David Westfall, trustee of a trust created by the will of Curtis B. Rollins, Jr., seeks review of a decision of the Administrative Hearing Commission affirming the denial by the Director of Revenue of the trustee’s claim for a tax refund. The question is whether Missouri may tax the Rollins trust’s income as a resident trust notwithstanding a portion of its income derives from assets held outside Missouri. The Court of Appeals, Western District, decided this case adversely to appellant and transferred it to this Court. The decision of the Administrative Hearing Commission is affirmed.
Curtis B. Rollins, Jr., the settlor, was a Missouri domiciliary when he died; his will was probated and his estate was administered in Missouri. The Boone County, Missouri, Circuit Court transferred estate assets to the trustee for management on behalf of the beneficiaries. The trust earned rental income of $3,541 each year in 1984 and 1985 from an interest in real estate in Columbia, Missouri; renting the real estate was the only business conducted in Missouri during those years. No distribution of income has been made to a Missouri resident; no trustee has been a resident of Missouri during the tax years in question. Except for this case the trust has undertaken no legal proceedings to date in Missouri courts concerning the trust or its beneficiaries. The trustee filed Missouri fiduciary income tax returns for the trust for the years 1984 and 1985, treating it as a resident trust under section 143.331(2), RSMo 1986. As a resident trust, the trustee paid 1984 and 1985 income taxes to Missouri on the entire trust income; he paid no income taxes to any other state. In June 1987, he filed refund claims for taxes paid in 1984 and 1985; his claim now sought to treat the trust as a nonresident *514trust and to pay taxes limited to income derived from Missouri sources.
A resident trust for purposes of income taxation in Missouri is “[a] trust created by will of a decedent who at his death was domiciled in this state_” § 143.331(2), RSMo 1986. The Rollins trust is thus a resident trust subject to taxation of its entire income by Missouri, § 143.341, RSMo 1986, and entitled to credit for income taxes, if any, paid to any other state, § 143.361, RSMo 1986. These statutes are presumed to be constitutional; the burden of showing invalidity or unconstitutional application is on the appellant. Schnorbus v. Director of Revenue, 790 S.W.2d 241, 242-43 (Mo.banc 1990).
Appellant contends that “[b]y failing to limit income taxation of the trust at issue to its income from sources in Missouri, as a nonresident trust, the Administrative Hearing Commission , denied petitioner due process of law in accordance with the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Missouri Constitution.” The Director responds that under Swift v. Director of Revenue, 727 S.W.2d 880 (Mo.banc 1987), there is no denial of due process and that the Rollins trust is correctly determined to be a resident trust with its entire trust income subject to Missouri tax.
This is not a precedential case; it is, instead, governed by the teaching of Swift. In response to present appellant’s due process contention, this Court noted in Swift that the fourteenth amendment to the U.S. Constitution and article I, section 10, of the Missouri Constitution do not permit Missouri to tax a resident trust under the statute unless the state has sufficient connections with the trust to provide a basis for the state’s authority to tax. This Court held that such nexus is present when state law confers some benefit to or protection for the property subject to the tax. Id. at 882. In determining whether the state has a sufficient nexus to support imposition of an income tax on trust income, Swift considered six points of contact:
(1) the domicile of the settlor, (2) the state in which the trust is created, (3) the location of trust property, (4) the domicile of the beneficiaries, (5) the domicile of the trustees, and (6) the location of the administration of the trust. For purposes of supporting an income tax, the first two of these factors require the ongoing protection or benefit of state law only to the extent that one or more of the other four factors is present.
Swift, 727 S.W.2d at 882.
Missouri was connected to the trust in Swift only by the settlor’s domicile, point (1), and the situs of the trust’s creation, point (2). Because of those limitations this Court properly determined Missouri lacked sufficient connection with the trust to impose Missouri income tax. Id. The Rollins trust differs, however, from the trusts in Swift because the Rollins trust also satisfies point (3) of the test by its ownership of real estate in Columbia, Missouri. In addition, the trust instrument shows that under certain contingencies charities in Columbia will receive distributions; it specifies the Board of Trustees of the Columbia [Missouri] Public Library as a contingent beneficiary and the Boone County National Bank as a possible successor trustee. These considerations taken together with points (1), (2) and (3) provide a “sufficient nexus to support the imposition of an income tax on trust income_” Id. Greenough v. Tax Assessors of City of Newport, 331 U.S. 486, 67 S.Ct. 1400, 91 L.Ed. 1621 (1947), recognized that a trust’s property was subject to tax in Rhode Island because the state was “ready, willing and capable” of furnishing benefits and protection “if requested.” Id. at 495, 67 S.Ct. at 1404.
Appellant has failed to meet his burden of proof, and the decision of the Administrative Hearing Commission is affirmed.
COVINGTON and HOLSTEIN, JJ., and KENNEDY, Special Judge, concur. ROBERTSON, C.J., concurs in result in separate opinion filed. BLACKMAR, J., dissents in separate opinion filed. RENDLEN, J., dissents and concurs in dissenting opinion of BLACKMAR, J.