Could a nonfiler overturn a Virginia income-tax assessment merely by saying he lived in another state and then attended out-of-state graduate school?

Subject

The Taxpayer has failed to provide any documentation to show the Department's assessment is incorrect.

Plain-English summary

IRS information suggested that the taxpayer may have needed to file a 2012 Virginia individual income-tax return. He had not filed, did not respond to Virginia's request for more information, and was assessed from the information available.

On appeal, he said he lived in one other state for half the year and attended graduate school in another for the rest. But a change of domicile requires proof that the person abandoned the old domicile with no intent to return and acquired a new domicile through presence and an intent to remain permanently or indefinitely. A declaration alone is not enough.

Because the taxpayer supplied no requested documentation, he did not overcome the statutory presumption that the assessment was correct. Virginia upheld the best-information assessment.

The Department nevertheless granted one final 30-day opportunity to document domicile in the claimed state or file a 2012 Virginia resident return. It would adjust the assessment if warranted; otherwise the assessment would stand and collection could begin.

Common questions

Does attending school outside Virginia automatically establish a new domicile? No. The person must prove both abandonment of Virginia domicile and acquisition of a new permanent or indefinite domicile.

Why was the assessment upheld? The taxpayer did not respond to the documentation request and produced nothing showing that the best-information assessment was wrong.

Was there still a chance to correct the liability? Yes. The ruling allowed 30 days for adequate domicile records or a 2012 Virginia resident return.

Citations and references

• Va. Code §§ 58.1-111, 58.1-205, and 58.1-302.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 16-26

Original ruling text

March 10, 2016

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 "Taxpayer") for the taxable year ended December 31, 2012.

FACTS

The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may have been required to file a Virginia individual income tax return for the 2012 taxable year. A review of the Department's records showed the Taxpayer had not filed a return. The Department requested additional information from the Taxpayer in order to determine if his income was subject to Virginia income tax. When a response was not received, the Department issued an assessment. The Taxpayer filed an appeal, contending he was a resident in * (State A) during half of the taxable year then attended graduate school in *** (State B) the remaining half of 2012.

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 reside elsewhere. For a person to change domiciliary residency to another state or country, 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.

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, situs of real or 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 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. A taxpayer has the burden of proving that he or she has abandoned his or her Virginia domicile. If the information is inadequate to meet this burden, the Tax Commissioner must conclude that he or she intended to remain indefinitely in Virginia.

By letter dated November 4, 2015, the Department requested documentation required to determine if the Taxpayer's income was subject to Virginia income tax. To date, the Taxpayer has not responded to the Department's request. Thus, the Taxpayer has failed to provide substantial evidence to support his claim.

Virginia Code § 58.1-205 provides that in any proceeding relating to the interpretation of the tax laws of Virginia, an "assessment of a tax by the Department shall be deemed prima facie correct". As such, the burden of proof is on the Taxpayers to show they were not subject to income tax in Virginia. The Taxpayer has failed to provide any documentation to show the Department's assessment is incorrect. Therefore, the assessment is upheld.

The assessment at issue was made based on the best information available to the Department pursuant to Va. Code § 58.1-111. The Taxpayer may have information that better represents his Virginia income tax liability for the year at issue. Therefore, the Taxpayer will be granted one last opportunity to provide adequate documentation with regard to their domiciliary status in State A or file a 2012 Virginia resident tax return. The documentation should be submitted within 30 days from the date of this letter to: Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, P.O. Box 27203, Richmond, Virginia 23161-7203, Attention: *. Upon receipt, the documentation will be reviewed and assessment will be adjusted, as appropriate. If the documentation is not received within the allotted time, the assessment will be considered to be correct as issued and collection actions may result.

The Code of Virginia sections 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 T ax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns
Tax Commissioner

AR/1-6155775377.D