This proceeding is brought on for a review of a final determination of the State Tax Commission affirming assessments of personal income tax upon petitioner’s application for revision thereof.
*189The sole issue presented is one of domicile. For many years petitioner was a resident of South Kortright, N. Y., where she owned a dwelling house and which she considered her fixed and permanent home until 1937, when she alleges she determined to make her home in Bermuda, where she had owned a dwelling. She deeded the Bermuda residence to her daughter with an oral reservation of right of occupancy. She deeded the Kortright house and likewise retained by written reservation the right to use and occupancy of the same during her lifetime. Her own furniture remains in the Kortright home. There does not appear to have been any variation in her life and no act has been shown that would indicate an intention to change her domicile. She remains a citizen of the United States and in a letter written in May, 1938, she states, “ I am anxious to get home for many reasons.” The home referred to was South Kortright. It did not refer to a dwelling place in Bermuda which she had transferred to her daughter, reserving by oral agreement the right to the use thereof. It clearly referred to the place where she had lived for many years and which she admittedly considered her home at least until 1937. She was not taxed as a resident of Bermuda. All of her securities were in the State of New York and as a citizen of the United States she was not subject to tax under the laws of Great Britian. There is nothing in this record to show a clear intent on her part to actually change her domicile from the country of her birth and where she had resided during a long lifetime to the island of Bermuda.
The Bermuda property was purchased by petitioner’s husband in 1920 and from then her time was divided between South Kortright and Bermuda. Her husband died in 1935. She continued to consider South Kortright her home until 1937, when she “ just changed ” and claims to have established Bermuda as her permanent home. She leased the Bermuda house for the winter season of 1938-1939. In 1938 she rented a place in Skaneateles and remained there during the summer with her two granddaughters. She spent part of the time in 1939 in New York State and in 1940 she lived in a rented apartment in Syracuse from October until May. She occupied the South Kortright house during the summer of 1940. She has not changed her will, executed in 1936, in which she gave South Kortright as her residence; she has not made application to become a citizen of Great Britian, and the registration of an automobile owned by her gives her residence as South Kortright. It is true she endeavored for some time to dispose of the South Kortright dwelling, but when it was finally sold the deed of conveyance contained a provision that she could occupy *190it as a residence during her lifetime. Her own furniture remains in the premises. Prior to the sale of the South Kortright property she had transferred the title to her Bermuda property with an oral understanding that she could occupy it. The argument that the disposition of the South Kortright property is evidence of her abandonment of this State as her legal domicile is not convincing for she, likewise, divested herself of title to the Bermuda property. Apparently she has continued her customary habit of spending part of her time in Bermuda and part of her time in New York State and has at all times retained the right to the use of the South Kortright dwelling. I agree that a person may change his or her domicile for the purpose of avoiding taxation; however, there must be a fixed intention to abandon one domicile and acquire another. Such intention has not been demonstrated. There has been no factual change in her mode of life, nor may it be said that she was motivated by any patriotic impulse to change allegiance to another sovereignty as she continues to retain her United States citizenship.
The determination of the State Tax Commission should be confirmed.
Hill, P. J., and Crapser, J., concur; Heffernan, J., dissents, in an opinion, in which Bliss, J., concurs.