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Commissioner, 44 B.T.A. 835 (1941); In re Estate of Miles, 72
Cal. App. 2d 336, 341 (1945). Under California law, the burden
of proving that property is separate rests on the party making
such assertion. See v. See, supra.
With respect to one's domicile, once established it is
presumed to continue until it is shown to have been superseded by
a new domicile. Myers v. Commissioner, 11 T.C. 447, 463 (1948);
Whitmore v. Commissioner, supra. In order to change one's place
of domicile, for community property purposes, one must form an
intent to remain in the new location permanently or indefinitely.
Id. The determination of an individual's domicile is primarily a
question of fact. Niki v. United States, 484 F.2d 95 (9th Cir.
1973) (per curiam); Kamikido v. Commissioner, supra. Although we
consider statements of intention made by an individual with
respect to his or her domicile, we give such statements slight
weight when they conflict with an individual's actions. Texas v.
Florida, 306 U.S. 398, 425 (1939). Where there is any doubt as
to one's domicile, the domicile of origin prevails. Whitmore v.
Commissioner, supra at 297.
Under California law, the fact that spouses live apart for a
period of time does not affect the allocation of income.
Sidebotham v. Robison, 216 F.2d 816 (9th Cir. 1954). Only where
spouses live separate and apart with the intent of ending the
marriage are the earnings of each spouse considered separate
property, rather than community property. Cal. Civ. Code sec.
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