Tax Type
Local Taxes
Property Tax
Description
Motor Vehicle Jointly Owned by Military Person and Spouse; Spouse Registered to Vote in Virginia
Topic
Local Power to Tax
Local Taxes Discussion
Property Subject to Tax
Date Issued
11-26-1984
[Opinion - Virginia Attorney General: 1984 at 363]
REQUEST BY: Honorable A. Joe Canada, Jr. Member, Senate of Virginia
OPINION BY: Gerald L. Baliles, Attorney General
OPINION:
You have asked whether the registration to vote of the spouse of a military person will affect the personal property tax status of a motor vehicle jointly owned by a military person and his spouse.
Section 514 of the Soldiers' and Sailors' Civil Relief Act of 1940 (the "Act"), 50 U.S.C. App. § 574, provides that if a person on active duty with the armed forces of the United States is "absent from his [place of] residence or domicile solely by reason of compliance with military or naval orders," his personal property is not deemed to be present in the locality where he is stationed. The Act does not, however, prevent such person from voluntarily changing his domicile to the state or locality in which he is physically present, pursuant to military orders. Thus, the protection afforded by the Act does not preclude a case-by-case determination as to whether a military person is in fact a Virginia domiciliary for purposes of local taxation. See 1975-1976 Report of the Attorney General at 115.
The Supreme Court of Virginia has stated that to establish a new domicile, two things must concur -- first, residence in the new locality; second, the intention to remain there. The necessary intent to remain is a state of mind that must be proven by the surrounding facts. See State-Planters Bank v. Com., 174 Va. 289, 6 S.E.2d 629 (1940); Cooper's Adm'r. v. Commonwealth, 121 Va. 338, 93 S.E. 680 (1917). In an Opinion found in the 1983-1984 Report of the Attorney General at 412, I concluded that the military person involved did not establish domicile in Virginia for purposes of tangible personal property taxation solely by registering to vote and subsequently voting. Other facts indicated the person intended to retain another state as his domicile.
The next pertinent inquiry is whether a military person evidences a change of his or her domicile to Virginia by the nonexempt spouse's registration to vote. The Supreme Court of Virginia, in Commonwealth v. Rutherford, 160 Va. 524, 169 S.E. 909 (1933), decided that the domicile of an individual for Virginia tax purposes is not controlled by the fact that the individual's spouse is registered to vote in Virginia. Thus, the military person's domicile for tax purposes is not controlled by the spouse's registration to vote.
The final inquiry to be made is whether the joint ownership of the personal property is determinative of its taxable status. It has been noted by this Office that property jointly owned is assessed to all owners of the property, making them jointly and severally liable for the tax. See 1976-1977 Report of the Attorney General at 285. Thus, property owned jointly by a military person and a nonexempt person is fully subject to taxation to the nonexempt person.
In the case of the jointly owned motor vehicle, a Virginia locality has authority under § 58-834 to assess a property tax in the name of the military person's spouse if the vehicle is "normally garaged, stored or parked" in the locality, unless the spouse is a domiciliary of another state and has paid a personal property tax on the vehicle to the state of her domicile. See § 58-834.1. Thus, domicile in another state is a condition which the nonmilitary spouse must satisfy in order to avoid taxation under § 58-834. Accordingly, because registering to vote is one of several factors to be considered in determining domicile, it follows that registration to vote may affect that person's domicile and, therefore, eligibility for tax exemption under § 58-834.
1 The exception for non-Virginia domiciliaries who pay taxes on vehicles to the state of domicile is available to all under § 58-834, not simply to the spouses of military persons.
Attorney General's Opinion