Tax Type
Individual Income Tax
Description
Is Taxpayer Liable To File State Return
Topic
Persons Subject to Tax
Date Issued
10-24-2001
October 24, 2001
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****
This will reply to your letter concerning your Virginia individual income tax assessment for the taxable year 1993. Your letter is being handled as an application pursuant to Code of Virginia § 58.1-1821. Copies of cited materials are enclosed. I apologize for the delay in the department's response.
FACTS
The department received information from the Internal Revenue Service and determined that you may have been liable for Virginia income tax. A review of our records indicated that you had not filed a Virginia income tax return for taxable year 1993. A letter sent by the department for the taxable year 1993 indicated that a federal audit had been conducted, and your income was subject to federal taxation. Upon your request, you were provided a copy of the federal income examination changes. This document was returned to the department along with your statement that the property was accepted for value and exempt from levy.
DETERMINATION
Code of Virginia § 58.1-301 provides that terminology and references used in Title 58.1 of the Code of Virginia will have the same meaning as provided in the Internal Revenue Code unless a different meaning is clearly required. The Virginia individual income tax "conforms" to federal law because it starts the computation of Virginia taxable income with federal adjusted gross income (FAGI). To the extent that income is included in FAGI, it is also subject to taxation by Virginia.
Code of Virginia § 58.1-341 provides that a Virginia resident who is required to file a federal income tax return is also required to file a Virginia income tax return unless the resident is exempt from filing under Code of Virginia § 58.1-321. Code of Virginia § 58.1-302 specifically defines "resident" to include every person domiciled in Virginia and every person who maintains a place of abode in Virginia for an aggregate of more than 183 days of the taxable year. Additionally, even if a resident is not required to file a federal return but has Virginia adjusted gross income that exceeds the filing threshold, the resident is required to file a Virginia income tax return. When a resident does not file a proper Virginia return, Internal Revenue Code § 6103(d) authorizes the department to obtain information from the Internal Revenue Service that will help in determining the resident's tax liability.
You have provided no documentation to show that you are were not subject to tax as a Virginia resident for the 1993 taxable year. Based on the information provided, there is no basis to abate the Virginia individual income tax assessment for the taxable year 1993. As a Virginia resident, you are subject to Virginia taxation and must file a Virginia income tax return for the 1993 taxable year and for any taxable year, including years prior to or subsequent, for which the proper Virginia income tax returns have not been filed. Further action in your case will be held in abeyance for 60 days awaiting the filing of your 1993 Virginia income tax return.
Please submit your 1993 Virginia income tax return along with the payment of any liability within 60 days from the date of this letter to the attention of ***** Virginia Department of Taxation, Office of Policy and Administration, Appeals and Rulings, Post Office Box 1880, Richmond, Virginia 23218-1880. If you have questions regarding this matter, you may contact ***** at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
AR/313731E
Rulings of the Tax Commissioner