CORBETT v. FRANCHISE TAX BOARD (1985)

INTRODUCTION

In this case we are called upon to determine whether respondents are liable as California residents for state income taxes on the whole of their income and whether Code of Civil Procedure section 1060.5 and Revenue and Taxation Code section 19081, under which they sought injunctive and declaratory relief from the tax, are unconstitutional and in conflict with article XIII, section 32, of the California Constitution. We affirm the judgment of the trial court which concluded respondents are not liable for the tax and that the statutes are not unconstitutional.

STATEMENT OF THE CASE

In a complaint filed in Los Angeles Superior Court, plaintiffs and respondents George T. Corbett and Annette Corbett (the Corbetts) sought declaratory and injunctive relief against defendant and appellant Franchise Tax Board, a subdivision of the State of California (the Board), contending the Board's personal income tax assessments against them for the years 1970, 1971, 1972 and 1973 were erroneous because they were not residents of California during those years.

Although the Corbetts filed nonresident tax returns for the tax years in question and paid California state income taxes on their income from California sources, the Board asserted the Corbetts should have filed resident tax returns and should have paid California income taxes on the whole of their income. The Board so contended notwithstanding that the Corbetts had filed Illinois resident tax returns and had paid Illinois resident taxes for those years.

After exhausting their administrative remedies before the Board and the State Board of Equalization, the Corbetts filed an action in the Superior Court for the County of Los Angeles, seeking a judicial determination of nonresidency, in accordance with the procedures set forth in Code of Civil Procedure section 1060.5 and Revenue and Taxation Code section 19081.

HISTORICAL FACTS

The Corbetts and the Board, through their respective counsel, stipulated to the following applicable facts:¹

The Corbetts were born, raised, married, and raised their own family, in Illinois.

In 1937, Mr. Corbett began working for George E. Corbett Boiler and Tank, Inc., an Illinois corporation (Corbett Boiler), which had been founded by his grandfather. During the ensuing years he became its president and major shareholder. In 1968 and 1969, he prepared his brother-in-law, Mr. George Quill, to assume the presidency of the company. In 1969, he resigned as president and sold his entire stock interest to Mr. Quill. Concurrently, he assumed the office of vice-president, and remained a member of the Board of Directors. Throughout the audit period of this case, he was consistently an employee of Corbett Boiler. When in Illinois, he inspected job sites, reviewed plans and blueprints, negotiated business and met with new clients. He kept current on boiler technology and attended contractors' association meetings in Illinois.

The Corbetts also were officers and directors of the Corbett Building Corporation, an Illinois corporation (Corbett Building), of which Mr. Corbett was president. They owned 82 percent of the shares of the corporation. Corbett Building owned industrial real estate, buildings, and vacant property, all located within the city of Chicago. Its business was the leasing of these properties to industrial concerns, including Corbett Boiler. As officers and directors of Corbett Building, both Mr. and Mrs. Corbett received yearly salaries from the corporation.

Over 95 percent of the Corbetts' income during the audit period was derived from their business interests and activities in Illinois. They had no business nor employment interests of any nature in California.

The Corbetts conduct almost all of their personal banking through the First National Bank of Chicago. All securities owned by the Corbetts are maintained in an agency account at that bank and are physically located there. They collect and deposit their income in Illinois. They had a small savings account and a checking account in Santa Barbara for small expenses and emergencies. The income from these California bank accounts was less than $300 per year.

The Corbetts' wills were prepared in Chicago; the wills, which are physically present there, recite the city of Chicago and the state of Illinois as the Corbetts' place of residence.

The Corbetts filed Illinois state resident income tax returns and paid the Illinois income tax applicable to Illinois residents. They filed California nonresident income tax returns and paid the California income tax applicable to nonresidents. Their Illinois address is shown as their permanent address on all of their state and federal tax returns. The tax returns are prepared in Illinois.

The Corbetts own and maintain a custom home in Chicago which they built more than 25 years ago. Their cemetery lots, voter registrations, family doctors, dentists, professional advisors, lawyers, bankers and accountants are all in Illinois.

The only real property interest the Corbetts have in California is a house in Santa Barbara, which they purchased in 1969 to provide accommodations during their visits to this State.

During the years in question, the Corbetts owned one car registered in Illinois and one which was registered in California. They both had Illinois driver's licenses. Mrs. Corbett also had a California driver's license for a portion of the audit period.

The Corbetts attended church services wherever they were in the world. They were members of and made donations to a church in Illinois. They made donations to a church they attended in Santa Barbara, although they were not members.

The Corbetts had many friends and family members in Illinois. In 1973 they celebrated their 25th wedding anniversary in Chicago with a party for over 150 guests. They also attended a number of other social events in the Chicago area.

The Corbetts joined the Montecito Country Club of Santa Barbara and frequently played golf there. Their other social activities in California consisted of visits with California relatives and attendance at occasional church functions. They enjoyed spending the winter season in sunny California and visiting their California relatives. For those reasons they stayed in California for lengthy periods during the audit years.

During the summer of 1972, while Mrs. Corbett was in California, she suffered a sudden and severe gall bladder attack. She was unable to return to Illinois for treatment by her regular physician. The operation caused her to remain in California for all of that summer and to curtail her travels in late 1972 and early 1973.

In each of the questioned years, the Corbetts spent less than nine months in California, ranging from six and one-half months in 1971 to eight and one-half months in 1973. When not present in California, they were generally at their house in Chicago.

ISSUES

1. Whether Code of Civil Procedure section 1060.5 and Revenue and Taxation Code section 19081, under which the Corbetts brought their action for declaratory and injunctive relief from California income tax assessments, are in conflict with article XIII, section 32, of the California Constitution.

2. Whether the Corbetts were residents of California during the audit years for purposes of the California Personal Income Tax Law.

DISCUSSION

I.Code of Civil Procedure section 1060.5 and Revenue and Taxation Code section 19081 are constitutional.

Appellant contends Code of Civil Procedure section 1060.5 and Revenue and Taxation Code section 19081 are unconstitutional in that they violate article XIII, section 32, of the California Constitution.

Section 32 provides: “No legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, with interest, in such manner as may be provided by the Legislature.”

Section 1060.5 of the Code of Civil Procedure, enacted in 1955 (Stats.1955, ch. 1555, § 1, p. 2834), forms part of the Declaratory Relief Act (Code Civ.Proc., §§ 1060-1062.5). Section 1060.5 permits any person claiming non-residence, for purposes of the Personal Income Tax Law (Rev. & Tax Code, §§ 17001 et seq.), to obtain a declaratory judgment regarding the fact of his or her residence by following the procedure set forth in Revenue and Tax Code section 19081.²

The Declaratory Relief Act was passed in 1921 (Stats.1921, ch. 463, § 1, p. 689). It was one of the first of its kind to appear in the United States. (See Harrison, California Legislation of 1921 Providing for Declaratory Relief (1921) 9 Cal.L.Rev. 359.) In 1923, a unanimous California Supreme Court held the Act constitutional. (Blakeslee v. Wilson (1923) 190 Cal. 479, 213 P. 495.) In 1942, in Hoyt v. Board of Civil Service Commrs. (1942) 21 Cal.2d 399, 132 P.2d 804, the Supreme Court held that Section 1060 authorized declaratory relief against state action. The Court held that, where no impairment of sovereignty would result, and where no special statute precluded suit against the sovereign, it would be presumed that the Legislature intended the section to apply to governmental action. (Id., at p. 403, see pp. 400-405, 132 P.2d 804.)

However, special statutes did preclude the use of declaratory judgments in tax disputes between individuals and the government. (See Casey v. Bonelli (1949) 93 Cal.App.2d 253, 208 P.2d 723; Lewis Eckert B. Co. v. Unemployment R. Com. (1941) 47 Cal.App.2d 844, 119 P.2d 227.) These special statutes were those that implemented³ article XIII, section 32, of the California Constitution⁴ and, in general, mirrored the wording of a paragraph in former section 15, of article XIII,⁵ the immediate predecessor of section 32. (See, e.g., Rev. & Tax Code, §§ 6931 [re sales and use taxes], 8146 [re motor vehicle fuel tax], 9171 [re use fuel tax], 11571 [re private car tax], 13101 [re insurance tax], 16123 [re gift tax], 26101 [re bank and corporation taxes], 32411 [re alcoholic beverage tax].)

Prior to its amendment in 1955 (Stats. 1955, ch. 1707, § 1, p. 3141), when section 1060.5 was added to the Code of Civil Procedure, section 19081 of the Revenue and Taxation Code was typical of such statutes. Before 1955, section 19081 provided: “No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this State or against any officer of this State to prevent or enjoin the assessment or collection of any tax under this part.”

As amended in 1955, section 19081 retained its original provisions, as quoted above, but added the provision that persons protesting a deficiency assessment, issued because of his or her alleged residence in this State, may bring court action against the Franchise Tax Board (after appealing from the Board to the State Board of Equalization) to determine the fact of residency, and that no tax based solely on residency shall be collected from such persons for 60 days after the action of the State Board of Equalization becomes final or during pendency of a court action.⁶ (See Review of 1955 Legislation (C.E.B.), pp. 125-126.)

It is this 1955 amendment to Revenue and Taxation Code section 19081, and Code of Civil Procedure section 1060.5, enacted in 1955, which the Board urges conflict with article XIII, section 32, of the California Constitution and violate the principle derived therefrom, namely, that an action for a tax refund is the exclusive means of obtaining judicial review of state tax assessments.⁷

The Board argues that whenever statutes conflict with constitutional provisions, the latter must prevail (People v. Navarro (1972) 7 Cal.3d 248, 260, 102 Cal.Rptr. 137, 497 P.2d 481), that legislative mandates cannot take precedence over constitutional provisions (Molar v. Gates (1979) 98 Cal.App.3d 1, 24, 159 Cal.Rptr. 239) and that the Legislature may not exercise any power that is expressly or impliedly forbidden to it by the State Constitution (Wood v. Hamaguchi (1929) 207 Cal. 79, 90, 277 P. 113).

While the Board's arguments are not wrong as far as they go, in Dupuy v. Superior Court (1975) 15 Cal.3d 410, 124 Cal.Rptr. 900, 541 P.2d 540, our Supreme Court held that “the anti-injunction provision of the California Constitution [Cal. Const., art. XIII, § 32] must yield to the paramount provisions of the United States Constitution (Cal. Const., art. III, § 1) ․” (Id., at p. 418, 124 Cal.Rptr. 900, 541 P.2d 540.)

The Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”⁸ (Emphasis added.)

The legal sage Bernard E. Witkin authoritatively advises: “In its origin, the meaning of the term ‘due process' was procedural. The protection was against judicial or administrative procedure which, by reason of denial of notice and opportunity for a hearing, unfairly deprived a person of property or personal rights ․ But in its development in the United States the due process clause has been interpreted as a limitation upon the legislative as well as the judicial and executive branches of the government, thus preventing arbitrary and unreasonable legislation. This aspect of the subject is known as substantive due process to distinguish it from procedural due process.” (5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 279, pp. 3569-3570, original emphasis.)

Substantive due process is best illustrated by cases dealing with the police power, but substantive due process also restricts other governmental powers, such as the power of eminent domain and the power to tax. (Id., at p. 3570.)

The taxing power of a state, while basic to its sovereignty, is subject to substantive due process limitations, which include those relating to its territorial jurisdiction. (5 Witkin, Summary of Cal. Law, supra, Taxation, § 2, p. 3988-3989; see also Sabine, Constitutional and Statutory Limits on the Power to Tax (1960) 12 Hastings L.J. 23, 30-40.) Some of these jurisdictional (substantive due process) aspects of state power were summarized in Miller Bros. Co. v. Maryland (1954) 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744,⁹ in which the United States Supreme Court held a Maryland use tax against a Delaware seller was void as extraterritorial. The Court noted its holding was mandated by its theretofore consistent adherence to the time-honored concept: “[T]hat due process requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.” (347 U.S. 340, 344-345, 74 S.Ct. 535, 538-539, 98 L.Ed. 744; see 5 Witkin, Summary of Cal. Law, supra, Taxation, § 2, p. 3989.)

Thus, “[a] state may constitutionally tax the income of its residents wherever earned as well as the income of non-residents derived from sources within the state.” (Davis v. Franchise Tax Board (1977) 71 Cal.App.3d 998, 1002, 139 Cal.Rptr. 797; see N.Y. ex. rel. Cohn v. Graves (1937) 300 U.S. 308, 313, 57 S.Ct. 466, 467, 81 L.Ed. 666; Lawrence v. State Tax Comm. (1932) 286 U.S. 276, 280-281, 52 S.Ct. 556, 557-558, 76 L.Ed. 1102; Shaffer v. Carter (1920) 252 U.S. 37, 52-53, 40 S.Ct. 221, 225-226, 64 L.Ed. 445; Travis v. Yale & Towne Mfg. Co. (1920) 252 U.S. 60, 75-76, 40 S.Ct. 228, 230-231, 64 L.Ed. 460.) In short, a state is without power to impose an income tax unless it has jurisdiction of the person taxed or of the property or business which produced the income taxed. (Shaffer v. Carter, supra, 252 U.S. 37, 52, 40 S.Ct. 221, 225, 64 L.Ed. 445; 85 C.J.S., Taxation, § 1090, p. 701.)

In Travis v. Yale & Towne Mfg. Co., supra, 252 U.S. 60, 40 S.Ct. 228, 64 L.Ed. 460, the United States Supreme Court explained this limitation on the taxing power of the states thusly:

“A statute imposing a personal tax on persons over whom the State has no jurisdiction conflicts with the Fourteenth Amendment and is a taking of property without due process of law ․ If the State has no jurisdiction to impose a personal liability for tax on a non-resident, it is immaterial whether that non-resident is engaging in an occupation in the State from which he derives a large income or not. So, also if the State has the jurisdiction to impose a tax, it is immaterial whether the non-resident's occupation in the State is gainful in money or in health or in pleasure. The State either has or has not the jurisdiction to impose a personal liability against a non-resident for the payment of taxes.” (At p. 68, 40 S.Ct. 228.)

The United States Supreme Court early held that “[w]here there is jurisdiction neither as to person nor property, the imposition of a tax would be ultra vires and void. If the legislature of a State should enact that the citizens or property of another State or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition.” (St. Louis v. The Ferry Company (1870) 78 U.S. (11 Wall.) 423, 430, 20 L.Ed. 192, original emphasis and emphasis added; 71 Am.Jur.2d, State and Local Taxation, § 85, p. 409.)

Clearly, in 1955, when the Legislature amended Revenue and Taxation Code section 19081 and enacted Code of Civil Procedure section 1060.5—to allow a prepayment court action for persons protesting an income tax assessment on residency grounds—it intended thereby to safeguard the substantive due process rights of non-residents. The Legislature apparently recognized that such claim of non-residency is a challenge to the very jurisdiction of the State to impose a personal income tax.¹⁰

In California Housing Finance Agency v. Elliott (1976) 17 Cal.3d 575, 131 Cal.Rptr. 361, 551 P.2d 1193, the California Supreme Court restated a well settled principle: “In considering the constitutionality of a legislative act we presume its validity, resolving all doubts in favor of the Act. Unless conflict with a provision of the state or federal Constitution is clear and unquestionable, we must uphold the Act.” (Id., at p. 594, 131 Cal.Rptr. 361, 551 P.2d 1193.)

