Rulings of the Tax Commissioner
Document Number: 13-56
Tax Type:Individual Income Tax
Brief Description:Failure to file a Virginia income tax return
Topics:Domicile; Federal Conformity; Persons Subject to Tax; Records/Returns/Payments
Date Issued:05/01/2013


May 1, 2013



Re: 58.1-1821 Application: Individual Income Tax

Dear *****:

This will reply to your letter in which you seek correction of the Virginia individual income tax assessments issued to ***** (the "Taxpayer") for the taxable years ended December 31, 2008 through 2009. I apologize for the delay in responding to your appeal.

FACTS


The Department received information from the Internal Revenue Service (IRS) that tax documents for the 2008 and 2009 taxable years were sent to the Taxpayer at a Virginia address. The Department requested additional information from the Taxpayer in order to determine if his income was subject to Virginia income tax. When the Taxpayer did not respond to the information request, the Department issued an assessment. The Taxpayer appeals the assessment, contending he changed his state of residency in May 2008, and all his income was derived from employment in ***** (Country A).

DETERMINATION


Two classes of residents, a domiciliary resident and an actual resident, are set forth in Va. Code 58.1-302. The domiciliary residence of a person means 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 another state, that person must intend to abandon his Virginia domicile with no intention of returning to Virginia. 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, therefore, 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 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 burden of proving that the domicile has been changed lies with the person alleging the change.

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 domicile. The Department determines a taxpayer's intent through the information provided. The Taxpayer has the burden of proving that he or she abandoned his or her Virginia domicile. If the information is inadequate to meet this burden, the Commissioner must conclude that he or she intended to remain indefinitely in Virginia.

While the Taxpayer was serving on an official assignment in Country A for the government of the United States, he does not contend that he changed his domicile to Country A. Instead, he asserts he changed his domiciliary residence from Virginia to ***** (State A) in May 2008 when he registered to vote there. In addition, the Taxpayer appeals the 2009 taxable year, providing the same voter's registration card as evidence of domicile for the 2009 taxable year. The Taxpayer provided no evidence that he moved from Country A into State A during the 2009 taxable year.

In Coopers Adm'r v. Common Wealth, 121 Va. 338, 93 S.E 680 (1917), the Virginia Supreme Court ruled that acquiring domicile in another state requires both intent and personal presence. In this case, the Taxpayer appears to have moved to Country A in 2007 for employment purposes. According to documents provided by the Taxpayer, he spent all of 2008 in Country A. Because he was never physically present in State A during 2008, the Taxpayer could not meet the tests required for changing his domicile to that state.

Further, while holding one's voting privileges in a state is a factor to consider in determining domicile, it is only one factor. All other factors must be considered, such as the Taxpayer's employment, location of family, property ownership, driver's license, residence used for filing federal income tax returns, and withholding state.

The Taxpayer was domiciled in Virginia in 2007. He has failed to provide sufficient evidence that he abandoned his Virginia domicile and acquired a new domicile in State A. Although the Taxpayer severed most of his connections with Virginia, both he and his spouse continued to maintain their Virginia driver's licenses and received federal information returns at a Virginia address. The spouse let her driver's license expire in 2011 while the Taxpayer held his driver's license into 2012.

Virginia Code 46.2-323.1 states, "No driver's license . . . shall be issued to any person who is not a Virginia resident." This section also states that every person applying for a driver's license must execute and furnish to the Commissioner of the Department of Motor Vehicles a statement that certifies that the applicant is a Virginia resident. The Department has also found that an individual may successfully establish a domicile outside Virginia even if they retain a driver's license. See Public Document (P.D.) 00-151 (8/18/2000). However, obtaining or renewing a Virginia driver's license is considered to be a strong indicator of intent to retain domiciliary residency in Virginia. See P.D. 02-149 (12/09/2002).

Based on the information provided, the Department must conclude that the Taxpayer was not present in State A during 2008 or 2009 and therefore, could not have established domiciliary residence there. Accordingly, he will be considered a Virginia domiciliary resident for the 2008 and 2009 taxable years.

As a domiciliary resident, the Taxpayer must file Virginia income tax returns for the 2008 and 2009 taxable years. The returns should be submitted within 30 days from the date of this letter to: Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, P.O. Box 27203, Richmond, Virginia 23261-7203, Attn: *****. If the returns are not filed within the time prescribed, the assessments will be considered to be correct as issued.

The Code of Virginia sections and public documents cited are available on-line at www.tax.virginia.gov in the Laws, Rules, and Decisions section of the Department's website. If you have any questions regarding this determination, you may contact ***** at *****.



Craig M. Burns
Tax Commissioner


AR/1-4950118026.D