October 24, 2018
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, 2014.
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 2014 taxable year. A review of the Department’s records showed that the Taxpayer had not filed a return. The Department requested information from the Taxpayer in order to determine if his income was taxable in Virginia. Based on a review of the information provided by the Taxpayer, the Department determined that the Taxpayer’s income was subject to Virginia income tax because he was a domiciliary resident of Virginia, and an assessment was issued. The Taxpayer appeals, contending he was a resident of ***** (State A).
Two classes of residents, a domiciliary resident and an actual resident, are set forth in Virginia 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 established some connections to State A indicating an intent to establish domicile. He accepted employment in State A and began living and working there in July 2013. While living in State A, he leased several personal residences. The employment appears to have been for an indefinite duration, but he returned to Virginia in August 2015 after a layoff. While he was working in State A, he had his W-2s sent to his State A address.
The Taxpayer also maintained a number of connections with Virginia. He maintained a personal residence in Virginia, in which his spouse still lived and to which some third party information returns such as 1099s and other financial documents were mailed. He also filed his 2013 federal income tax return (due in 2014) using the Virginia address. In addition, his vehicles continued to be registered in Virginia, and he retained his Virginia 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 acknowledges that a change of domicile occurs as part of a process in which no single factor is dispositive. As stated above, a change of domicile requires two elements to be satisfied concurrently. First, a taxpayer must establish a new domicile in another place by being physically present there with the intention to remain permanently or indefinitely. Second, the old domicile must be abandoned with no intention to return.
The Department expects that when taxpayers are seeking a permanent change of domicile, they will normally register vehicles, obtain a new driver’s license, register to vote and perform other official acts indicating their intent to change domicile. To the extent such connections may be retained with Virginia, it appears that the taxpayer may not have been certain that they intended to abandon the Virginia domicile. If a permanent change of residence were intended, there would be no need to retain such connections with the former state. In addition, when a domicile has already clearly been established in one state, splitting time and connections between states raises doubts as to an individual’s true intentions.
In this case, while the Taxpayer established certain connections in State A indicative of a change in domicile, the Taxpayer failed to prove his intent to abandon his Virginia domicile. Accordingly, the Taxpayer remained a domiciled resident of Virginia during the 2014 taxable year.
The assessment at issue was made based on the best information available to the Department pursuant to Virginia Code § 58.1-111. The Taxpayer, however, may have information that better represents his Virginia income tax liability for the taxable year at issue. Therefore, he should file a 2014 Virginia income tax return. 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: *****. The return will be reviewed and processed, and the assessment will be adjusted as warranted. If the return is not received within the allotted time, the assessment will be adjusted based on the best 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 regarding this determination, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
Craig M. Burns