In view of this presumption of statutory validity and the California Supreme Court's determination in Dupuy v. Superior Court, supra, 15 Cal.3d 410, 418, 124 Cal.Rptr. 900, 541 P.2d 540, that the anti-injunction provision of the California Constitution (Cal. Const., art. XIII, § 32) must yield to the paramount provisions of the United States Constitution (Cal. Const., art. III, § 1), we hold that Revenue and Tax Code section 19081 and Code of Civil Procedure section 1060.5, are constitutional under both the state and federal Constitutions.

II.

The Corbetts were not residents of California during the audit period.

The Board contends the trial court erred in finding the Corbetts were not residents of California during the audit period, the years 1970, 1971, 1972 and 1973.

Since the issue presented here involves the applicability of a statute to stipulated and uncontradicted facts, we are confronted with a pure question of law and are not bound by the findings of the trial court. (Klemp v. Franchise Tax Bd. (1975) 45 Cal.App.3d 870, 872, 119 Cal.Rptr. 821; Whittell v. Franchise Tax Board (1964) 231 Cal.App.2d 278, 283, 41 Cal.Rptr. 673.)

In making our determination on the residency question, we are guided by this Court's decision in Klemp v. Franchise Tax Bd., supra, 45 Cal.App.3d 870, 119 Cal.Rptr. 821. Klemp is significant because it is the only decision by a California court to delineate the basic residency requirements for liability under the Personal Income Tax Law. (See Comment (1975) 16 Santa Clara L.Rev. 176, 181.) It is also the only case to determine whether persons from another state have acquired a residency in California. (Id., at p. 181, fn. 34.).¹¹

We therefore set forth the pertinent statutes in effect during the years in question, as did the Klemp Court (at pp. 874-875, 119 Cal.Rptr. 821), so that we may analyze the facts of this case in light of the governing law.

The relevant Revenue and Taxation Code provisions are as follows:¹²

Section 17041 imposes a tax “upon the entire taxable income of every resident of this state ․”

Section 17014 provides that “‘Resident’ includes:

“(a) Every individual who is in this State for other than a temporary or transitory purpose.

(b) Every individual domiciled in this State who is outside the State for a temporary or transitory purpose.

Any individual who is a resident of this State continues to be a resident even though temporarily absent from the State.”

Section 17015 provides that “‘Nonresident’ means every individual other than a resident.”

Section 17016 raises a rebuttable presumption of residence: “Every individual who spends in the aggregate more than nine months of the taxable year within this State shall be presumed to be a resident. The presumption may be overcome by satisfactory evidence that the individual is in the State for a temporary or transitory purpose.”

The issue here, as in the Klemp case, is whether during the audit years the Corbetts were in California “for other than a temporary, or transitory purpose” within the meaning of Section 17014, which defines the meaning of “‘Resident.”’

Our inquiry, therefore, is aided by an examination of the Board's own regulations, issued pursuant to Revenue and Taxation Code 19253, which interpret the statutory definition of residence. Included in these regulations are the following:

“Whether or not the purpose for which an individual in this State will be considered temporary or transitory in character will depend to a large extent upon the facts and circumstances of each particular case ․”

“The underlying theory of Sections 17014-17016 is that the state with which a person has the closest connection during the taxable year is the state of his residence.

An individual whose presence in California does not exceed an aggregate of six months within the taxable year and who is domiciled without the state and maintains a permanent abode at the place of his domicile, will be considered as being in this state for temporary or transitory purposes providing he does not engage in any activity or conduct within this State other than that of a seasonal visitor, tourist or guest.

