October 12, 2017
Re: § 58.1-1821 Application: Individual Income Tax
This will reply 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, 2013.
The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may have been required to file a Virginia individual income tax return for the 2013 taxable year. A review of the Department's records showed that the Taxpayer had not filed a return. The Department requested additional information from the Taxpayer in order to determine if her income was taxable in Virginia. When a response was not received, the Department issued an assessment. The Taxpayer appeals, contending she was a resident of ***** (State A).
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 Department must conclude that he or she intended to remain indefinitely in Virginia.
The Taxpayer states that she was living in State A in 2013. As evidence, the Taxpayer submitted several Form W-2s indicating she was employed by State A employers and had State A income tax withheld. The Form W-2s were also sent to the Taxpayer at a State A address. The Taxpayer claims she is currently registered to vote in State A, but she does not know when she voted.
The Taxpayer also maintained some connections with Virginia. She filed her 2013 federal and State A returns using a Virginia address. She also maintained a Virginia motor vehicle registration and driver's license.
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 Department's records indicate that the Taxpayer obtained a Virginia driver's license in November 2011, retained it throughout 2013 and continues to hold it.
Although it appears that the Taxpayer was living and working in State A during 2013, that fact alone is not determinative of whether she changed her domicile. Also, the Department requested information regarding whether the Taxpayer had ever leased or owned any personal residences outside Virginia. In her response, the Taxpayer indicated that she has leased a residence in State A since 2016, but she listed no other residences or time periods. As such, the response raises questions regarding the Taxpayer's intent to establish a permanent or indefinite residence in State A prior to or during 2013. In addition, although the Taxpayer claims she currently has a State A voter's registration, she did not indicate when it was first obtained. She also does not know when she voted. Further, because the Taxpayer maintained a Virginia driver's license and motor vehicle registration and filed her 2013 federal and State A returns with a Virginia address, it is unclear whether she truly intended to abandon her Virginia domicile.
As stated above, 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. After carefully considering the information provided, the Department concludes that the Taxpayer has failed to prove she changed her domicile to State A prior to or during the 2013 taxable year. As such, the Taxpayer remained taxable as a domiciliary resident of Virginia for the 2013 taxable year.
The assessment at issue was made based on the best information available to the Department pursuant to Va. Code § 58.1-111. Because the Taxpayer was required to file a Virginia income tax return, the Department was correct in issuing the assessment. The Taxpayer, however, may have information that better represents her Virginia income tax liability for the taxable year at issue. Therefore, she should file a 2013 Virginia resident income tax return to more accurately reflect her Virginia tax liability. The Taxpayer should be aware that she may claim a credit for income tax paid to State A pursuant to Va. Code § 58.1-332.
The return should be submitted within 30 days from the date of this letter to: Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, P.O. Box 27203, Richmond, Virginia 23161-7203, Attention: *****. Upon receipt, the return will be reviewed and the assessment will be adjusted, as appropriate. If the return is not received within the allotted time, the assessment will be adjusted based on the information available.
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 about this determination, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
Craig M. Burns