March 15, 2023
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will reply to your letter in which you seek reconsideration of the Department’s determination letter, issued as Public Document (P.D.) 22-53 (4/5/2022).
FACTS
In P.D. 22-53, the Department found that the Taxpayer remained taxable as a domiciliary resident of Virginia for the 2017 taxable year. The Taxpayer contends that her facts are very similar to those in P.D. 00-151 (8/18/2000), in which a taxpayer was determined to have abandoned his Virginia domicile.
DETERMINATION
Title 23 of the Virginia Administrative Code 10-20-165 F provides that a taxpayer who disagrees with the Department’s final determination issued pursuant to Virginia Code § 58.1-1822 may request a reconsideration of the determination. In order to grant a request for reconsideration, the request must be received by the Department no later than 45 days after the date of the determination letter, and a taxpayer must meet one of four specific requirements set forth in that section.
a. The facts upon which the original determination is based are misstated by the Tax Commissioner or are inaccurate, and the determination would have a different result based on a correction of the Tax Commissioner’s misstatement of the facts presented or a clarification of the original facts presented in the taxpayer’s administrative appeal;
b. The law upon which the original determination is based has been changed by legislation, court decision or other authority effective for the tax period(s) at issue;
c. The policy upon which the original determination is based is misapplied, and the determination would have a different result based on the application of the proper policy; or
d. The taxpayer has discovered additional evidence or documentation that was not available to the taxpayer at the time the original administrative appeal was filed with the department, and the additional evidence or documentation could produce a result different from the original determination.
The reconsideration request does not meet any of the above criteria. The Taxpayer references the same facts that the Department analyzed in P.D. 22-53 but believes the conclusion was erroneous. The applicable law has not been changed, the Department applied the law of domicile, which was the correct policy at issue, and no additional evidence has been uncovered that was not available to the taxpayer at the time of the first determination. Mere disagreements about the conclusion do not satisfy any of the reconsideration criteria. See P.D. 20-188 (11/10/2020).
Regardless, there are several notable differences between the facts of this case and P.D. 00-151. In P.D. 00-151, as soon as the taxpayer moved from the foreign country to a state other than Virginia, he obtained that state’s driver’s license. In addition, the foreign country did not require that new residents obtain a driver’s license from that country. In this case, the Taxpayer maintained her Virginia license when she moved to California and renewed her Virginia driver’s license after claiming she abandoned her Virginia domicile. Further, unlike the foreign country in P.D. 00-151, California requires individuals who become California residents to obtain a California driver’s license within a certain period of time, currently within 10 days of becoming a resident.
While I recognize the Taxpayer’s ongoing disagreement with the determination made in P.D. 22-53, I find no basis for reversing it at this time. Because the Taxpayer was an actual resident of California as well as a domiciliary resident of Virginia for the 2017 taxable year, she would be allowed a credit against her Virginia income tax liability for income tax paid to California to the extent permitted by Virginia Code § 58.1-332. A review of the Taxpayer’s account indicates that it was adjusted to include the credit for the income tax paid to California. It does not appear, however, that the audit staff provided the Taxpayer with an explanation of the adjustment to the out-of-state credit as directed in P.D. 22-53.
A revised bill for the 2017 taxable year will be issued to the Taxpayer. An explanation of the adjustment to the out-of-state credit must accompany the revised bill. If the Taxpayer disagrees with that adjustment, she retains the right to appeal within 90 days of being notified of the change. Otherwise, she should remit payment for the outstanding balance on the revised bill within 30 days from the date of the bill to avoid the accrual of additional interest and possible collections actions.
This response constitutes the Department’s final determination in this matter. If the Taxpayer wishes to appeal this matter further, she may pursue a judicial remedy in Virginia’s court system. The Taxpayer should be aware that any court application must be filed within the statute of limitations. See Virginia Code § 58.1-1825.
The Code of Virginia sections, regulation and public documents cited are available on-line at www.tax.virginia.gov in the Laws, Rules & Decisions section of the Department’s web site. If you have any questions regarding this determination, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
Sincerely,
Craig M. Burns
Tax Commissioner
AR/4191.B