Tax Type
Individual Income Tax
Description
Exemptions
Topic
Taxable Income
Date Issued
10-29-1998
October 29, 1998
Re: § 58.1-1821 Application: Individual Income Tax
Dear *********
This will reply to your correspondence in which you seek correction of your Virginia individual income tax assessment for the taxable year 1990. I apologize for the delay in responding to your letter.
FACTS
You are a resident of Virginia. You claim to be paid in Federal Reserve Notes, otherwise known as United States currency, which are obligations of the United States that you claim are exempt from taxation by states. Your income, therefore, is exempt from Virginia taxation. You believe that only the gain portion of income derived from wages paid to employees of the United States Government are subject to taxation. Further, as you are not an employee of the United States, your income in not taxable. Consequently, the department issued an assessment since you did not file an individual income tax return for the taxable year 1990. You are contesting this assessment.
DETERMINATION
Code of Virginia § 58.1-301, copy enclosed, provides that terminology and references used in Title 58.1 of the Code of Virginia will have the same meaning as provided in the Internal Revenue Code unless a different meaning is clearly required. For individual income tax purposes, Virginia "conforms' to federal law in that it starts the computation of Virginia taxable income with federal adjusted gross income (FAGI). Income included in FAGI is subject to taxation by Virginia. § 61(a)(1) of the Internal Revenue Code (IRC) clearly sets forth certain types of income, such as wages, salaries, and compensation for personal services. Such income included in the FAGI of a Virginia resident is subject to taxation by Virginia unless it is specifically exempt as a Virginia modification pursuant to Code of Virginia § 58.1-322, copy enclosed.
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- Code of Virginia § 58.1-322(C)(1) provides, in pertinent part, a subtraction for:
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- ncome derived from obligations, or on the sale or exchange of obligations, of the United States and on obligations or securities of any authority, commission or instrumentality of the United States to the extent exempt from state income taxes under the laws of the United States including, but not limited to, stocks, bonds, treasury bills, and treasury notes....
To the extent, therefore, that income from obligations or securities of the United States is included in FAGI, it may be subtracted for Virginia income tax purposes in computing Virginia taxable income. This Virginia statute codifies the exempt status of income from obligations of the United States set forth in 31 USC §3124(a), copy enclosed, which provides that:
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- Stocks and obligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax ... (Emphasis added.)
- Stocks and obligations of the United States Government are exempt from taxation by a State or political subdivision of a State. The exemption applies to each form of taxation that would require the obligation, the interest on the obligation, or both, to be considered in computing a tax ... (Emphasis added.)
Code of Virginia § 58.1-341, copy enclosed, provides that a Virginia resident who is required to file a federal income tax return is also required to file a Virginia income tax return, unless the resident is exempt from filing under Code of Virginia § 58.1-321, copy enclosed. Additionally, even if a resident is not required to file a federal return but has Virginia adjusted gross income that exceeds the filing threshold, the resident is required to file a Virginia income tax return. When a resident does not file a Virginia return, Internal Revenue Code 6103 (d), copy enclosed, authorizes the department to obtain information from the Internal Revenue Service that will help in determining the resident's tax liability.
For the taxable year 1990, the department received information from the Internal Revenue Service indicating that they adjusted your federal tax return. In a letter dated March 23, 1994, the department notified you of this fact and requested that the proper return be filed or explanation be provided concerning why you were not required to file a return. When a sufficient response was not received, an assessment was issued. Code of Virginia § 58.1-312, copy enclosed, provides that an assessment can be issued at any time if a taxpayer fails to report on the Virginia return a federal change or correction that increases federal taxable income. Code of Virginia § 58.1-205, copy enclosed, provides that any assessment issued by the department will be deemed prima facie correct.
Your claim that your income is not subject to Virginia tax because you are paid by Federal Reserve Notes and you are not a federal employee has no basis in fact or law. A person who fails to file income tax returns based solely on such a claim has intentionally understated his or her income tax liability with the intent to evade tax and would be subject to a 100% fraud penalty pursuant to Code of Virginia § 58.1-308, copy enclosed. Furthermore, one who files an application for correction pursuant to Code of Virginia § 58.1-1821, copy enclosed, based solely on such claims has no purpose other than to hinder and delay collection of the proper tax liability. Consequently, collection activity need not be suspended while such applications for correction are being considered.
Based on the information presented, your individual income tax assessment for the taxable year 1990 is correct. Your assessment totals ********* which represents tax of penalty of ********* and interest of ********* updated through the date of this letter. You are hereby requested to pay the balance due of your assessment or file the appropriate Virginia tax return including any returns subsequent to 1990. If the payment and returns are not received within 60 days, collection actions will resume. Your continued refusal to file returns in accordance with Virginia law will justify the 100% fraud penalty and other legal actions to collect the proper tax. Payment and returns should be sent to the attention of Office of Tax Policy, ********* Department of Taxation, Post Office Box 1880, Richmond, Virginia 23218-1880. If you have further questions, ************ may be contacted at *************.
Your letter has been handled pursuant to Code of Virginia § 58.1-1821. If you wish to pursue this matter concerning your 1990 assessment, there is a judicial remedy under Code of Virginia § 58.1-1825, copy enclosed. The application, however, should be filed within three years from the date of the assessment or one year from the date of this letter, whichever is the later. Additionally, the assessment must be paid or the appropriate bond posted before the court application is deemed filed.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/13174N
Rulings of the Tax Commissioner