Tax Type
Individual Income Tax
Description
Abatement of individual income tax assessments
Topic
Accounting Periods and Methods
Persons Subject to Tax
Residency
Date Issued
12-17-2002
December 17, 2002
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will reply to your letters in which you seek correction of the Virginia individual income tax assessments issued to ***** (the "Taxpayer") for the 1990 through 1996 and 1998 taxable years.
FACTS
The Taxpayer is a merchant seaman who maintains a home in Virginia for himself and his family. The Taxpayer asserts that he did not reside within the state boundaries for more than 183 days during any of the years at issue. The Taxpayer requests abatement of the outstanding individual income tax assessments issued for the 1990 through 1996 and 1998 taxable years.
DETERMINATION
Two classes of residents, a domiciliary resident and an actual resident, are set forth in Code of Virginia § 58.1-302. The domiciliary residence of a person means the permanent place of residence of an individual or the place to which he intends to return even though he may actually reside elsewhere. For an individual to change his domiciliary residency to another state, that individual must intend to abandon his Virginia domicile with no intention of returning to Virginia. Concurrently, that individual must acquire a new domicile, where that individual is physically present with the intention to remain there permanently or indefinitely. An actual resident of Virginia means an individual who, for an aggregate of more than 183 days of the taxable year, maintains a place of abode within Virginia, whether domiciled in Virginia or not.
A Virginia domiciliary resident, therefore, working in other parts of the country, in another country, or, as in your case, employed on board a vessel, who has not abandoned his Virginia residency continues to be subject to Virginia taxation. Additionally, an individual who is not a domiciliary resident of Virginia, but who stays in Virginia for an aggregate of more than 183 days is also subject to Virginia taxation as an actual resident.
In determining domicile, consideration may be given to an individual's expressed intent, conduct, and all attendant circumstances including, but not limited to, financial independence, profession or employment, income sources, residence of spouse, marital status, sites of real and tangible property, motor vehicle registration and licensing, and such other factors as may be reasonably deemed necessary to determine an individual's domicile. An individual's true intention must be determined with reference to all of the facts and circumstances of the particular case. A simple declaration is not sufficient to establish domiciliary residency.
You maintained a home in Virginia for yourself and your family during the years at issue. You have provided no evidence that you have established a domicile outside of Virginia, stating only that you were in Virginia for less than 183 days of each applicable year. An individual does not need to reside in this state for 183 days in order to be a domiciliary resident of Virginia.
I understand you were given the opportunity to submit additional information concerning your domicile during the years at issue, but no information was provided. Based on the information available, I must conclude that you are a domiciliary resident of Virginia. As such, you are subject to taxation on your income, and there is no basis to abate the outstanding assessments.
Payment of the assessment amounts should be sent to the Virginia Department of Taxation, Office of Policy and Administration, Appeals and Rulings, Post Office Box 1880, Richmond, Virginia 23218-1880, Attention: *****. Payment must be made within 30 days from the date of this letter to avoid the accrual of additional interest. The attached schedule shows the outstanding balance for each bill.
If you are unable to pay the balance due in full, you may contact ***** in the Department's Compliance Unit at ***** to arrange a partial payment plan. Please note that while such a payment plan will provide an extended period for payment of the balance due, interest will continue to accrue on the balance until paid.
The Code of Virginia section cited has been included for reference purposes. This and other reference documents are available online in the Tax Policy Library section of the Department's web site, located at www.tax.state.va.us. If you have any questions regarding this determination, you may contact ***** at *****.
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- Sincerely,
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- Kenneth W. Thorson
Tax Commissioner
- Kenneth W. Thorson
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AR/40020E
Rulings of the Tax Commissioner