November 7, 2025
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will respond to your letter in which you seek correction of the individual income tax assessment issued to you (the “Taxpayer”) for the taxable year ended December 31, 2019.
FACTS
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 2019 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 his income was taxable in Virginia. Based on the information provided, the Department determined that he was subject to Virginia income tax as a domiciliary resident of Virginia and issued an assessment. The Taxpayer submitted an application for correction, contending he was a resident of ***** (Country A) during 2019.
DETERMINATION
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 that person and the place to which that person intends to return even though they may be residing elsewhere. An actual resident of Virginia means a person who, for an aggregate of more than 183 days of the taxable year, maintained their place of abode within Virginia. A Virginia domiciliary resident continues to be subject to Virginia taxation even if they work in another state or country. 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 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. See Cooper’s Adm’r v. Commonwealth, 121 Va. 338, 347 (1917). The burden of proof that an individual has abandoned or failed to establish domicile in Virginia rests with the individual. See Title 23 of the Virginia Administrative Code (VAC) 10-110-30 B 3.
The determination of whether a change of domicile has occurred is highly dependent on the facts and circumstances of the individual case, and no single factor is dispositive. Factors to be considered include, but are not limited to, the following:
sites of real and tangible property, location of savings and checking accounts, motor vehicle registration and licensing, motor vehicle operator’s license, voter registration, membership in clubs and civic groups, place of business, profession or employment, charitable contributions, location of schools attended by children, length of time of residence, place of birth and marriage, residence of family, reason for abandoning or acquiring domicile, and, in the case of a minor or married person, domicile of parents, husband, or wife and/or children. Id.
The Taxpayer was a domiciliary resident of ***** (State A) until late 2007 when he accepted employment in Country A. The Taxpayer engaged in actions consistent with establishing domicile in Country A. He leased a residence in Country A and remained employed there until 2023. In addition, he held a Country A residence card and driver’s license and registered a vehicle there.
The Taxpayer, however, held some connections with Virginia. He acquired a Virginia driver’s license in 2010, which he renewed in 2018. He also owned a vehicle that was registered in Virginia. He maintained a Virginia voter’s registration and had consistently voted by absentee ballot since 2012. In addition, the Taxpayer and his spouse purchased a residence in Virginia in 2016. The Taxpayer’s spouse and children moved into the Virginia residence during 2018, and their children began attending Virginia schools.
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 they retain 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 Taxpayer explains that when his State A driver’s license expired in 2010, he obtained a Virginia driver’s license to use as a convenience during international travel. He also explains that the Virginia residence and registered vehicle were used by his spouse and children during 2019. He did not live in the Virginia residence during 2019 except for occasional visits totaling approximately 32 days.
With regard to the Taxpayer’s Virginia voting registration, the Department has observed that federal law generally allows United States citizens living abroad to vote in federal elections using a voter’s registration from the state of the individual’s last domicile. See 52 U.S.C. § 20310 (formerly 42 U.S.C. § 1973ff-6). See also P.D. 10-203 (9/1/2010). In addition, the exercise of such federal voting rights by an overseas citizen shall not affect the domicile or residence of such citizen for purposes of any federal, state, or local tax. See 52 U.S.C. § 20309. As such, even though the Taxpayer voted in federal elections using a Virginia voter’s registration while he resided in Country A, that fact would have no bearing on this determination.
Having connections, such as personal residences, driver’s licenses, motor vehicle registrations, and voter’s registrations, indicates that an individual had the intent to establish domicile in the state or country where such connections were established. Acquiring domicile in a new location, however, requires both intent and personal presence. See Cooper’s Adm’r, 121 Va. at 347, in which the Virginia Supreme Court observed that neither physical presence alone, nor expressed intention alone are sufficient to create a legal domicile for taxation purposes. The Department has determined that individuals cannot establish a domicile despite having some or all of the above connections if they have not yet resided in the jurisdiction with the intention to remain permanently or indefinitely. See P.D. 13-97 (6/11/2013), P.D. 15-4 (1/8/2015), and P.D. 23-110 (10/19/2023).
After carefully considering all of the evidence presented, the Department finds that the Taxpayer established domicile in Country A in 2008 and did not reestablish physical presence in Virginia with the concurrent intent to remain permanently or indefinitely prior to or during the 2019 taxable year. Although the Taxpayer was physically present in Virginia for short visitsmade occasional visits to Virginia totally approximately 32 days in 2019, temporary visits are not sufficient to establish the requisite intent to remain permanently or indefinitely despite the fact that the Taxpayer had established some connections to Virginia. See, e.g., P.D. 15-4. The assessment for the 2019 taxable year will, therefore, be abated.
The Code of Virginia sections and regulation cited are available online at law.lis.virginia.gov. The public documents cited are available at tax.virginia.gov in the Laws, Rules, & Decisions section of the Department’s website. If you have any questions regarding this determination, you may contact ***** in the Office of Tax Policy and Legal Affairs, Tax Adjudication and Resolution Division, at ***** or *****@tax.virginia.gov.
Sincerely,
James J. Alex
Tax Commissioner
Commonwealth of Virginia
AR/4923.Y