Tax Type
Individual Income Tax
Description
Combat pay excluded from FAGI and computation when proportionally allocating itemized deductions
Topic
Accounting Periods and Methods
Federal Conformity
Taxpayers' Remedies
Date Issued
11-30-2011
November 30, 2011
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 assessment issued to your client, ***** (the "Taxpayer") for the taxable year ended December 31, 2007. I apologize for the delay in responding to your letter.
FACTS
The Taxpayer, a resident of Virginia, is married to a nonresident member of the armed forces. For the 2007 taxable year, the couple filed a joint federal income tax return, and the Taxpayer filed a separate Virginia income tax return. The Taxpayer's spouse, a military service member, did not file a Virginia return because he had no income from Virginia sources.
Under review, the Department adjusted the Taxpayer's itemized deductions and exemptions to reflect her percentage of the couple's joint income. The Taxpayer appeals the inclusion of the service member's combat pay in the proportional allocation computation.
DETERMINATION
In cases where a Virginia resident and nonresident spouse file separate state income tax returns, Virginia Code § 58.1-326 grants the Department authority to modify the allocation of exemptions and deductions claimed for federal income tax purposes under Va. Code § 58.1-324. Title 23 of the Virginia Administrative Code (VAC) 10-110-190 B provides that each spouse must account separately for items of income, deductions, and exemptions. However, when such items cannot be accounted for separately, deductions and personal exemptions must be proportionally allocated between each spouse based upon the income attributable to each. See also Public Document (P.D.) 95-251 (9/29/1995).
In P.D. 11-170 (9/29/2011) the Tax Commissioner ruled that the apportionment computation for a resident taxpayer is based on his or her federal adjusted gross income (FAGI). Pursuant to Va. Code § 58.1-322, Virginia starts with the FAGI, requires certain additions, and permits certain deductions and subtractions in computing Virginia taxable income. Accordingly, the Department considers it rational to apportion deductions and exemptions between a husband and wife under Va. Code § 58.1-326 based on FAGI.
In accordance with P.D. 11-170, combat pay excluded from FAGI should also be excluded from the computation when proportionally allocating itemized deductions. In this case, the Department included the spouse's combat pay in the allocation computation. Such methodology is not consistent with P.D. 11-170. Therefore, the assessment will be returned to the auditor to be adjusted in accordance with this determination and P.D. 11-170. A revised bill showing the adjusted assessment will be issued shortly.
The Code of Virginia sections, regulation and the public document cited are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions about this determination, please contact ***** in the Department's Office of Tax Policy, Appeals and Rulings, at *****.
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- Sincerely,
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- Craig M. Burns
Tax Commissioner
- Craig M. Burns
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AR/1-4624196173.D
Rulings of the Tax Commissioner