Tax Type
Individual Income Tax
Description
"Resident" and "non-resident" defined
Topic
Taxpayers' Remedies
Date Issued
09-04-1985
September 4. 1985
Re: §58.1-1821 Application/Individual Income Tax
Dear ****
This will reply to your letter of June 20, 1985, in which you submit an application for correction of individual income tax assessed to you for taxable year 1982.
The Virginia individual income tax is applicable only to "resident" individuals. The term "resident" is defined in Section 58.1-3O2 of the Code of Virginia as meaning "every person domiciled in Virginia at any time during the taxable year and every other person who, for an aggregate of more than 183 days of the taxable year, maintained his place of abode within Virginia, whether domiciled in Virginia or not." Thus, as noted in Virginia Code Section 58.1-3O3, any person who becomes a resident of Virginia during a taxable year "shall be taxable as a resident for only that portion of the taxable year during which he was a resident of the Commonwealth "
Based upon the information you have submitted, the additional income upon which tax was assessed was earned by your wife while she was a resident of New Mexico during a portion of taxable year 1982. Accordingly, such income would not be taxable in Virginia under the provisions of Virginia Code Section 58.1-3O3.
As you and your wife filed a full-year resident tax return for 1982, normally an adjustment would be required under Virginia Code Section 58.1-3O3 to reduce your wife's personal exemptions to "an amount which bears the same ratio to the full exemptions as the number of days during which...(she) was a resident of the Commonwealth bears to 365 days." Likewise, the deductions attributable to your wife would normally be adjusted. In this case, however, it is readily apparent that neither you or your wife were residents of Virginia in 1982 and that the return filed by you for that year was unnecessary. Rather, you were domiciled in Maryland and your wife was domiciled in New Mexico and Maryland during that year. A Virginia address was used by you merely for convenience and neither you or your wife spent more than 183 days in Virginia during the year. The same holds true for the taxable years 1981 and 1983 for which Virginia returns were filed by you.
As neither you or your wife was a resident of Virginia in 1982, I find basis for the relief of the assessment issued to you as well as for the refund of all income taxes paid for that year. Similar refunds will be issued for 1981 and 1983 taxes paid in addition to the 1982 refund.
Sincerely,
W. H. Forst
Tax Commissioner
Re: §58.1-1821 Application/Individual Income Tax
Dear ****
This will reply to your letter of June 20, 1985, in which you submit an application for correction of individual income tax assessed to you for taxable year 1982.
The Virginia individual income tax is applicable only to "resident" individuals. The term "resident" is defined in Section 58.1-3O2 of the Code of Virginia as meaning "every person domiciled in Virginia at any time during the taxable year and every other person who, for an aggregate of more than 183 days of the taxable year, maintained his place of abode within Virginia, whether domiciled in Virginia or not." Thus, as noted in Virginia Code Section 58.1-3O3, any person who becomes a resident of Virginia during a taxable year "shall be taxable as a resident for only that portion of the taxable year during which he was a resident of the Commonwealth "
Based upon the information you have submitted, the additional income upon which tax was assessed was earned by your wife while she was a resident of New Mexico during a portion of taxable year 1982. Accordingly, such income would not be taxable in Virginia under the provisions of Virginia Code Section 58.1-3O3.
As you and your wife filed a full-year resident tax return for 1982, normally an adjustment would be required under Virginia Code Section 58.1-3O3 to reduce your wife's personal exemptions to "an amount which bears the same ratio to the full exemptions as the number of days during which...(she) was a resident of the Commonwealth bears to 365 days." Likewise, the deductions attributable to your wife would normally be adjusted. In this case, however, it is readily apparent that neither you or your wife were residents of Virginia in 1982 and that the return filed by you for that year was unnecessary. Rather, you were domiciled in Maryland and your wife was domiciled in New Mexico and Maryland during that year. A Virginia address was used by you merely for convenience and neither you or your wife spent more than 183 days in Virginia during the year. The same holds true for the taxable years 1981 and 1983 for which Virginia returns were filed by you.
As neither you or your wife was a resident of Virginia in 1982, I find basis for the relief of the assessment issued to you as well as for the refund of all income taxes paid for that year. Similar refunds will be issued for 1981 and 1983 taxes paid in addition to the 1982 refund.
Sincerely,
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner