Can I get a Virginia Tax Commissioner determination reconsidered just because I think the conclusion was wrong, or because a similar-sounding prior ruling came out differently?

Plain-English summary

A taxpayer had already lost her domicile appeal in a prior determination, P.D. 22-53, which found she remained a Virginia domiciliary resident for 2017. She asked the Department to RECONSIDER that determination, arguing her facts closely resembled P.D. 00-151, an earlier ruling where a different taxpayer was found to have successfully abandoned Virginia domicile.

The Department explained that reconsideration isn't a second bite at re-arguing the same case -- it's only available under four specific, narrow grounds set out in regulation: (a) the original determination misstated or got the facts wrong; (b) the governing law changed since the original determination; (c) the Department misapplied the correct legal policy; or (d) the taxpayer has genuinely NEW evidence that wasn't available when the original appeal was filed. A request must also be received within 45 days of the original determination letter. Here, the taxpayer was simply relying on the SAME facts already considered in P.D. 22-53 and arguing the conclusion was wrong -- which the Department explicitly held doesn't satisfy any of the four criteria; mere disagreement with the outcome isn't a basis for reconsideration. The Department also went further and explained why the comparison to P.D. 00-151 didn't even hold up on the facts: in that earlier case, the taxpayer got his new state's driver's license immediately upon moving there, and the country he'd left didn't require new residents to get its own license at all. By contrast, this taxpayer had kept her Virginia license after moving to California and then actually RENEWED it after claiming she'd already abandoned Virginia domicile -- even though California itself requires new residents to get a California license within 10 days of becoming a resident. That contrast (renewing a Virginia license post-move, in a state that legally required its own license quickly) undercut the comparison to P.D. 00-151 on the merits, separate from the reconsideration-standard failure. While the domicile determination stood, the Department did find one loose end: because the taxpayer was also an actual resident of California that year, she was entitled to a credit against her Virginia tax for the California tax she paid, and the audit staff had adjusted her account for that credit but never sent her the required explanation of the adjustment (as P.D. 22-53 had directed). A revised bill with that explanation would be issued, with fresh appeal rights specifically as to that adjustment.

What this means for you

Anyone considering asking for reconsideration of a Virginia tax determination

Simply disagreeing with the outcome, or believing your facts resemble a different favorable prior ruling, isn't enough. You must show one of four specific things: a factual misstatement in the original determination, an intervening change in law, a misapplication of the correct policy, or genuinely new evidence that wasn't available when you filed your original appeal. And you must ask within 45 days of the original determination letter.

Anyone who kept (or later renewed) a Virginia driver's license after claiming to have moved away

Renewing a Virginia license AFTER claiming your Virginia domicile was already abandoned is a meaningfully different -- and weaker -- fact pattern than simply retaining an old license you never touched again. If your new state also legally requires you to get its own license within a set window, failing to do so (or renewing Virginia's instead) can undercut your domicile-change case.

Accountants and tax professionals

Before filing a reconsideration request, map your client's facts against all four grounds specifically -- don't file based on a general belief the original ruling was "wrong" or that a different taxpayer's favorable ruling looks similar at a glance. Also watch for procedural entitlements the Department owes the client (like an explanation of an out-of-state credit adjustment) even when the main determination itself is being upheld.

Common questions

Q: What are the grounds for requesting reconsideration of a Virginia tax determination?
A: Four specific grounds under 23 VAC 10-20-165 F: misstated/inaccurate facts in the original determination, a change in the governing law, misapplication of the correct policy, or newly discovered evidence unavailable at the time of the original appeal.

Q: Is simply disagreeing with the Department's conclusion enough to get reconsideration?
A: No -- mere disagreement about the conclusion does not satisfy any of the four reconsideration criteria.

Q: How long do I have to request reconsideration?
A: The request must be received no later than 45 days after the date of the original determination letter.

Q: If I don't get relief through reconsideration, do I have other options?
A: Yes -- the Department's response constitutes its final determination, and a taxpayer may pursue a judicial remedy in Virginia's court system, subject to the statute of limitations under Va. Code § 58.1-1825.

Citations and references

• 23 VAC 10-20-165 F (four grounds for reconsideration; 45-day deadline)
• Va. Code § 58.1-332 (out-of-state tax credit)
• Va. Code § 58.1-1825 (judicial appeal statute of limitations)
• P.D. 00-151 (8/18/2000) (distinguished domicile-change precedent)
• P.D. 20-188 (11/10/2020) (mere disagreement does not satisfy reconsideration criteria)
• P.D. 22-53 (4/5/2022) (the original determination sought to be reconsidered)

Subject

Administration: Appeal - Reconsideration Requirements Not Met

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 23-28

Original ruling text

March 15, 2023

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will reply to your letter in which you seek reconsideration of the Department’s determination letter, issued as Public Document (P.D.) 22-53 (4/5/2022).

FACTS

In P.D. 22-53, the Department found that the Taxpayer remained taxable as a domiciliary resident of Virginia for the 2017 taxable year. The Taxpayer contends that her facts are very similar to those in P.D. 00-151 (8/18/2000), in which a taxpayer was determined to have abandoned his Virginia domicile.

DETERMINATION

Title 23 of the Virginia Administrative Code 10-20-165 F provides that a taxpayer who disagrees with the Department’s final determination issued pursuant to Virginia Code § 58.1-1822 may request a reconsideration of the determination. In order to grant a request for reconsideration, the request must be received by the Department no later than 45 days after the date of the determination letter, and a taxpayer must meet one of four specific requirements set forth in that section.

a. The facts upon which the original determination is based are misstated by the Tax Commissioner or are inaccurate, and the determination would have a different result based on a correction of the Tax Commissioner’s misstatement of the facts presented or a clarification of the original facts presented in the taxpayer’s administrative appeal;

b. The law upon which the original determination is based has been changed by legislation, court decision or other authority effective for the tax period(s) at issue;

c. The policy upon which the original determination is based is misapplied, and the determination would have a different result based on the application of the proper policy; or

d. The taxpayer has discovered additional evidence or documentation that was not available to the taxpayer at the time the original administrative appeal was filed with the department, and the additional evidence or documentation could produce a result different from the original determination.

The reconsideration request does not meet any of the above criteria. The Taxpayer references the same facts that the Department analyzed in P.D. 22-53 but believes the conclusion was erroneous. The applicable law has not been changed, the Department applied the law of domicile, which was the correct policy at issue, and no additional evidence has been uncovered that was not available to the taxpayer at the time of the first determination. Mere disagreements about the conclusion do not satisfy any of the reconsideration criteria. See P.D. 20-188 (11/10/2020).

Regardless, there are several notable differences between the facts of this case and P.D. 00-151. In P.D. 00-151, as soon as the taxpayer moved from the foreign country to a state other than Virginia, he obtained that state’s driver’s license. In addition, the foreign country did not require that new residents obtain a driver’s license from that country. In this case, the Taxpayer maintained her Virginia license when she moved to California and renewed her Virginia driver’s license after claiming she abandoned her Virginia domicile. Further, unlike the foreign country in P.D. 00-151, California requires individuals who become California residents to obtain a California driver’s license within a certain period of time, currently within 10 days of becoming a resident.

While I recognize the Taxpayer’s ongoing disagreement with the determination made in P.D. 22-53, I find no basis for reversing it at this time. Because the Taxpayer was an actual resident of California as well as a domiciliary resident of Virginia for the 2017 taxable year, she would be allowed a credit against her Virginia income tax liability for income tax paid to California to the extent permitted by Virginia Code § 58.1-332. A review of the Taxpayer’s account indicates that it was adjusted to include the credit for the income tax paid to California. It does not appear, however, that the audit staff provided the Taxpayer with an explanation of the adjustment to the out-of-state credit as directed in P.D. 22-53.

A revised bill for the 2017 taxable year will be issued to the Taxpayer. An explanation of the adjustment to the out-of-state credit must accompany the revised bill. If the Taxpayer disagrees with that adjustment, she retains the right to appeal within 90 days of being notified of the change. Otherwise, she should remit payment for the outstanding balance on the revised bill within 30 days from the date of the bill to avoid the accrual of additional interest and possible collections actions.

This response constitutes the Department’s final determination in this matter. If the Taxpayer wishes to appeal this matter further, she may pursue a judicial remedy in Virginia’s court system. The Taxpayer should be aware that any court application must be filed within the statute of limitations. See Virginia Code § 58.1-1825.

The Code of Virginia sections, regulation 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/4191.B

Related Documents

00-151

16-170

20-188

22-53