Tax Type
Individual Income Tax
Description
Residency
Topic
Taxpayers
Date Issued
06-10-1999
June 10, 1999
Re: Sec. 58.1-1821 Application: Individual Income Tax
Dear****
This will reply to your letter concerning the assessment of individual income tax against ***** (the ``Taxpayer') for the 1994 through 1996 taxable years. I apologize for the delay in responding.
FACTS
The Taxpayer was employed in another state (State A) for the years in question. In 1989, the Taxpayer purchased a house in Virginia with his fiance. The couple married in 1994. The Taxpayer had vehicles registered in Virginia from December 1993 to December 1996 and maintained a Virginia driver's license during this time period. The Taxpayer did not have a State A driver's license nor any vehicles registered in State A from 1994 through 1996. The Taxpayer maintained Virginia bank accounts during the contested taxable years. The Taxpayer's State A voter registration expired in 1993. His federal informational returns were mailed to a Virginia Post office box.
Under audit, the department determined that the Taxpayer was a domiciliary resident of Virginia for the 1994 through 1996 taxable years. You contend that you have always been a resident of State A and did not intend to change your domicile to Virginia.
DETERMINATION
Two classes of residents, a domiciliary resident and an actual resident, are set forth in Code of Virginia Sec. 58.1-302. The domiciliary residence of a person means that the permanent place of residence of a taxpayer and the place to which he intends to return even though he may actually reside elsewhere. For a person to change domiciliary residency to Virginia, that person must intend to abandon his old domicile with no intention of returning to that same domicile. Concurrently, that person must acquire a new domicile where that person is physically present with the intention to remain there permanently or indefinitely. An actual resident of Virginia means a person who, for an aggregate of more than 183 days of the taxable year, maintained his place of abode within Virginia. A Virginia domiciliary resident working in other parts of the country who has not abandoned his Virginia residency continues to be subject to Virginia taxation. Additionally, a person who is not a domiciliary resident of Virginia, but who stays in Virginia for an aggregate of more than 183 days is also subject to Virginia taxation.
In determining domicile, consideration may be given to the individual's expressed intent, conduct, and all attendant circumstances including, but not limited to, financial independence, profession or employment, income sources, residence of spouse, marital status, sites of real and tangible property, motor vehicle registration and licensing, and such other factors as may be reasonably deemed necessary to determine the person's domicile. A person's true intention must be determined with reference to all of the facts and circumstances of the particular case. A simple declaration is not sufficient to establish residency.
The determinative question is whether the Taxpayer gave up his State A domicile and became a Virginia domiciliary resident during the taxable years in question. While, the Taxpayer engaged in some activities consistent with becoming a Virginia domiciliary resident, he also engaged in activities consistent with maintaining his State A domicile. He maintained a home in State A and his employment was based there during the taxable years in question. Although, the Taxpayer's job required constant travel outside State A, he spent less than 60 days per year in Virginia. In fact, the evidence indicates he did nothing that would indicate he intended to abandon domicile in State A.
The evidence demonstrates that the Taxpayer did not surrender his State A domicile for the 1994 through 1996 taxable years. As such, the department's assessment will be abated. If you have any questions about this determination, you may contact ***** at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/13228B
Re: Sec. 58.1-1821 Application: Individual Income Tax
Dear****
This will reply to your letter concerning the assessment of individual income tax against ***** (the ``Taxpayer') for the 1994 through 1996 taxable years. I apologize for the delay in responding.
FACTS
The Taxpayer was employed in another state (State A) for the years in question. In 1989, the Taxpayer purchased a house in Virginia with his fiance. The couple married in 1994. The Taxpayer had vehicles registered in Virginia from December 1993 to December 1996 and maintained a Virginia driver's license during this time period. The Taxpayer did not have a State A driver's license nor any vehicles registered in State A from 1994 through 1996. The Taxpayer maintained Virginia bank accounts during the contested taxable years. The Taxpayer's State A voter registration expired in 1993. His federal informational returns were mailed to a Virginia Post office box.
Under audit, the department determined that the Taxpayer was a domiciliary resident of Virginia for the 1994 through 1996 taxable years. You contend that you have always been a resident of State A and did not intend to change your domicile to Virginia.
DETERMINATION
Two classes of residents, a domiciliary resident and an actual resident, are set forth in Code of Virginia Sec. 58.1-302. The domiciliary residence of a person means that the permanent place of residence of a taxpayer and the place to which he intends to return even though he may actually reside elsewhere. For a person to change domiciliary residency to Virginia, that person must intend to abandon his old domicile with no intention of returning to that same domicile. Concurrently, that person must acquire a new domicile where that person is physically present with the intention to remain there permanently or indefinitely. An actual resident of Virginia means a person who, for an aggregate of more than 183 days of the taxable year, maintained his place of abode within Virginia. A Virginia domiciliary resident working in other parts of the country who has not abandoned his Virginia residency continues to be subject to Virginia taxation. Additionally, a person who is not a domiciliary resident of Virginia, but who stays in Virginia for an aggregate of more than 183 days is also subject to Virginia taxation.
In determining domicile, consideration may be given to the individual's expressed intent, conduct, and all attendant circumstances including, but not limited to, financial independence, profession or employment, income sources, residence of spouse, marital status, sites of real and tangible property, motor vehicle registration and licensing, and such other factors as may be reasonably deemed necessary to determine the person's domicile. A person's true intention must be determined with reference to all of the facts and circumstances of the particular case. A simple declaration is not sufficient to establish residency.
The determinative question is whether the Taxpayer gave up his State A domicile and became a Virginia domiciliary resident during the taxable years in question. While, the Taxpayer engaged in some activities consistent with becoming a Virginia domiciliary resident, he also engaged in activities consistent with maintaining his State A domicile. He maintained a home in State A and his employment was based there during the taxable years in question. Although, the Taxpayer's job required constant travel outside State A, he spent less than 60 days per year in Virginia. In fact, the evidence indicates he did nothing that would indicate he intended to abandon domicile in State A.
The evidence demonstrates that the Taxpayer did not surrender his State A domicile for the 1994 through 1996 taxable years. As such, the department's assessment will be abated. If you have any questions about this determination, you may contact ***** at *****.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/13228B
Rulings of the Tax Commissioner