Did an unsupported claim of moving away overcome Virginia's estimated 2008 resident income-tax assessment?

Subject

The burden of proof is on the Taxpayer to show he was not subject to income tax in Virginia.

Plain-English summary

Virginia received IRS information indicating that an individual may have owed 2008 Virginia income tax. After he did not answer an information request, the Department issued an assessment from the information available.

The individual said he moved to another state for work and sold a Virginia residence, but he supplied no objective documents showing that he abandoned Virginia and acquired a new permanent or indefinite domicile.

Virginia DMV records also showed that his Virginia driver's license, surrendered in 2007, was reissued in April 2008 and later renewed. Virginia treats obtaining or renewing that license as strong evidence of an intent to retain Virginia domicile, though not conclusive by itself.

Because the assessment was presumed correct and the taxpayer had not met his burden, Virginia left it in place. He received 30 days to submit adequate domicile evidence or file a 2008 Virginia resident return so the estimated liability could be adjusted.

Citations and references

• Va. Code §§ 58.1-302, 46.2-323.1, 46.2-348, 58.1-205, and 58.1-111.
• P.D. 00-151 and P.D. 02-149.
• Robert H. Talley v. Commonwealth, 127 Va. 516, 103 S.E. 612 (1920); State-Planters Bank v. Commonwealth, 174 Va. 289, 6 S.E.2d 629 (1940); Barbara B. Woods v. Commonwealth, Law No. 97-422 (Wise County/City of Norton Cir. Ct. Mar. 20, 2002).

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 16-45

Original ruling text

April 7, 2016

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will reply to your letter in which you request correction of the individual income tax assessment issued to * (the "Taxpayer") for the taxable year ended December 31, 2008.

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 2008 taxable year. A review of the Department's records showed that the Taxpayer had not filed a return. The Department requested additional information from the Taxpayer in order to determine if his income was taxable in Virginia. When a response was not received, the Department issued an assessment. The Taxpayer appeals the assessment, contending that he was a domiciliary resident of * (State A) during the taxable year at issue.

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. For a person to change domiciliary residency to another state, 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.

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 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 or domicile.

The Taxpayer indicates he was unemployed for most of 2007. He asserts he did not gain employment until he moved into State A in 2008. Although he states he sold a Virginia residence and worked only in State A in 2008, the Taxpayer has provided no objective documentation to support changing domicile to State A.

The Taxpayer did, however, maintain a number of connections with Virginia. Virginia Department of Motor Vehicles (DMV) records show the Taxpayer surrendered his Virginia driver's license in 2007, but it was reissued in April 2008. The Taxpayer then renewed his Virginia driver's license in December 2011. The Taxpayer admits he moved back to Virginia in 2010.

Virginia Code § 46.2-323.1 states, "No driver's license ... shall be issued to any person who is not a Virginia resident." In fact, this section states that every person applying for a driver's license must execute and furnish to the Commissioner of the Department of Motor Vehicles (DMV) a statement that certifies that the applicant is a Virginia resident. Further, any applicant who knowingly makes a false statement to DMV is subject to penalties under Va. Code § 46.2-348. The Department has found that an individual may successfully establish a domicile outside Virginia even if he retains a Virginia driver's license. See Public Document (P.D.) 00-151 (8/18/2000). However, obtaining or renewing a Virginia driver's license is considered to be a strong indicator of intent to retain domiciliary residency in Virginia. See P.D. 02-149 (12/9/2002).

According to numerous Virginia court cases, changing domicile is a two-step process. First, an individual must intend to permanently move away from one domicile. Second, the individual must acquire a new domicile where he intends to remain permanently or indefinitely. See Robert H. Talley v. Commonwealth of Virginia , 127 Va. 516, 103 S.E. 612 (1920), State-Planters Bank, v. Commonwealth of Virginia , 174 Va. 289, 6 S.E.2d 629 (1940), and Barbara B. Woods v. Commonwealth of Virginia , Circuit Court of Wise County and the City of Norton, Law No. 97-422 (3/20/2002).

By letter dated September 17, 2015, the Department requested the Taxpayer provide evidence that he abandoned his Virginia domicile and acquired domicile in State A. The Taxpayer's response failed to provide sufficient documentation of such.

Pursuant to Va. Code § 58.1-205, any "assessment of a tax by the Department shall be deemed prima facie correct." As such, the burden of proof is on the Taxpayer to show he was not subject to income tax in Virginia.

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 his domiciliary status in State A or file a 2008 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, and public documents 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 Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns
Tax Commissioner

AR/1-6121367937.D