09-9 | Virginia Tax

Tax Type

Individual Income Tax

Description

Military wages resulting from combat duty or extended active duty

Topic

Subtractions and Exclusions

Date Issued

02-04-2009

February 4, 2009

Re: § 58.1-1821 Application: Individual Income Tax

Dear *****:

This is in response to your letter appealing the individual income tax assessments issued to ***** (the "Taxpayers") for the taxable years ended December 31, 2005 through 2007.

FACTS

The Taxpayers, a husband and a wife, are residents of Virginia. They claimed subtractions on their 2005 through 2007 Virginia individual income tax returns for military wages resulting from combat duty or extended active duty. The Department disallowed the subtractions for combat duty pay on the 2005 and 2006 Virginia returns, and adjusted the subtraction for extended active duty pay on the 2007 return. The Taxpayers appeals the assessments, asserting that the military wages at issue are exempt from Virginia tax.

DETERMINATION

Virginia Code § 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 (IRC) 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) as defined by the IRC as it existed on December 31, 2007, with two exceptions. See Public Document (P.D.) 08-182 (10/17/2008). 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 Va. Code § 58.1-322.

Combat Duty Pay

To the extent included in FAGI, Va. Code § 58.1-322 C 21 allows military service personnel to subtract all military pay and allowances attributable to service in a combat zone or a qualified hazardous duty area designated by order of the President of the United States with the consent of Congress.

Pursuant to IRC § 112, enlisted military personnel can exclude amounts received as compensation for active duty service in a combat zone or a qualified hazardous duty area designated by order of the President of the United States. In addition, officers serving in these areas are allowed a partial exclusion for such compensation. Because of Virginia's conformity with federal law, the Virginia subtraction only exempts the remaining portion of an officer's military pay attributable to service in a combat zone or a qualified hazardous duty area. Because enlisted military personnel's combat duty pay would not be included in FAGI, it is not eligible for the subtraction.

The husband was on active duty in a combat zone during the 2005 and 2006 taxable years. The information provided gives no indication that any of the husband's combat pay was included in the Taxpayers' FAGI for the taxable years at issue. As such, the subtraction provided by Va. Code § 58.1-322 C 21 is not available, and the Department's adjustment is correct.

Extended Active Duty Pay

To the extent included in FAGI, Va. Code § 58.1-322 C 23 provides military service personnel with a subtraction for up to $15,000 of military basic pay received during a taxable year, provided they are on extended active duty for a period in excess of 90 days. The subtraction is reduced when the amount of military basic pay received by the taxpayer exceeds $15,000 and is fully phased out when basic military pay reaches $30,000. This subtraction is available whether the individual is stationed inside or outside of Virginia.

For 2007, the Taxpayers claimed a military pay subtraction in the amount of $15,000. A review of that return shows that the husband's military pay exceeded $15,000. Under audit, the Department auditor reduced the Taxpayers' subtraction by the amount that the husband's military pay exceeded $15,000. Accordingly, the adjustment to the Taxpayers' military pay subtraction is in accordance with Va. Code § 58.1-322 C 23 and is correct.

Conclusion

The assessments for the 2005 through 2007 taxable years are correct and remain due and payable. The enclosed schedule shows the current balance due. Payment should be mailed to the Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, ATTN: *****, P.O. Box 27203, Richmond, Virginia 23261-7203. Payment must be received within 30 days from the date of this letter to avoid the accrual of additional interest.

The Code of Virginia sections and public document cited, along with other reference materials, are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions about this determination, you may contact ***** at *****.

- - - - Sincerely,

- - - - Janie E. Bowen
        Tax Commissioner

AR/1-2510687408.E

Rulings of the Tax Commissioner