Tax Type
Individual Income Tax
Description
Retirement pay; Nonresident
Topic
Residency
Date Issued
04-15-1991
April 15, 1991
Re: §58.1-1821 Application: Individual Income Tax
Dear*****************
This will reply to your letter of December 18, 1990, requesting correction of an income tax assessment for the taxable year 1989.
FACTS
You were a career employee with the Foreign Service for approximately 33 years. most of which time was served overseas. Throughout your career you were legally domiciled in Texas, and continue to be domiciled in Texas, presently. In support of this statement you offer that you own a farm in County, Texas, were born and raised in Texas, graduated from high school and college in Texas. and continue to vote in Texas.
When you retired from the Foreign Service in September 1989, you were serving in Argentina. You and your spouse moved into a rental house which you owned in Virginia in late September, with the intention of staying there temporarily while deciding where you would eventually retire. You received your lump sum retirement income payment in late October 1989, while residing in Virginia. Upon advice of the local Commissioner of Revenue's office you filed a Virginia nonresident return for the period of time during 1989 you and your spouse resided outside of the state, and a part-year return for the time you resided in Virginia. You are requesting that you be allowed to file and pay taxes in Virginia as a nonresident for the entire year.
DETERMINATION
Based on your stated intent not to abandon your legal domicile in Texas and the surrounding facts and circumstances you were not a domiciliary resident of Virginia in 1989. Furthermore, because you did not reside in Virginia for more than 183 days in 1989, you and your spouse may be permitted to file and be taxed as Virginia nonresidents for the taxable year 1989.
Va. Code §58.1-302 only subjects nonresidents to tax when they receive income from property located in the state or from a business carried on in the state. and these persons are effectively taxed only on the income attributable to the Virginia property or business.
Retirees who maintain a Virginia domicile or who live in the state for more than 183 days during the year will remain subject to the tax. However, Virginia does not tax the retired pay of persons who lived or were employed here but who have since moved their domicile to another state. If you will mail the return to me, marked "Personal." at 2220 W. Broad Street, Richmond, Va 23220. I will see that the appropriate refund is processed.
Upon receipt of an amended Form 63 for 1989, reporting income to Virginia as nonresidents for the entire year the Department will make the appropriate adjustments for 1989.
Sincerely.
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner