibits 0 and P)
7. By letter dated December 1, 2006, from Attorney Emily Avery (Exhibit Q), Surface
requested a hearing regarding the assessment. Hearing was scheduled for January 9,2007
(Exhibit T) and by agreement of the parties, the hearing was deferred to January 27,2007, in
order to allow for an exchange of questions and information (Exhibit V) At the hearing on
January 27,2007, it became apparent that Surface wished to provide additional information, so
the parties agreed on the record at the hearing to continue the hearing to February 13, 2007.
8. By letter dated February 1, 2007, from Attorney Emily Avery to Kenneth Holdgate, Jr.,
Chairman, Surface responded to a number of factual questions raised at the January 27 portion of
the hearing. (Exhibit Z.)
9. At the hearing, the following exhibits were made a part of the Commission's official
record without objection by Surface and are incorporated herein by reference:
Exhibit A, Transfer Documents Record No. 24281 dated April 27, 2004, including Form
A and Notice of Lease from The Nashaquisset Cooperative, Inc. to Carol A. Surface;
Exhibit B, Correspondence from the Nantucket Land Bank Commission dated May 3,
2004, to Carol A. Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong re-
stating the requirements of the "M" exemption;
Exhibit C, Town of Nantucket Assessor's printout for 29 Washam an Avenue (Map 55,
Parcel 578);
Exhibit D, Correspondence from the Nantucket Land Bank Commission dated April 27,
2006, to Carol A. Surface at 29 Washam an Avenue, Nantucket, MA seeking additional
information regarding her domicile;
Exhibit E, Correspondence from the Nantucket Land Bank Commission dated June 28,
2006, to Carol A. Surface at The Summit, Flat 33A, Hong Kong City, Hong Kong
seeking additional information regarding her domicile;
Exhibit F, Correspondence from the Nantucket Land Bank Commission dated June 28,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA seeking additional
information regarding her domicile;
Exhibit G, Correspondence from the Nantucket Land Bank Commission dated June 28,
2006, to Carol A. Surface at 29 Washaman Avenue, Nantucket, MA returned unopened
and postal stamped "UNCLAIMED".
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Exhibit S, Correspondence from Emily Avery dated December 13, 2006, to Craig Hunter
(Office Administrator, Nantucket Land Bank Commission);
Exhibit T, Correspondence from the Nantucket Land Bank Commission dated December
15,2006, notifying Emily Avery (Cc: Carol A. Surface, 8 Pak Pat Shan Road, LePalais
#7, Tai Tam, Hong Kong) of the scheduled hearing date;
Exhibit U, Email string including (i) correspondence from Valerie Swett to Emily Avery
dated December 15, 2006, (9:46 AM) and (ii) correspondence from Emily Avery to
Valerie Swett dated December 15,2006, (9:51 AM);
Exhibit V, Correspondence from Emily Avery dated January 9, 2007, to Craig Hunter
(Office Administrator, Nantucket Land Bank Commission) asking the Commission to
postpone the hearing on Nantucket Islands Land Bank Notice of Assessment against
Transfer No. 24281 until January 23,2007;
Exhibit W, Correspondence from the Nantucket Land Bank Commission dated January
11,2007, notifying Emily Avery of the re-scheduled hearing date;
Exhibit X, Email string including (i) correspondence from Valerie Swett to Emily Avery
dated January 22,2007, (12: 17 PM) and (ii) correspondence from Emily Avery to Valerie
Swett dated January 22,2007, (1:00 PM);
Exhibit Y, Correspondence from Emily Avery dated January 23,2007, to Kenneth W.
Holdgate, Jr., Chairman, Nantucket Islands Land Bank Commission.
Exhibit Z. Correspondence from Emily Avery dated Feburary 1,2007, to Kenneth W.
Holdgate, Jr., Chairman, Nantucket Islands Land Bank Commission.
10. Surface has failed to discharge the Land Bank fee assessed in the Notice of Assessment
in the total amount of$4,000.00, plus penalty and interest running from April 27, 2004, the date
of transfer.
FINDINGS
Based on the record before the Commission and the hearing, the Commission finds as
follows:
Surface claimed that the Transfer was exempt from a Land Bank fee pursuant to the "M"
Exemption, which is created by Section 12(m) of the Act, which at the time of the Transfer
provided in part:
The first $200,000 of the purchase price of a transfer made to a purchaser who, or whose
spouse at the time of transfer, has at no time prior to said transfer owned or possessed any
real property interest as defined in section one either within or without Nantucket county;
provided that the purchaser shall make the real property interest which is the subject of
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the person claiming an M Exemption must make a property his or her "actual domicile". We
understand the word "actual" is used in this phrase to add a requirement of physical presence to
the usual judicial meaning of "domicile". As stated in Exhibit B (the Land Bank's standard form
letter to people claiming the M Exemption), the expectation is that recipient of the exemption
will become a "full time resident" of Nantucket.
Counsel for Surface asks us to limit our analysis to a particular list of factual
circumstances enumerated in Cajjjm v. Cajjjm, 441 Mass. 487, 806 N.E. 2d 415 (2004), a copy of
which is included in Exhibit Y. We decline to do so for several reasons. First, the domicile issue
in Caffyn was decided under the Massachusetts jurisdictional criteria for a divorce action
(M.G.L. Chapter 208), whereas the Transfer pertains to the assessment ofa fee which is in the
nature of a tax. It is more appropriate to look at precedent and principles applicable to
determination of domicile for taxation purposes. Second, the determination of domicile depends
on the facts and circumstances of each case and cannot be limited to a list of particular actions.
Third, the wife in Caffyn (the person whose domicile was at issue in the case) had substantial
social and family ties to Massachusetts. She was born in the state and her parents continued to
reside here. When she and her children first arrived, they resided with her parents. Her children
were enrolled in Massachusetts schools. In short, her social and family contacts with
Massachusetts were deep and strong. We have been provided no evidence that Surface has any
such ties in Nantucket.
Our review of the evidence presented discloses the following information regarding data
frequently analyzed in determining the domicile of an individual:
Activity
Surface Data
Driver's License
Massachusetts Driver's License Issued June 2004, showing
the Premises as address (Exhibits J, Y)
2005 Massachusetts Tax Return
Non-Resident Form Filed, showing taxpayer's Hong Kong
address (Exhibit R)
2005 Federal Tax Return
Requested but not supplied (Exhibit U)
Children's School Attendance
No Children (Exhibit Z)
Mail Delivery to Premises
No systematic method for receiving mail addressed to
Premises (Hearing Testimony about Land Bank mail
returned, Exhibit Z)
V oter Registration
Registered in Nantucket 2004 (Exhibits S, Y)
Current Town Census
Not received or completed (will result in voter registration
being dropped) (Exhibit Z)
Primary Physician
Located in Nantucket (Exhibits S, Y)
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this statement, we conclude that Surface did not establish her "actual domicile" at the Premises
prior to April 27, 2006, and therefore the Transfer was not eligible for the M Exemption.
DETERMINA nON
ACCORDINGLY, the Commission hereby determines as follows regarding the Transfer:
Transfer No. 24281 is hereby determined to be a non-exempt transfer. The Land Bank
fee assessed November 15, 2006 (Exhibits 0 and P) is hereby affirmed at 2% of$200,000, for a
total fee of $4,000. Interest and penalties as originally assessed shall run from the date of
transfer, being April 27, 2004.
Bank.
We reserve the right to hereafter revise said assessment in the best interests of the Land
Surface has the rights set forth in the Act, for further proceedings in connection with this
Decision and Determination.
WITNESS our hands and seals this 13th day of February, 2007.
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