An individual may be a seasonal visitor, tourist or guest even though he owns or maintains an abode in California or has a bank account here for the purpose of paying personal expenses or joins local social clubs.” (Cal.Admin.Code, tit. 18, reg. 17014-17016(b).)13

In the instant case, as in Klemp, the Board does not contend the Corbetts are individuals “domiciled in this State” under section 17014. Impliedly they thus concede the Corbetts are domiciliaries of Illinois. Rather, the Board's argument emphasizes the comparison between the amount of time the Corbetts spent in California versus the time they spent in Illinois during the audit years.

Preliminarily, we note that since the Corbetts never spent nine or more months in California, they fall outside the statutory presumption of residence based on physical presence. (Rev. & Tax Code, § 17016.) Section 17016 establishes that the length of time a person is in California does not necessarily compel a determination that he or she has acquired residence here. (Klemp v. Franchise Tax Bd., supra, 45 Cal.App.3d at p. 876, 119 Cal.Rptr. 821.) The section “concedes that evidence may show that presence for more than nine months is ‘for a temporary or transitory purpose,’ and, hence, does not constitute residence for income tax purposes.” (Ibid.)

The regulations recognize that a person who stays in California as long as six months, who is domiciled without the state and who maintains a permanent abode at the place of domicile, may be considered as being in this state for temporary or transitory purposes “‘providing he does not engage in any activity or conduct within this State other than that of a seasonal visitor, tourist or guest.”’ (Ibid.) During the time in question, the Corbetts did not engage in any activity or conduct in California other than that of a seasonal visitor or tourist. The regulations establish that the ownership of an abode, a bank account and a social club membership in this state do not subject a seasonal visitor to California income tax. (Id., at pp. 876-877, 119 Cal.Rptr. 821.) That the Corbetts spent more than six months in California during some of the audit years is only a factor to be considered as an indication of the purpose of the visit, and should not “tip the scale” when all other circumstances point clearly to residency being in Illinois. (See id., at p. 877, 119 Cal.Rptr. 821.)

In comparing the facts of this case with those in Klemp, we note that the Corbetts spent almost nine months in California during some of the years in question, while the Klemps spent at most only six months of a questioned year in this state. However, unlike the Klemps, who rented an hotel apartment in Chicago which they relinquished when they were not in that city, the Corbetts maintained a permanent residence in their native Illinois, a factor which mitigates in favor of a finding they were seasonal visitors to California. (See 45 Cal.App.3d at p. 877, 119 Cal.Rptr. 821.)

Otherwise the facts of the two cases are very similar. Both the Corbetts and the Klemps had prospered to the point where they were free to leave Illinois, returning only when their respective businesses needed them. The couples continued to manage substantial business interests in Illinois during their absences from that state, but none of those interests were transferred from Illinois to California. Both the Klemps and the Corbetts preserved in Illinois the many relationships and interests they had built over a lifetime.

The Klemps' only connection with California was their purpose to spend the colder half of the year as visitors in the California desert, together with their ownership of a house and a club affiliation suitable for that purpose. (45 Cal.App.3d at p. 877, 119 Cal.Rptr. 821.) The Corbetts' connection with California was almost identical to that of the Klemps, except that another purpose of the Corbetts' stays in California was a desire to be with their California relatives.

The standards established by the statutes, the regulations and the Klemp case, require a finding that the state with which the Corbetts' had the “‘closest connection during the taxable year[s]”’ in question was their native Illinois, notwithstanding their lengthy stays in California. (45 Cal.App.3d at p. 876, 119 Cal.Rptr. 821.) We hold, therefore, that the Corbetts remained Illinois residents during those years and did not become California residents within the meaning of section 17014.

CONCLUSION

Substantive due process, in the development of our American jurisprudence, has been a bullwark in the series of safeguards created to curb and curtail governmental power in its dealings with the individual. Its historical roots stem from the struggle against the arbitrary and compulsive coercion of kings and their representatives. Its modern application is to protect the citizenry against the potentially overwhelming power, prestige and resources of the state. Its present role, as chronicled here, is as guardian of the People against improper confiscation of private property.

DISPOSITION

The judgment is affirmed.

I concur in the result. This case deals with the power of the Franchise Tax Board to tax respondents as residents of California when they claim they are residents of Illinois. The issue thus presented is whether the state has jurisdiction to assess a tax against respondents without respondents' having the opportunity to challenge the state's claim of jurisdiction to impose a tax in the first instance.

To reiterate, the California Constitution, article XIII, section 32, provides “[n]o legal or equitable process shall issue in any proceeding in any court against this State or any officer thereof to prevent or enjoin the collection of any tax. After payment of a tax claimed to be illegal, an action may be maintained to recover the tax paid, …” Pacific Gas & Electric Co. v. State Bd. of Equalization, supra, 27 Cal.3d 277, 165 Cal.Rptr. 122, 611 P.2d 463 upheld the application of section 32, article XIII, of the California Constitution in a fact situation not involving a question, as here, of jurisdiction of the state over the purported taxpayers.

Because of the limited application of Revenue and Taxation Code, section 19081 to persons claiming nonresidency status, I acquiesce in the majority view that the section is constitutional.

FOOTNOTES

1.  The Corbetts' connections with both California and Illinois during the audit period, as set forth in the stipulated facts, are summarized in Appendix A to this opinion.

2.  California Code of Civil Procedure section 1060.5 provides:“Any individual claiming to be a nonresident of the State of California for the purposes of the Personal Income Tax Law may commence any action in the Superior Court in the County of Sacramento, or in the County of Los Angeles, or in the City and County of San Francisco, against the Franchise Tax Board to determine the fact of his residence in this State under the conditions and circumstances set forth in Section 19081 of the Revenue and Taxation Code.”

3.  Section 33 of article XIII of the California Constitution (formerly section 13) declares: “The Legislature shall pass all laws necessary to carry out the provisions of this article.”

4.  There have been similar constitutional provisions which have been subject to numerous minor revisions and renumberings since 1910. In 1974, this provision was placed in separate section 32 and amended to its present form. (See Pacific Gas & Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d 277, 280, fn. 3, 281, fn. 5, 165 Cal.Rptr. 122, 611 P.2d 463.)

5.  Former section 15 of article XIII of the California Constitution read, in part: “No injunction or writ of mandate or other legal or equitable process shall ever issue in any suit, action or proceeding in any court against this State, or any officer thereof, to prevent or enjoin the collection of any tax levied under the provisions of this article; but after payment thereof an action may be maintained to recover, with interest, in such manner as may be provided by law, any tax claimed to have been illegally collected.”

6.  Since its amendment in 1955, California Revenue and Taxation Code section 19081, has provided:“No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action, or proceeding in any court against this State or against any officer of this State to prevent or enjoin the assessment or collection of any tax under this part; provided, however, that any individual after protesting a notice or notices of deficiency assessment issued because of his alleged residence in this State and after appealing from the action of the Franchise Tax Board to the State Board of Equalization, may within 60 days after the action of the State Board of Equalization becomes final commence an action, on the grounds set forth in his protest, in the Superior Court of the County of Sacramento, in the County of Los Angeles or in the City and County of San Francisco against the Franchise Tax Board to determine the fact of his residence in this State during the year or years set forth in the notice or notices of deficiency assessment. No tax under this part based solely upon the residence of such an individual shall be collected from such individual until 60 days after the action of the State Board of Equalization becomes final and, if he commences an action pursuant to this section, during the pendency of such action, other than by way of or under the jeopardy assessment provisions of this part.”

