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Wednesday, January 26, 2011

The legal distinction between domicile and residence

The legal distinction between domicile and residence
Maksym v Board of Election Commissioners, appeal from 2010 COEL 020, #1-1-0033

Rahm Emanuel’s claim that he is eligible to run for the office of Mayor for the City of Chicago will be considered by the Illinois State Supreme Court shortly. Essentially the case will decide if the term “residence” as used in §3.1-10-5(a) of the City’s Municipal Code means “domicile” or something other than "domicile."

In the words of the Appellate Court of Illinois, First Division:

As noted, the operative language at issue requires that a potential candidate have "resided in" the municipality for one year next preceding the election. In its verb form, "reside" generally means, among other things, "to dwell permanently or continuously," or to "have a settled abode for a time." Webster’s Third New International Dictionary 1931 (1993). The word is considered to be synonymous with "live, dwell, sojourn, lodge, stay, put (up), [and] stop," but it "may be the preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode." Webster’s Third New International Dictionary 1931 (1993).

This suggests that Webster's Third may have created some confusion insofar as the traditional legal distinctions between “domicile” and “residence” are concerned.

Perhaps the provisions set out in Illinois Title 86: Revenue, Chapter I: Department of Revenue, Part 100 Income Tax, Section 100.3020 Resident (IITA Section 301) may be illuminating in this regard.

Section 100.3020 Resident (IITA Section 301) states that the term "resident" means an individual who is in Illinois for other than a temporary or transitory purpose during the taxable year or who is domiciled in Illinois but is absent from Illinois for a temporary or transitory purpose during the taxable year. The Title also states that “If an individual is domiciled in Illinois, he remains a resident unless he is outside Illinois for other than temporary or transitory purposes.

The term “domicile,” states the statute, “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.

Examples provided by the Illinois Department of Revenue distinguishing between residence and domicile include the following:

1. 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.

2. 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.

3. 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 retains his Illinois domicile as long as he has the definite intention of returning to Illinois.

4. 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.”

A similar issue was considered by New York State's Court of Appeals in Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385.*

In Longwood the court said that:

On this appeal, we decide which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother. The question is governed by Education Law §3202 (4) (a), and the outcome turns on where the children "resided" within the meaning of the statute.

Because the term is undefined, we must determine whether it means mere physical location or also includes an element of permanency. We hold that, under the statute, physical presence alone does not qualify as "residence," and therefore conclude that the Springs Union Free School District—the children's last permanent residence—is responsible for their instructional costs. "

The court explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

An early decision by the Illinois State Supreme Court is expected.

The Maksym decision by the Illinois Appellate Court is posted on the Internet at:

* The Longwood decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2004/2004_00962.htm

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