Carolyn Webb - Page 10

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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          presumed to continue until it is shown to have been superseded by           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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