At issue is whether the couple were residents of the state those years under the legal definition of domicile.
In 1994, the couple received notice from the state they they owed $715,000 in income taxes for calendar years 1990, 1991 and 1992.
The couple appealed to the Board of Tax Appeals, asserting they were residents of and domiciled in Florida during those years and not subject to Louisiana income tax.
The BTA ruled the Vivianos were Louisiana residents for the purpose of tax determination.
They appealed to 27th Judicial District Court, where Judge Ellis Daigle in July 2011 reversed the BTA ruling, finding the couple were Florida residents during the years in question. The Department of Revenue appealed to the circuit court.
According to the Third Circuit ruling, the Vivianos claim that they purchased and moved into a condominium in Florida in 1989, and remained there throughout the years in dispute.
They introduced evidence that they registered to vote in Florida and actually voted, had a home with a homestead exemption in Florida and paid property taxes on that home, paid intangible property taxes in Florida, and received mail in Florida.
To support its assessment of taxes on the Vivianos as residents of Louisiana, the Department of Revenue introduced evidence that the Vivianos maintained their much-larger home in Opelousas and the homestead exemption thereon. Their young son was enrolled in school in Opelousas beginning in the fall of 1990 and throughout the remainder of the 1991 and 1992.
Viviano’s flight logs from the planes that he leased showed that the plane was in Louisiana far more often that it was in Florida. The vast bulk of the Vivianos’ mail was received in Opelousas, including mail from Florida. Mr. Viviano maintained his law office in Louisiana and operated several Louisiana corporations which the Vivianos owned.
He served as agent for service of process for many of these companies, and he signed annual reports listing his address as Opelousas. The Vivianos’ credit card statements and telephone bills also showed that the Vivianos were in Louisiana far more often than they were in Florida. The BTA discredited the testimony of Mr. Viviano that the family moved to Florida in 1989 to operate his blood plasma business and because his best friend had moved there.
The district court, after reviewing the evidence presented to the BTA, determined that the BTA committed manifest error. It found that the evidence supported the Vivianos’ claim that in 1989 they purchased a home in Destin and established their domicile there.
The district court also found that the Vivianos did not maintain a permanent place of abode in Louisiana. Finally, the district court found that the Department of Revenue did not prove that the Vivianos spent “in the aggregate more than six months of the taxable year” in Louisiana.
“Our review of the record convinces us that the BTA followed the applicable law and that its findings of fact, that Vivianos were domiciled in and were residents of Louisiana, were supported by the evidence. The district court, therefore, erred in reversing the BTA’s judgment. The Department of Revenue correctly assessed the Vivianos with individual income taxes in 1990, 1991, and 1992, and interest thereon, in the amount of $715,075,” the Third Circuit said.
Justice John Saunders, while agreeing with the finding, wrote that he felt Daigle correct in determining that the facts and record establish that the Vivianos’ domicile changed when they acquired a residence in Florida along with the intent to remain there indefinitely.