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Alaska Permanent Fund Div. v. Wilder (1/10/97), 929 P 2d 1280
Notice: This opinion is subject to formal correction before publication in the Pacific
Reporter. Readers are requested to bring errors to the attention of the Clerk of the
Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, PERMANENT FUND ) Supreme Court No. S-7187
DIVIDEND DIVISION, )
) Superior Court No.
Appellant, ) 3AN-94-7748 CIV
HARLAN G. WILDER, CAROLYN E. ) O P I N I O N
WILDER, ALLISON C. WILDER, )
and STEPHANIE C. WILDER, )
Appellees. ) [No. 4459 - January 10, 1997]
Appeal from the Superior Court of the State of Alaska,
Third Judicial District, Anchorage,
Milton M. Souter, Judge.
Appearances: Marilyn May, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney General,
Juneau, for Appellant. R. R. De Young, Wade & De Young,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Rabinowitz, Matthews,
Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
The Department of Revenue (Department) appeals the superior court's
reversal of a Department decision denying a number of permanent fund dividend (PFD)
applications filed by members of the Wilder family. We reverse.
II. FACTS AND PROCEEDINGS
Harlan Wilder has been an officer in the Judge Advocate General
Department of the United States Air Force since 1972. In 1975 he requested and
was granted a transfer from Washington State to Alaska. Wilder arrived in Anchorage
in October 1975. He was joined shortly thereafter by his wife Carolyn and their two
children, Allison and Stephanie. While in Alaska Wilder became a member of the
Alaska Bar Association, obtained an Alaska driver's license, opened Alaska bank
accounts, registered to vote as an Alaskan, and obtained Alaska motor vehicle
registrations. The Wilders also bought a house and an interest in a lot in Anchorage.
In 1980 Wilder was transferred to Alabama, and his family relocated with
him. Between 1980 and 1991 the Wilder family relocated four times, as Wilder rose
through the ranks to the grade of colonel. During that time Wilder maintained his
motor vehicle registrations in Alaska, renewed his Alaska driver's license, and
maintained his membership in the Alaska Bar Association. The Wilders sold their
Anchorage house in 1980 but retained their interest in the Anchorage lot. Wilder's
Alaska voter's registration lapsed in the mid-1980s, but he renewed it in 1989. The
Wilders returned to Alaska only in June 1989. Their visit lasted less than one week.
Wilder, his wife, and their two children received PFDs from 1980 through
1991. In 1982 the Wilders had a third child, Andrew. The Wilders applied for PFDs
on his behalf. Andrew received such benefits until 1989. (EN2)
In 1992 the Department issued notices of denial for the Wilders' 1989,
1990, and 1991 PFD applications. (EN3) After a formal hearing, a Department
hearing officer affirmed the denials, concluding that the Wilders had not carried the
burden of demonstrating that when they filed their 1989, 1990 and 1991 PFD
applications, they were Alaska residents with the intent to return to and remain in
Alaska permanently. The hearing officer found that the Wilders had only
demonstrated an intent to "remain eligible for PFDs."
The superior court reversed the Department's decision, commenting:
The great weight of evidence confirms Colonel Wilder's
intent to return to Alaska permanently. It is difficult to see
what more he could have done to demonstrate his intent.
His maintenance of active bar membership and personal
contacts in Alaska is highly probative. The final decision
[of the Department] is not supported by substantial
evidence in the record as a whole.
The Department appeals.
A. Standard of Review
This court gives no weight to the superior court's decision when the
superior court acts as an intermediate appellate court. State, Dep't of Revenue v.
Bradley, 896 P.2d 237, 238 n.2 (Alaska 1995). We review the Department's finding
that the Wilders did not have the necessary intent to return and to remain permanently
in Alaska under the substantial evidence standard. See, e.g., Tinker v. Veco, Inc.,
913 P.2d 488, 492 (Alaska 1996) (agency findings reviewed under substantial
evidence standard). Substantial evidence is "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Id. (quoting Fireman's Fund
American Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (1976)). However, "the ultimate
question of whether the quantum of evidence is itself substantial is a legal question,
for which the court will independently review the evidence." Id.
B. Wilder Failed to Prove His Intent to Return and to Remain Permanently
To be eligible for a PFD, an individual must be a state resident on the
date of application. AS 43.23.005(a)(2). During the relevant period, "state resident"
was defined as "an individual who is physically present in the state with the intent to
remain permanently or, if not physically present, intends to return to the state and is
absent only for [certain enumerated] reasons." AS 43.23.095(8)(amended 1992).
(EN4) Military service is one of the enumerated reasons. AS 43.23.095(8)(C).
Individuals absent from the state for allowable reasons must demonstrate at all times
during their absence an intent to return to and to remain in Alaska permanently. 15
AAC 23.163(f). (EN5) Absences exceeding five years result in presumptive
ineligibility. Id. Thus, when Wilder applied for PFDs in 1989-91, presumptively he
was no longer a state resident as he had been absent for more than five years. Id.
There is substantial evidence in the record to support the Department's conclusion
that Wilder failed to rebut this presumption.
The Department discounted what it called Wilder's "paper ties"to
Alaska. These ties, including Alaska motor vehicle registration, Alaska voter
registration, Alaska driver's license, and membership in the Alaska Bar Association,
are entitled to some weight. However, they are not conclusive evidence on the issue
of intent to return to Alaska. Sound policy requires more than such "paper ties"to
establish eligibility for PFDs. See State, Dep't of Revenue v. Cosio, 858 P.2d 621,
625 (Alaska 1993) ("The objective of AS 43.23.095(8) [defining state resident] is to
limit payment of dividends to permanent residents."); see also Brodigan v. State,
Dep't of Revenue, 900 P.2d 728, 733 n.12 (Alaska 1995) ("[T]he residency
requirement[s] for PFD eligibility may differ from other residency requirements.").
The Department correctly placed significance on the fact that Wilder
returned to Alaska only once between 1980 and 1992. Wilder testified that "it isn't
worth it to come back for no apparent reason than to just touch base with the State
of Alaska." Bringing a family of five to Alaska involves significant expense.
Nevertheless, as the Department noted, "individuals who profess residency in a state
can be expected to return to that state from time to time." Wilder asserts that he
cannot afford to "throw away 4, 5, $6,000 every couple of months to come back to
Alaska." Wilder need not come back "every couple of months"to prove an intent to
return. At the same time, one short visit in a twelve-year period strongly militates
against his residency claim.
The Department also based its decision on Wilder's failure to request
reassignment to Alaska. Wilder makes no secret of the fact he did not request
reassignment to Alaska after 1986 because to do so would have been "career
damaging." Wilder admits there is a JAG position in Alaska but asserts that he did
not apply for it because it would have been "a giant step backward in my career for
me to request this assignment." He argues "there is absolutely nothing inconsistent
with my pursuit of a full career in the Air Force and my intent to return to Alaska and
remain there permanently at the end of my career."
Without minimizing the unique nature and special demands of a career
in the military, we conclude that Wilder has made a choice, and that choice is
inconsistent with an intent "at all times"to return to Alaska. 15 AAC 23.163(f). In
determining an individual's intent to return to Alaska, the Department is specifically
authorized to consider both "the priority the individual gave Alaska on an employment
assignment preference list, such as those used by military personnel"and "whether
the individual made a career choice or chose a career path that does not allow the
individual to reside in Alaska or return to Alaska." 15 AAC 23.163(g). Though Wilder
may express a wish to return to Alaska, any present desire to do so appears to have
been outweighed by a career choice which does not allow for such a return until after
retirement. Under these circumstances, the Department could reasonably conclude
that Wilder has not evidenced an intent to return to Alaska sufficient to maintain
eligibility for PFDs.
C. Carolyn, Allison, and Stephanie Wilder Are Ineligible for PFDs.
Carolyn, Allison, and Stephanie Wilder were not absent from the state
for an allowable reason, since they left the state only to accompany Harlan Wilder.
See AS 43.23.095(8). Thus, under regulations in force at the time of the applications
at issue, their eligibility for PFDs turns on Harlan Wilder's eligibility. See 15 AAC
23.150(f) (1989) (repealed 1/1/93) and 15 AAC 23.175(c)(13) (1990) (repealed
1/1/93) (providing that a spouse or child accompanying an individual absent from the
state for an allowable reason is eligible for a PFD if he or she was a resident of Alaska
for six months before departure and has not established residency elsewhere). Since
Wilder is ineligible for PFDs, it follows that his wife and children are also ineligible.
The Department concluded: "It is clear that while the Wilders lived in the
state, they considered themselves Alaskan residents. After they left the state, it is
equally clear . . . they did not maintain their intent to return to the state to remain
permanently." Although there are competing inferences to be drawn from the
testimony, the Department's conclusion is one which a reasonable mind could reach,
based on the evidence in the record. The judgment of the superior court is
REVERSED and the case REMANDED with instructions to enter judgment in favor of
the State, Department of Revenue.
1. Alaska Statute 43.23.005(a) was amended in 1989 to require that an individual
be present in the state at some time during the two year period prior to any dividend
year. AS 43.23.005(a)(3) (renumbered AS 43.23.005(a)(4) in 1992). Wilder admits
that he came to Alaska in 1989 in part to comply with this requirement.
2. The Wilders have not appealed the superior court's affirmance of the
Department's decision denying Andrew's 1989-91 applications.
3. While most of those dividends had already been paid, the Department was
empowered to recover improperly paid dividends under AS 43.23.035(b).
4. Section .095(8) now reads:
(8) "state resident"means an individual who is physically
present in the state with the intent to remain permanently
in the state under the requirements of AS 01.10.055 or, if
the individual is not physically present in the state, intends
to return to the state and remain permanently in the state
under the requirements of AS 01.10.055, and is absent
only for [certain enumerated] reasons.
AS 43.23.095(8) (emphasis added). In amending section .095(8), the legislature
declared that "[t]he change to the definition of residency in [AS 43.23.095(8)] only
clarifies what the legislature intended the definition to be." sec. 16, ch. 4, SLA 1992.
See Matanuska-Susitna Borough v. Hammond, 726 P.2d 166, 176 n.21 (Alaska
1986) ("Subsequent legislation declaring the intent of a previous enactment is entitled
to great weight."). Under AS 01.10.055, a person establishes residency "by being
physically present in the state with the intent to remain in the state indefinitely and
to make a home in the state." AS 01.10.055(a). One who has established residency
"remains a resident during an absence from the state unless during the absence the
person establishes or claims residency in another state, territory or country, or
performs other acts or is absent under circumstances that are inconsistent with the
intent required under (a) of this section to remain a resident of this state." AS
5. This provision was numbered 15 AAC 23.150(e) in 1989, and 15 AAC
23.175(f) in 1990.