Tax Type
Individual Income Tax
Description
Foreign service officer; Part-year return
Topic
Residency
Date Issued
10-17-1986
October 17, 1986
Re: Virginia Code §58.1-1821 Application
Individual Income Tax
Dear *********************
This will reply to your letter of December 10, 1985 in which you apply for correction of the assessment issued for taxable year 1984 to your clients, ************** (Taxpayers).
FACTS
*************** is an employee of the United States Department of State. He is a foreign service officer and is currently serving at the United States Embassy in Kingston, Jamaica. He was a resident of California when he joined the foreign service in 1962. Since that time he has had ten assignments, both within and without the United States. During his last assignment in Washington, D. C., Taxpayers purchased a home in Virginia, which they still own and are currently renting.
Taxpayers moved from Virginia on June 30, 1984 to Kingston, Jamaica. They filed a Virginia Part-Year Individual Income Tax. Return for taxable year 1984. The department adjusted the return to reflect the department's position that Taxpayers were full-year domiciliary residents of Virginia. The department's position is predicated upon the contention that Taxpayers have not established the new domicile in Jamaica, necessary to demonstrate the abandonment of their Virginia domicile.
You protest, on behalf of your clients, this adjustment by the department. You contend that Taxpayers were actual residents of Virginia and not required to establish a new domicile in order to properly file a part-year return.
DETERMINATION
For purposes of income taxation there are two classes of residents in Virginia, (1) domiciliary residents and (2) actual residents. Domiciliary residents are those whose legal domicile is Virginia. Any person who is a domiciliary resident, who have not moved from Virginia with the intention of permanently residing outside of Virginia, is still a domiciliary resident even though he may be actually living somewhere else.
An actual resident is any individual who is not domiciled in this State, but who actually maintains a place of abode in Virginia for more than 183 days during the taxable year. An individual may remain an actual resident of Virginia until such time that he demonstrates the intent and actions necessary to establish his domicile in Virginia. A person's true intention must be determined with reference to all of the facts and circumstances of the particular case.
Based upon the facts presented in your letter and upon the information provided by Taxpayers in the Virginia Domicile Questionnaire that they completed August 11, 1985, Taxpayers were actual residents of Virginia during their most recent assignment in Virginia. They never established a domicile in Virginia. They properly filed their 1984 Virginia Part-Year Individual Income Tax Return. The assessment will be abated in full and a refund issued.
In future years, Taxpayers should file Virginia Nonresident Individual Income Tax Returns (subject to the minimum filing requirements) to report the income they receive from their rental property they own in Virginia.
Sincerely,
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner