Tax Type
Individual Income Tax
Description
Sufficient evidence provided to demonstrate less than 183 days spent in Virginia
Topic
Domicile
Persons Subject to Tax
Taxpayers' Remedies
Date Issued
11-27-2007
November 27, 2007
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will reply to your letter in which you seek correction of the individual income tax assessments issued to ***** (the "Taxpayer") for the taxable years ended December 31, 2004 and 2005. I note that the assessments have been paid in full.
FACTS
The Taxpayer is a domiciliary resident of ***** (State A). The Taxpayer and her husband own residences in State A, ***** (State B) and Virginia. In May 2004, the husband, who was also a State A resident, moved permanently into the couple's Virginia residence.
In 2004 and 2005, the Taxpayer filed a nonresident Virginia income tax return using the married filing separately filing status. The husband filed a part-year Virginia income tax return for 2004 and a resident income tax return for 2005 using the married filing separately filing status.
The Taxpayer was audited for the 2004 and 2005 taxable years. The auditor determined that the Taxpayer was an actual resident of Virginia and assessed additional tax and interest. The Taxpayer contests the auditor's findings, contending that she was not an actual resident of Virginia.
DETERMINATION
Two classes of residents, a domiciliary resident and an actual resident, are set forth in Va. Code § 58.1-302. The domiciliary residence of a person means that the permanent place of residence of a taxpayer is Virginia and the place to which he intends to return is Virginia even though he may actually reside elsewhere. An actual resident of Virginia means a person who, for an aggregate of more than 183 days of the taxable year, maintained his place of abode within Virginia. A person 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.
A taxpayer can be an actual resident of Virginia without establishing domicile in the Commonwealth. See Public Document (P.D.) 00-167 (9/8/2000). As such, even though the Taxpayer is a domiciliary resident of State A, she could be an actual resident of Virginia.
The Department's auditor determined that, because the husband changed his domicile to Virginia in 2004 and 2005, the Taxpayer spent more than 183 days in Virginia. The Taxpayer provided detailed documentation, including a daily log and a number of receipts for the last six months of the year, to the auditor to show that she did, in fact, spend less than 183 days in Virginia during the taxable years at issue. The auditor concluded that the information provided was not sufficient to prove that the Taxpayer was not an actual resident and issued the assessments.
After reviewing the information submitted with your letter and during the audit, it is my determination that the Taxpayer has provided sufficient evidence to demonstrate that she spent less than 183 days in Virginia during the 2004 and 2005 taxable years. Therefore, she was not an actual resident of Virginia during the taxable years at issue. The assessments issued for the taxable years ended December 31, 2004 and 2005 will be abated and a refund, with interest, will be issued shortly.
The Code of Virginia sections and public document cited are available online at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions regarding this determination, you may contact ***** in the Office of Policy and Administration, Appeals and Rulings, at *****.
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- Sincerely,
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Janie E. Bowen
Tax Commissioner
AR/1-1118661735B
Rulings of the Tax Commissioner