Tax Type
Individual Income Tax
Description
Temporary living quarters in Virginia
Topic
Persons Subject to Tax
Residency
Date Issued
10-17-1988
October 17, 1988
Re: Ruling Request/Individual Income Tax
Dear******************
This will reply to your letter dated August 23, 1988 in which you request a ruling on your liability for Virginia income tax while maintaining temporary living quarters in the Commonwealth.
FACTS
****** ("the taxpayer") moved to the Washington metropolitan area during October 1987 to accept the position of*********************. The taxpayer maintained a temporary residence in Virginia from October 28, 1987 until February 19, 1988. The taxpayer moved to his present residence in Washington, D.C. on February 19, 1988. The taxpayer maintains that at no time during his stay in Virginia was it his intent to permanently reside there.
The taxpayer had Virginia income tax withheld from his salary during his temporary residence in Virginia. The taxpayer filed Form 763, Virginia Nonresident Income Tax Return for 1987 and received a refund of ******* of the total******Virginia income tax withheld during 1987.
Because his temporary residence in Virginia was less than 183 days, the taxpayer contends that under §58.1-303 of the Code of Virginia he is not liable for the payment of Virginia income tax for taxable years 1987 and 1988. The taxpayer received a refund of **** from the***** payroll office for amounts withheld from his salary for Virginia income tax for January 1, 1988 through February 18, 1988. The taxpayer also believes an amended return should be filed for 1987 to recover the remainder of the amount withheld during that year.
DETERMINATION
For purposes of determining income tax liability in Virginia, there are two types of residents: (1) domiciliary and (2) actual. A domiciliary resident is one whose legal domicile is Virginia. §58.1-302 of the Code of Virginia defines domicile as "the permanent place of residence of a taxpayer and the place to which he intends to return even though he may actually reside elsewhere." An actual resident is any individual who is not domiciled in this state but who maintains a place of abode in Virginia for more than 183 days during the taxable year.
Based upon the information you have presented, the department finds that you were neither a domiciliary or actual resident for the taxable years in question.
A nonresident of Virginia is also subject to the tax on any Virginia source income. Income from Virginia source means that amount attributable to property within Virginia, or to the conduct of a trade, business, occupation or profession within Virginia. In this instance, the taxpayer's salary was not from a Virginia source and the taxpayer would not be taxable as a nonresident.
Therefore, based upon the fact presented, the taxpayer would not be liable for the payment of Virginia income tax for taxable year 1987 or taxable year 1988. An amended return should be filed for 1987 to obtain a refund of Virginia income tax withheld.
Sincerely
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner