Rulings of the Tax Commissioner
Document Number: 97-140
Tax Type:Individual Income Tax
Brief Description:Itemized deduction; Standard deduction; Nonresident aliens
Topics:Taxable Income
Date Issued:03/24/1997

March 24, 1997


Re: Request for Ruling: Individual Income Tax

Dear*****************

This is in reply to your letter of November 18, 1996, in which you request a ruling regarding the Virginia individual income tax return of nonresident alien individuals. I apologize for the delay in responding to your letter.

FACTS


Nonresident alien individuals may be required to file a federal nonresident alien income tax return. While such individuals are allowed certain limited itemized deductions, they may not claim a federal standard deduction. You request a ruling on whether the Virginia standard deduction may be claimed by nonresident alien individuals when no standard deduction is allowed on the federal nonresident alien return and no itemized deduction amounts are actually claimed.

RULING


Code of Virginia 58.1-301 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. One of the ways that Virginia "conforms" to federal law is in the treatment of the itemized and standard deductions when computing Virginia taxable income.

Internal Revenue Code (IRC) 63(c)(6)(B) provides that a nonresident alien individual is not eligible for the federal standard deduction. Treasury Regulation (Treas. Reg.) 1.873-1(a)(4) further provides that, "The standard deduction shall not be allowed in computing the taxable income of a nonresident alien individual." This regulation addresses the itemized deductions that may be claimed by nonresident aliens in determining federal taxable income, however, these deductions are limited. A nonresident alien, therefore, is only allowed to claim certain itemize deductions and is not allowed to claim a standard deduction under federal law.

Title 23 of Virginia Administrative Code (VAC) 10-110-143(1)(a), copy enclosed, provides in pertinent part:

As a nonresident alien must itemize deductions for federal tax purposes, the individual must itemize deductions for Virginia tax purposes. If a nonresident alien does not claim an itemized deduction amount on the federal tax return, a standard deduction may not be claimed on the federal or Virginia returns.

Thank you for discussing your concerns with the department. If you have further questions, please contact**********at ******** .


Sincerely,



Danny M. Payne
Tax Commissioner




OTP/11932N