Rulings of the Tax Commissioner

Ruling of Commissioner, P.D. 86-182


Dear ****

This will reply to your letters of January 7, 1986 and February 17, 1986, in which you apply for the correction of the individual income tax assessments issued to your client, * * * (Taxpayer).

FACTS

Taxpayer serves as a seaman on ocean-going tug boats which are owned and operated by a Virginia corporation. These tugs perform services between various ports on the Eastern Seaboard and the Gulf of Mexico. During the years in question, Taxpayer was employed on tugs for 235 days in 1980, 183 days in 1981, 249 days in 1982 and 172 days in 1983. Taxpayer, in 1978, purchased a house in Virginia which he uses for the periods of time that he is in Virginia.

Taxpayer was assessed Virginia individual income taxes for the above mentioned years. You protest these assessments on behalf of your client, contending that he is not a Virginia resident, but a resident of Kentucky; as such, not liable for income taxation in Virginia.

DETERMINATION

Virginia Code Sec. 58.1-302 defines ``Resident' as ``. . . every person domiciled in Virginia at any time during the taxable year and every other person who, for an aggregate of more than 183 days of the taxable year, maintained his place of abode within Virginia, whether domiciled in Virginia or not.' This Section goes on to provide that,

In determining domicile, consideration may be given to the applicant's expressed intent, conduct, and all attendant circumstances including, but not limited to, financial independence, business pursuits, employment, residence of parents, spouse and children, if any, leasehold, sites of personal property owned by the applicant, motor vehicle and other personal property registration, residence for purposes of voting as proven by registration to vote, if any, and other such factors as may reasonably be deemed necessary to determine the person's domicile.

Even though Taxpayer contends that he is a resident of Kentucky, the relevant facts indicate that he is domiciled, for income tax purposes, in Virginia. Taxpayer has worked for a Virginia corporation continuously since at least 1970, his cars have been registered in Virginia since 1966, he has owned a home in Virginia since 1978, he maintains his banking accounts in Virginia and pays personal property tax to Virginia. Taxpayer while last registered to vote in Kentucky, has not done so for an unknown period of time. Additionally, he has also failed to file state income tax returns with any state during his period of absence. While maintaining that Kentucky is his true residence, he has failed to maintain the close ties (such as filing Kentucky income tax returns) necessary to demonstrate that he has not abandoned Kentucky and accepted Virginia as his domicile. Unless Taxpayer can furnish the department with copies of income tax returns filed with the state of Kentucky, indicating that he is a resident of that state, we must conclude that he has abandoned his Kentucky domicile for income tax purposes.

Based upon the foregoing, I find no basis for the correction of the assessments in this case.


W. H. Forst
Tax Commissioner

Rulings of the Tax Commissioner