March 12, 2018
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will reply to your letter in which you seek a refund of individual income tax paid by ***** (the “Taxpayers”) for the taxable year ended December 31, 2015. I apologize for the delay in responding to your request.
FACTS
The Taxpayers, a husband and wife, filed a 2015 Virginia nonresident individual income tax return and claimed credit for income tax paid on the husband's behalf by a pass-through entity (PTE) filing a unified Virginia return for its nonresident owners. The Taxpayers also claimed a credit for income tax paid to Arizona, their state of residence. The Department denied the refund claimed on the Taxpayers' return because the husband's income had been included in a unified nonresident return. The Taxpayers appealed, contending that even though the husband participated in the unified nonresident return, they were permitted to file their own return and claim credit for both income tax paid by the PTE and credit for income tax paid to Arizona.
DETERMINATION
Under Virginia Code § 58.1-332 B, a nonresident is permitted to claim a credit against tax on income from Virginia sources when their state of residency provides a substantially similar credit to Virginia residents or imposes a tax upon their income derived from Virginia sources but does not tax income earned in the state by Virginia residents. Because it is dependent on another state granting a similar or reciprocal credit, it may be limited by the credit permitted by the other state. Currently, only residents of Arizona, California, Oregon, and the District of Columbia may qualify for this credit.
Virginia Code § 58.1-395 grants discretionary authority to the Department to permit unified filing under terms acceptable to the Department. The Virginia income tax on the unified return must be computed at the highest rate under Virginia Code § 58.1-320 without the benefit of itemized deductions, standard deductions, personal exemptions, credits for income taxes paid to states of residence, any tax credit carryover amounts, or any other tax credits that are not attributable to the pass-through entity. See Guidelines for Pass-Through Entity Withholding, published as Public Document (P.D.) 15-240 (12/22/2015). The pass-through entity is required to obtain the qualified nonresident owner's consent to be included on the unified return and be subject to the same restrictions as described above. See id.
A unified return is an administrative convenience that allows nonresident partners to pay their respective Virginia tax at the entity level. The need for filing a separate Virginia return for each partner is eliminated. It is a privilege extended by the Department to taxpayers at the taxpayers' election. The convenience to the nonresident partners usually outweighs any benefits that may be lost.
The Taxpayers contend that they were permitted under the Guidelines to file a nonresident return and claim credit for income tax paid by the PTE and income tax paid to their state of residence, Arizona. Under the Guidelines, however, a nonresident owner is only permitted to claim credit for withholding tax paid by the PTE. Nonresident owners included on a unified return are exempt from the PTE withholding requirements. Therefore, there was no PTE withholding tax for which the Taxpayers could claim credit on their nonresident return. In addition, as a participant on the unified Virginia return, the husband relinquished the claim to further benefits such as the credit for income tax paid to his state of residence. Therefore, the denial of the refund for income tax paid for the 2015 taxable year is upheld.
The Code of Virginia sections and public document 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 *****.
Sincerely,
Craig M. Burns
Tax Commissioner
AR/1344.M