Tax Type
Individual Income Tax
Description
Residency; Military personnel
Topic
Taxpayers' Remedies
Date Issued
11-18-1994
November 18, 1994
Re: §58.1-1821 Application: Individual Income Tax
Dear***********
This will reply to your letter concerning the assessment issued to**************(the "Taxpayer") for his failure to file a 1991 Virginia Individual Income Tax return.
FACTS
The Taxpayer, a member of the United States Air Force, entered the military from Virginia in June 1975 when he was 17 years old. At that time, his father, who also was in the military, was stationed in Virginia. The father's domiciliary residence and home of record was Florida. The Taxpayer states that his domiciliary state, before he entered the Air Force, was the same as his father's domiciliary state. Therefore, when he entered the Air Force, his domicile was Florida, as indicated by his military personnel records. Further, since entering the military, he intends to maintain Florida as his state of domicile and plans to return there after retirement. The Taxpayer never lived in Florida; however, on several occasions, he stayed with Florida relatives for short periods of time. In 1980, he registered to vote in Florida and has voted in elections.
In June 1989, the Taxpayer moved to Virginia pursuant to military orders. While stationed in Virginia, he purchased a house. However, the Taxpayer states that he purchased houses while stationed in other states and sold them upon receipt of military orders to relocate. His automobiles have had Virginia plates since 1989, however, he did not have a Virginia motor vehicle operators license in 1991. During his stay in Virginia, the only income received by the Taxpayer was military income.
Because the Taxpayer did not file a 1991 income tax return, the department issued an assessment under its compliance program. The Taxpayer contends that, as a military person and Florida resident, he is not required to file a Virginia tax return. Therefore, he is requesting that the assessment be abated.
DETERMINATION
As a general rule, the domicile of a minor is the domicile of his parents or other person on whom the minor is legally dependent. There is also substantial legal precedent holding that the domicile of the father is, in legal contemplation, the domicile of his minor children. 25 Am. Jur. 2D Domicil 63.
The Soldiers and Sailors Civil Relief Act states that a person shall not be deemed to have lost a residence or domicile in any state solely by reason of being absent in compliance with military orders. The Act does not preclude the possibility that military personnel may subject themselves to taxation in the state in which they are stationed by acquiring a new legal domicile therein. However, as indicated by a number of Virginia court cases (e.g., Talley v. Commonwealth, 127 Va. 516, 103 S.E. 612 (1920); State-Planters Bank v. Commonwealth, 174 Va. 289, 6 S.E.2d 629 (1940); and Layton v. Pribble, 200 Va. 405, 105 S.E.2d 864 (1958)) 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 intent of a person is determined from their declaration as well as their conduct.
Although the Taxpayer has stayed in Florida for short periods of time, the domicile of the Taxpayer while a minor was considered the same as the father's domicile. Further, based on his voting status, the status of his military records, and other facts and circumstances taken as a whole, the Taxpayer demonstrated his intention to maintain Florida as his domiciliary residence upon entering the military. Therefore, I find basis to conclude that, as a domiciliary resident of Florida living in Virginia pursuant to military orders, the Taxpayer was not required to file a Virginia return on his military income. As a result, the 1991 assessment will be abated in full.
If other assistance is needed, please do not hesitate to contact the department.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/8301N
Rulings of the Tax Commissioner