Tax Type
Individual Income Tax
Description
Residency; Actual vs. domicile
Topic
Residency
Taxpayers
Date Issued
05-19-2000
May 19, 2000
Re: § 58.1-1821 Application: Individual Income Tax
Dear ****
This will respond to your letter in which you request a redetermination of the residency status of ****** (the "Taxpayer") for the taxable years ended December 31, 1995 through 1997. I apologize for the delay in responding.
FACTS
For all years involved, the Taxpayer was a domiciliary resident of another state and maintained a place of abode in Virginia while carrying out assigned duties for his employer in Washington, D.C. Based on the number of days the Taxpayer resided in Virginia, the Taxpayer was determined to be actual resident of Virginia and assessed tax on his income for the periods in question. The Taxpayer protests the assessments asserting that he is a "legal" resident of another state to which he pays taxes and contests Virginia's method of determining actual days residing in Virginia.
DETERMINATION
Title 23 of the Virginia Administrative Code ("VAC") 10-110-30 provides that for determining the income tax liability of any individual, the term "a resident" includes (1) any individual domiciled in this Commonwealth (domiciliary resident), and (2) any individual who is not domiciled in this Commonwealth but who maintains a place of abode (actual resident) in Virginia for more than 183 days (in the aggregate) during the taxable year. An individual may be an actual resident of Virginia even though he retains his legal domicile elsewhere.
Public Document ("P.D.") 98-183 (10-30-98) (copy enclosed) explains the department's position on the definition of a day for income tax purposes as used in 23 VAC 10-110-30. Pursuant to this P.D., a "day" is defined as any portion of a day in which a taxpayer is physically present except for a part of a day during which an individual is present, solely, while in transit to a destination outside Virginia. In the instant case, the Taxpayer resided in Virginia at the request of his employer for the purpose of providing services to his employer in Virginia and surrounding states. Based on P.D. 98-183, the Taxpayer's physical presence in Virginia for any part of a day would count as a day in the determination as to whether the Taxpayer was an actual resident of Virginia.
Because the Taxpayer maintained a place of abode in Virginia for at least 183 days during the 1995 through 1997 taxable years, he was an actual resident of Virginia for income tax purposes. As such, the Taxpayer is required to file a Virginia return and pay Virginia tax on his income from all sources. Accordingly, the department finds that the assessments are correct. To avoid the accrual of additional interest, the assessments in the amount of $**** interest for 1995, **** respectively for 1996, and **** for 1997) should be paid within the next 30 days. Please send your payment to *****, Department of Taxation, Office of Tax Policy, Post Office Box 1880, Richmond, Virginia 23218-1880. If you have any questions regarding this determination, please contact ***** of the Office of Tax Policy at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/21756P
Re: § 58.1-1821 Application: Individual Income Tax
Dear ****
This will respond to your letter in which you request a redetermination of the residency status of ****** (the "Taxpayer") for the taxable years ended December 31, 1995 through 1997. I apologize for the delay in responding.
FACTS
For all years involved, the Taxpayer was a domiciliary resident of another state and maintained a place of abode in Virginia while carrying out assigned duties for his employer in Washington, D.C. Based on the number of days the Taxpayer resided in Virginia, the Taxpayer was determined to be actual resident of Virginia and assessed tax on his income for the periods in question. The Taxpayer protests the assessments asserting that he is a "legal" resident of another state to which he pays taxes and contests Virginia's method of determining actual days residing in Virginia.
DETERMINATION
Title 23 of the Virginia Administrative Code ("VAC") 10-110-30 provides that for determining the income tax liability of any individual, the term "a resident" includes (1) any individual domiciled in this Commonwealth (domiciliary resident), and (2) any individual who is not domiciled in this Commonwealth but who maintains a place of abode (actual resident) in Virginia for more than 183 days (in the aggregate) during the taxable year. An individual may be an actual resident of Virginia even though he retains his legal domicile elsewhere.
Public Document ("P.D.") 98-183 (10-30-98) (copy enclosed) explains the department's position on the definition of a day for income tax purposes as used in 23 VAC 10-110-30. Pursuant to this P.D., a "day" is defined as any portion of a day in which a taxpayer is physically present except for a part of a day during which an individual is present, solely, while in transit to a destination outside Virginia. In the instant case, the Taxpayer resided in Virginia at the request of his employer for the purpose of providing services to his employer in Virginia and surrounding states. Based on P.D. 98-183, the Taxpayer's physical presence in Virginia for any part of a day would count as a day in the determination as to whether the Taxpayer was an actual resident of Virginia.
Because the Taxpayer maintained a place of abode in Virginia for at least 183 days during the 1995 through 1997 taxable years, he was an actual resident of Virginia for income tax purposes. As such, the Taxpayer is required to file a Virginia return and pay Virginia tax on his income from all sources. Accordingly, the department finds that the assessments are correct. To avoid the accrual of additional interest, the assessments in the amount of $**** interest for 1995, **** respectively for 1996, and **** for 1997) should be paid within the next 30 days. Please send your payment to *****, Department of Taxation, Office of Tax Policy, Post Office Box 1880, Richmond, Virginia 23218-1880. If you have any questions regarding this determination, please contact ***** of the Office of Tax Policy at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/21756P
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Rulings of the Tax Commissioner