89-160 | Virginia Tax

Tax Type

Individual Income Tax

Description

Residency; Temporary presence in Virginia

Topic

Residency

Date Issued

05-22-1989

May 22, 1989

Re: Ruling Request
Individual Income Tax

Dear****************

This is in reply to your letter dated February 23, 1989, in which you request a ruling regarding your residency status for purposes of Virginia income taxation.

FACTS

Prior to your retirement from the military on August 1, 1988, you were stationed in Stockholm, Sweden. At this time your legal domiciliary residence was in New Hampshire. Upon your retirement from the military August 1, 1988, you moved to Virginia. Within one year from your retirement and your move into Virginia, you plan to move to a permanent home, out of Virginia. Since moving into Virginia, you have had no income other than your military retirement pay and interest from a savings account.

You request that the department rule that you were a nonresident of Virginia for taxable year 1988.

RULING

An individual may be subject to Virginia income taxation as a resident if he is either a domiciliary resident or an actual resident of Virginia. Individuals who do not meet the requirements necessary to be a Virginia resident, are considered nonresidents. Based upon the facts as presented in your letter and upon the definition of a resident under Virginia Code §58.1-302, the department has determined that for taxable year 1988 you were a nonresident of Virginia. This ruling assumes that you did not take any of the steps necessary to change your domicile from New Hampshire to Virginia. (See VR 630-2-302, copy enclosed.)

The taxability of income received by a nonresident of Virginia is contingent upon not only the source of the income, but upon the type of income received. Virginia Code §58.1-302 provides that Virginia source income includes:

- l. Items of income, gain, loss and deduction attributable to:
  - - a. The ownership of any interest in real or tangible personal property in Virginia; or
      b. A business, trade, profession or occupation carried on in Virginia.
  2. Income from intangible personal property, including annuities, dividends, interest, royalties and gains from the disposition of intangible personal property to the extent that such income is from property employed by the taxpayer in a business, trade, profession, or occupation carried on in Virginia.

Based upon the fact that you had no income other than your military retirement and nonbusiness interest income, it appears that you had no Virginia source income as a nonresident for taxable year 1988.

Virginia Code §58.1-302 also provides:

- "Resident" applies only to natural persons and includes, for the purpose of determining liability to the taxes imposed by this chapter upon the income of any taxable year 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. The word "resident" shall not include any member of the United States Congress who is domiciled in another state. (Emphasis added.)

Therefore, if you continue to maintain a place of abode in Virginia for more than 183 days in taxable year 1989, you will be an actual resident for taxable 1989. As such, you will be taxed on your entire income, regardless of the source. If you are here for more than 183 days, but less than the full year, you may file as a part-year resident of Virginia.

Sincerely,

W. H. Forst
Tax Commissioner

Rulings of the Tax Commissioner