12-99 | Virginia Tax

Tax Type

Individual Income Tax

Description

Taxpayer has not met the burden of proving Virginia domicile abandoned.

Topic

Domicile

Records/Returns/Payments

Date Issued

06-15-2012

June 15, 2012

Re: § 58.1-1821 Application: Individual Income Tax

Dear *****:

This will reply to your letter in which you seek correction of the individual income tax assessment issued to ***** (the "Taxpayer") for the taxable year ended December 31, 2008.

FACTS

The Department received information from the Internal Revenue Service (IRS) that indicated the Taxpayer may be subject to Virginia individual income tax. The Department requested additional information from the Taxpayer. When there was no response, the Department issued an assessment for the 2008 taxable year.

The Taxpayer appeals the assessment, contending she was a resident of ***** (County A) from December 2007 until December 2010. The Taxpayer also states that when she returned from Country A, she became a resident of ***** (State 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 or another country who has not abandoned his Virginia residency continues to be 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 domicile. The Department determines a taxpayer's intent through the information provided. The Taxpayer has the burden of proving that he or she has established or abandoned his or her Virginia domicile.

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

Domicile depends upon no one factor combination of circumstances, but from the whole taken together, it must be determined in each particular case. 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.

The Taxpayer indicates that she maintained a place of abode, a driver's license, registered a motor vehicle and received financial statements in Country A. In addition, the Taxpayer provided a copy of her income tax return as proof of income tax paid to County A for the year at issue. The Department requested documentation of the Taxpayer's voting history and an official transcript of the Taxpayer's 2008 federal income tax return. The Taxpayer contends she was unable to secure the voting history and provided an incomplete, personal copy of her 2008 federal income tax return that could not be considered for review.

The Taxpayer performed a number of actions indicating an intent to maintain domicile within Virginia. The Taxpayer maintained a permanent place of abode and motor vehicle registrations in Virginia. The Taxpayer held a Virginia driver's license that was renewed in February 2007 and an additional motor vehicle was registered in May 2008. The Taxpayer avers that she surrendered her Virginia driver's license to Country A; however, Department of Motor Vehicle (DMV) records indicate the Taxpayer surrendered the Virginia driver's in February 2011, in exchange for a State A driver's license. Further, the Taxpayer continued to receive financial documents at the Virginia address.

Based on all the facts presented, I find that the Taxpayer has not met the burden of proving that she abandoned her Virginia domicile. Though the Taxpayer may have rented a residence and registered a vehicle in Country A during her absence from Virginia, she continued to maintain multiple domiciliary connections with Virginia. Accordingly, the assessment for the 2008 taxable year is upheld.

The Code of Virginia sections cited 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 regarding this determination, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.

- - - - Sincerely,

- - - - Craig M. Burns
        Tax Commissioner

AR/1-4899365618.D

Rulings of the Tax Commissioner