Did a husband change Virginia domicile when his employer transferred him out of state but his wife and children temporarily remained in their Virginia home?

Subject

Husband changed domicile after an employment transfer while his family remained temporarily

Plain-English summary

Virginia accepted the husband's domicile change effective July 1, 2006. His employer transferred him back to State A, where he rented an apartment, bought a home, obtained a driver's license, registered a vehicle, and registered to vote.

His wife and children remained in the jointly owned Virginia home so the children could finish their education, and the family retained Virginia vehicles. The Department found those ties were explained by the temporary family arrangement rather than an intent by the husband to return to Virginia.

The couple had correctly used married filing separately on a combined part-year return. Virginia abated the assessment and directed a refund with interest.

What this means for you

• Spouses can have different domiciles when their facts and intentions differ.
• A temporary family separation for education did not prevent the transferred spouse's domicile change.
• Housing, licensing, registration, voting, and employer confirmation supplied concrete evidence of intent.
• Filing status must reflect each spouse's actual residency period.

Common questions

When did the husband change domicile?

July 1, 2006.

Did the Virginia home and family ties defeat the change?

No. The ruling treated them as consequences of a temporary educational arrangement.

What filing method was accepted?

Married filing separately on a combined part-year Virginia return.

Citations and references

• Va. Code § 58.1-302.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 09-133

Original ruling text

September 8, 2009

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 "Taxpayers") for the taxable year ended December 31, 2006.

FACTS

The Taxpayers, a husband and a wife, moved from * (State A) in 2000 when the husband was transferred to Virginia by his employer. In July 2006, the husband was transferred back to State A.

The husband rented an apartment for 11 months and purchased a home is State A. He also obtained a driver's license, registered a motor vehicle and registered to vote in State A. The wife remained in Virginia so their children could finish their education. They lived in the home owned by the Taxpayers. The Taxpayers also owned several motor vehicles registered in Virginia.

Under the audit, the Department determined the husband was a domiciliary resident of Virginia for the 2006 taxable year and assessed additional tax. The Taxpayers have paid the assessment but contend the husband took sufficient steps to change his domicile to State A in 2006.

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. 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.

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.

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 residency.

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 original domicile. If the information is inadequate to meet this burden, the Department must conclude that the Taxpayer did intend to return to his or her original domicile.

The husband performed many activities in State A consistent with changing domicile. His employer has provided confirmation of his transfer to State A in 2006. The husband established a permanent place of abode by renting an apartment until he was able to purchase a house in State A. He also registered a motor vehicle, obtained a driver's license, and registered to vote in 2006.

At the same time, the husband maintained a number of connections with Virginia. He maintained a home with his wife, who remained a domiciliary resident in Virginia, owned motor vehicles registered in Virginia, and his children received in-state tuition. The husband did not sign the applications for in-state tuition. The children were entitled to in-state tuition based on the fact that the wife was a Virginia resident. Further, the Taxpayers state that the wife will join the husband in Texas once their children have graduated from college.

The Department concedes that it is difficult to know whether a Taxpayer intends to return to Virginia. 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 return to Virginia.

In this case, the husband has met his burden of proving that he established domicile in State A on July 1, 2006, with the intention to remain there permanently or indefinitely. At the same time, he, abandoned his Virginia domicile. The connections the husband retained with Virginia are solely due to the fact that the wife remains in Virginia until their children complete their education.

Based on the facts and circumstances presented, I find that the Taxpayers correctly filed a part-year return using the "married, filing separately on a combined return" status for the taxable year 2006. The return accurately reflects the husband's change in domicile to State A effective July 1, 2006. Accordingly, the assessment at issue has been abated, and a refund with applicable interest will be issued shortly.

The Code of Virginia sections and public documents 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,

Janie E. Bowen

Tax Commissioner

AR/1-2809439841.D