7.  The cases cited by the Board for those propositions are readily distinguishable, because in none of the cases cited was the taxpayer challenging a personal income tax deficiency assessment on residency grounds. (See Pacific Gas & Electric Co. v. State Bd. of Equalization, supra, 27 Cal.3d 277, 279, 165 Cal.Rptr. 122, 611 P.2d 463 [re adjustment of real property assessment pursuant to article XIII A of the California Constitution, popularly known as Proposition 13]; United States Steel Corp. v. Franchise Tax Board (1983) 144 Cal.App.3d 473, 481, 192 Cal.Rptr. 677 [re bank and corporation taxes]; Hunter-Reay v. Franchise Tax Board (1983) 140 Cal.App.3d 875, 881, 189 Cal.Rptr. 810 [re personal income tax; assessment not protested on residency grounds]; Horack v. Franchise Tax Board (1971) 18 Cal.App.3d 363, 370, 95 Cal.Rptr. 717 [re personal income tax; a jeopardy assessment, not protested on residency grounds].)

8.  The California Constitution also contains a due process clause (Cal. Const., art. I, § 7(a)).

9.  The United States Supreme Court in Miller Bros. v. Maryland, supra, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744, stated in regard to a state's power to tax consistent with the requirements of substantive due process:“[T]he Court has frequently held that a domicile or residence, more substantial than mere presence in transit or sojourn, is an adequate basis for taxation, including income, property, and death taxes. Since the Fourteenth Amendment makes one a citizen of the state wherein he resides, the fact of residence creates universally recognized reciprocal duties of protection by the state and of allegiance and support by the citizens. The latter obviously includes a duty to pay taxes, and their nature and measure is largely a political matter. Of course, the situs of property may tax it regardless of the citizenship, domicile or residence of the owner, the most obvious illustration being a tax on realty laid by the state in which the realty is located. Also, the keeping of tangible or intangible personalty within a state may give it a similar taxable situs there (sometimes called a business or commercial situs or domicile). Certain activities or transactions carried on within a state, such as the use and sale of property may give jurisdiction to tax whomsoever engages therein, and the use of highways may subject the use to certain types of taxation. These cases overlap with those in which incorporation by a state or permission to do business there forms the basis for proportionate taxation of a company, including its franchise, capital, income and property. Recent cases in which a taxable sale does not clearly take place within the taxing state, elements of the transaction occurring in different states, have presented peculiar difficulties, as have those where the party is liable for a use tax does not use the product within the taxing state.” (At p. 345, 74 S.Ct. at p. 539, footnotes omitted.)

10.  Both the United States and California Supreme Courts have held that procedural due process does not require judicial determination of tax liability before collection (Phillips v. Commissioner of Internal Revenue (1931) 283 U.S. 589, 597-599, 51 S.Ct. 608, 611-612, 75 L.Ed. 1289; Dupuy v. Superior Court, supra, 15 Cal.3d 410, 416, 124 Cal.Rptr. 900, 541 P.2d 540) nor preclude the government from effecting the collection of taxes by summary administrative proceedings (Phillips v. Commissioner of Internal Revenue, supra, 283 U.S. at p. 595, 51 S.Ct. at p. 611; Dupuy v. Superior Court, supra, 15 Cal.3d at p. 416, 124 Cal.Rptr. 900, 541 P.2d 540).

11.  Whittell v. Franchise Tax Board, supra, 231 Cal.App.2d 278, 41 Cal.Rptr. 673, was based on facts quite different from Klemp and this case. In Whittell the question was whether Californians had given up their California residence when they moved their domicile to Nevada. The question in Klemp and the instant case is whether persons from another state have acquired a residence in California. (See Klemp v. Franchise Tax Bd., supra, 45 Cal.App.3d at p. 875, 119 Cal.Rptr. 821; and see Comment, supra, 16 Santa Clara L.Rev. at p. 181, fn. 34.)

12.  The quoted provisions of the Revenue and Taxation Code are those which were in effect during the audit years. The sections have since been renumbered, and otherwise changed, but the quoted provisions remain identical.

13.  Regulation 17014-17016(b) of Title 18 of the California Administrative Code was in effect during the audit years. The section has since been renumbered to Section 17014, but the quoted portions are identical in the present version of the regulation.

FOOTNOTE.  FN* Exhibit A in the trial court.

ARABIAN, Associate Justice.

LUI, J., concurs. KLEIN, Presiding Justice, concurring.