October 13, 2020
Re: § 58.1-1821 Application: Individual Income Tax
This will reply to your letter in which you seek correction of the individual income tax assessments issued to ***** (the “Taxpayer”) for the taxable year ended December 31, 2017.
The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may have been required to file a Virginia income tax return for the 2017 taxable year. A review of the Department’s records showed that the Taxpayer had not filed a return for the taxable year at issue. The Department requested additional information from the Taxpayer in order to determine if his income was taxable in Virginia. After reviewing the information provided, the Department issued an assessment against the Taxpayer for the 2017 taxable year. The Taxpayer appeals, contending he was a resident of ***** (State A) in 2017.
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. See Virginia Code § 58.1-205. 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 moved from State A to Virginia in June 2011 upon accepting new employment. He obtained a Virginia driver’s license in December 2011, but still maintained his State A driver’s license. The Taxpayer returned to and began residing in State A at the end of 2015. In October 2017, the Taxpayer registered a vehicle and leased a residence in Virginia. He renewed his Virginia driver’s license in July 2019.
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).
His employment in State A was terminated in November 2017. The Taxpayer states in his correspondence that he obtained the Virginia residence in order to search for new employment. He indicates that he only spent a few days in Virginia during the October through November 2017 time period.
Virginia’s conformity to federal income tax law is set forth in Virginia Code § 58.1-301, which provides that the terms used in the Virginia income tax statutes will have the same meaning as used in the Internal Revenue Code (IRC). Further, conformity does not extend to terms, concepts, or principles specifically provided for in Title 58.1 of the Code of Virginia. For individual income tax purposes, Virginia conforms to federal law in that it starts the computation of Virginia taxable income with federal adjusted gross income (FAGI). Income included in the FAGI of a Virginia resident is subject to taxation by Virginia, unless it is specifically exempt as a Virginia modification pursuant to Virginia Code §§ 58.1-322.01 through 58.1-322.04. There is no exemption for income earned while residing in a foreign country.
Virginia Code § 58.1-303 provides that a taxpayer from another state or country who becomes a Virginia resident during the taxable year is subject to taxation for the period in which they were a Virginia resident. Accordingly, Virginia taxable income is computed by determining income, deductions, subtractions, additions and modifications attributable to the period of residence in Virginia. In addition, part-year residents may claim a portion of their Virginia personal exemptions, but the exemptions will be prorated based upon the number of days that the taxpayer was a Virginia resident. Further, part-year residents may claim a prorated Virginia standard deduction if they claim the standard deduction for federal income tax purposes.
Pursuant to Virginia Code § 58.1-303, part-year residents are subject to tax only on their income that is attributable to Virginia. Title 23 of the Virginia Administrative Code (VAC) 10-110-40 B specifically defines income attributable to Virginia as “that which is received during the portion of the year in which the individual is a Virginia resident.” Taxpayers that are part-year Virginia residents are required to file Virginia part-year income tax returns if they have taxable income earned while they resided in the Commonwealth.
The Taxpayer indicates that he obtained the Virginia residence in October 2017 in order to seek new employment. He contends that he should not be liable for any Virginia income tax for the 2017 taxable year because he spent very few days in the Commonwealth during 2017.
The Department considers a change of domicile to be part of a process and the change is generally considered to have occurred at the beginning of that process even when official connections such as driver's licenses, vehicle registrations and voter’s registrations were not obtained until later. See P.D. 16-138 (6/24/2016) and P.D. 19-19 (3/26/2019). In this case, the Taxpayer registered a vehicle and leased a residence in Virginia prior to the termination of his employment in State A.
While the Taxpayer retained some connections with Virginia, I find that the he successfully ended his Virginia residence and began residing in State A in 2015. I also find, however, that the Taxpayer took significant steps to reestablish his Virginia domicile in October 2017.
Because the Taxpayer changed his domiciliary residence to Virginia, he would be considered a part-year resident under Virginia law from October 2017 through the end of the year. As such, the Taxpayer must file a 2017 Virginia part-year resident return with the Department within 60 days from the date of this letter. Please send the return to the Virginia Department of Taxation, Appeals and Rulings, P.O. Box 27203, Richmond, Virginia, 232261-7203, Attn: *****. Once the part-year return has been filed, it will be processed and the assessment will be adjusted accordingly. If the return is not filed, the assessment will be considered to be correct and collection action may resume.
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 *****.
Craig M. Burns