Individual Income Tax
Taxpayer has not abandoned her Virginia domicile
Persons Subject to Tax
January 30, 2014
Re: § 58.1-1821 Application: Individual Income Tax
This will respond to your letter in which you seek correction of the individual income tax assessment issued to ***** (the "Taxpayer") for the taxable year ended
December 31, 2009. I apologize for the delay in responding to y appeal.
The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may be required to file a Virginia income tax return for the 2009 taxable year. A review of the Department's records showed that the Taxpayer had not filed a return, and the Department requested information to verify whether she was subject to Virginia income tax. Under audit, the Department determined that the Taxpayer was a domiciliary resident of Virginia and issued an assessment. The Taxpayer appeals, contending she was a resident of ***** (Country A) during the taxable year at issue.
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 the permanent place of residence of a taxpayer and the place to which he intends to return even though he may reside elsewhere. For a person to change domiciliary residency to another state or country, that person must intend to abandon his Virginia domicile with no intention of returning to Virginia. Concurrently, that person must acquire a new domicile where that person is physically present with the intention to remain there permanently or indefinitely. 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 Virginia domiciliary resident, therefore, working in other parts of the country or in another country who has not abandoned his Virginia residency continues to be subject to Virginia taxation. Additionally, 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.
In order to change from one legal domicile to another legal domicile, there must be (1) actual abandonment of the old domicile, coupled with an intent not to return to it, and (2) an acquisition of a new domicile at another place, which must be formed by personal presence and an intent to remain there permanently or indefinitely. The burden of proving that the domicile has been changed lies with the person alleging the change.
In determining domicile, consideration may be given to the 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, situs of real or tangible property, motor vehicle registration and licensing, and such other factors as may be reasonably deemed necessary to determine the person's domicile. A person's true intention must be determined with reference to all the facts and circumstances of the particular case. A simple declaration is not sufficient to establish residency.
The Department determines a taxpayer's intent through the information provided. A taxpayer has the burden of proving that he or she has abandoned his or her Virginia domicile. If the information is inadequate to meet this burden, the Tax Commissioner must conclude that he or she intended to remain indefinitely in Virginia.
The Taxpayer has provided evidence indicating her intent to establish domicile in Country A in 2004. In January 2004, the Taxpayer and her husband moved to Country A and established a permanent place of abode. Since then, the husband has held positions in Country A's government, and the Taxpayer has been employed in Country A by several United States companies doing business there.
The Taxpayer also maintained significant connections with Virginia. The Taxpayer's spouse continued to own the residence in Virginia in which he and the Taxpayer lived prior to 2004. No evidence has been provided to indicate that he attempted to sell the real estate or convert it into a rental property. As such, it appears that the property was available to the Taxpayer and her spouse if and when they chose to return to Virginia.
In addition, the Taxpayer, a foreign national, applied for citizenship after moving to the United States. She was granted United States citizenship in 2006. As a result, she was able to obtain a Virginia voter's registration. She also renewed her Virginia driver's license in 2008. All of these events occurred after the date the Taxpayer contends she abandoned her Virginia domicile for Country A.
Virginia Code § 46.2-323.1 states, "No driver's license... shall be issued to any person who is not a Virginia resident." In fact, this section states that every person applying for a driver's license must execute and furnish to the Commissioner of the Department of Motor Vehicles (DMV) a statement that certifies that the applicant is a Virginia resident. The Department has found that an individual may successfully establish a domicile outside Virginia even if he retains a Virginia driver's license. See Public Document (P.D.) 00-151 (8/18/2000). However, obtaining or renewing a Virginia driver's license is considered to be a strong indicator of intent to retain domiciliary residency in Virginia. See P.D. 02-149 (12/9/2002).
The concept of domicile requires both the establishment of a new residency in fact and an intent to abandon the old domicile and remain in the new. See Mitchell v. United States, 88 U.S. 350, 1874 WL 17410 (1874). The mere absence from a previous domicile, however long, is insufficient to prove intent. The Taxpayer must also prove she intended to change her domicile permanently even though she established a permanent place of abode in Country A. See P.D. 13-89 (6/10/2013).
The Department acknowledges that a change in domicile occurs as part of a process in which no single factor is dispositive. The evidence indicates the Taxpayer continued to seek the benefits of United States citizenship and Virginia residency even after she moved to Country A. Based on this evidence, I find that the Taxpayer has not abandoned her Virginia domicile and, therefore, remained a domiciliary resident of Virginia for the 2009 taxable year.
Based on the foregoing, the assessment is upheld. The Department's records indicate the assessment has been previously satisfied; therefore, no further action is required.
The Code of Virginia sections and public documents cited are available on-line at www.tax.virginia.gov in the Laws, Rules & Decisions section of the Department's web site. If you have any questions regarding this determination, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
Craig M. Burns