December 22, 2016
Re: § 58.1-1821 Application: Individual Income Tax
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, 2015.
The Taxpayer, an active duty military service member, filed a joint Virginia income tax return with his spouse for the 2015 taxable year. In computing Virginia income tax, the Taxpayer subtracted his active duty basic pay. Under audit, the Department adjusted the Taxpayer's income tax return to include the military basic pay and issued an assessment. The Taxpayer appealed the assessment, contending his military basic pay was not subject to Virginia income tax due to his active duty military status and domicile in ***** (State A).
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 in another 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.
The Servicemembers Civil Relief Act (the “Act”), codified at 50 U.S.C. § 571 et seq., provides that military personnel do not abandon their legal domicile solely by complying with military orders that require them to take residence in a different state or country. The Act, however, does not preclude the possibility that armed forces personnel may acquire a new legal domicile in the state where they are stationed, and thus subject themselves to taxation by that state as if they were a domiciliary resident. In order for the change of domicile to occur, there must be an abandonment of the old domicile and the acquisition of a new one. This change must be exhibited by an individual's intent and conduct. See United States of America v. Minnesota Department of Revenue, 97 F. Supp. 2d 973 (2000).
In general, the Department will not seek to tax an active duty military service member so long as the member maintains sufficient connections with another state to indicate intent to maintain domicile there. Such connections would include filing a State of Legal Residence Certificate (Department of Defense Form 2058), obtaining a driver's license, registering to vote and voting in local elections, registering an automobile, and exercising other benefits or obligations of a particular state. As long as a military service member maintains such connections, they would be considered to be a resident of the other state even though they work, live, and establish a permanent place of abode in Virginia. See Public Document (P.D.) 10-237 (9/30/2010).
In this case, the Taxpayer claims he was a resident of State A. He did not, however, provide proof of his residency in State A or any evidence of his current domicile in State A. Instead, information provided indicates the Taxpayer has owned a home in Virginia with his spouse since 2004, resided at the home during the 2015 taxable year, registered motor vehicles in Virginia in 2013 and 2015, maintained a Virginia driver's license since 2009, and has been registered to vote in Virginia since 2013.
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 states that every person applying for a driver's license must execute and furnish to the Commissioner of the Department of Motor Vehicles (DMV) a statement that certifies that the applicant is a Virginia resident. The Department has found that an individual may successfully establish a domicile outside Virginia even if he retains a Virginia 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 establishing or retain domiciliary residency in Virginia. See P.D. 02-149 (12/09/2002).
Furthermore, Virginia Code § 46.2-305 exempts United States armed forces service members stationed in Virginia from the requirement of obtaining a Virginia driver's license, and Va. Code § 46.2-600 waives the registration requirement for any vehicle located in Virginia that is registered to a nonresident service member on active duty, nonresident activated reserve or national guard member, or nonresident mobilized reserve or national guard member living in Virginia. Because a nonresident service member is not required to obtain a Virginia driver's license or register a motor vehicle in Virginia, an action obtaining or maintaining a Virginia driver's license shows an intent to make Virginia the service member's domiciliary residence.
With regard to voting, an individual qualified to vote in Virginia must be a resident of the precinct in which they offer to vote. See Va. Code § 24.2-101. Federal law, however, requires states to establish procedures in order to permit absentee voting in federal elections for absent uniformed services voters. See 42 U.S.C. § 1973ff-1. Under 42 U.S.C. § 1973ff-6(1), a uniformed services voter who is absent from their place of residence due to military service must be permitted to vote where the member would otherwise be qualified to vote. To comply with federal law, the Virginia Board of Elections (VBE) has established procedures allowing overseas voters to be eligible for a temporary voter registration in order to vote in elections. Thus, while permitted to register in Virginia, the service member was not required to do so in order to vote in general elections. See P.D. 13-184 (10/18/2013).
The Department determines a Taxpayer's intent through the information provided. The Taxpayer has the burden of proving that he maintained sufficient connections in State A to continue to claim State A as his domicile. Based on the information provided, the Department finds that the Taxpayer was domiciled in Virginia for the 2015 taxable year.
Accordingly, the Department's assessment is upheld. An updated bill will be issued shortly. The Taxpayer should pay the balance due within 30 days to avoid additional interest.
The Code of Virginia sections and public documents cited are available on-line at www.tax.virginia.gov in the Laws, Rules & Decisions 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 *****.
Craig M. Burns