I live and work overseas but my family stays in our Virginia home and I kept a Virginia license and voter registration. Am I still a Virginia resident for income tax?

Plain-English summary

The Department received IRS data suggesting this taxpayer owed a 2019 Virginia return, gathered information, and concluded he was a domiciliary resident of Virginia — so it assessed him. He appealed, saying he was a resident of another country ("Country A") in 2019. The Tax Commissioner abated the assessment: he had established his domicile in Country A back in 2008 and never reestablished a Virginia domicile.

Domicile needs presence and intent. Virginia taxes domiciliary residents (Virginia is your permanent home) and actual residents (in Virginia more than 183 days) (§ 58.1-302). To acquire a domicile you need both physical presence in the place and an intent to remain there permanently or indefinitely — the Virginia Supreme Court held that neither presence alone nor intent alone is enough (Cooper's Adm'r v. Commonwealth). The person claiming a particular domicile carries the burden of proof (23 VAC 10-110-30 B 3), and no single factor controls.

Why his Virginia connections didn't make him a resident. The taxpayer had genuine Virginia ties: he and his spouse bought a Virginia home in 2016, his spouse and children moved in during 2018 and the kids attended Virginia schools, he held a Virginia driver's license (obtained 2010, renewed 2018), a Virginia-registered vehicle, and a Virginia voter registration. Those connections show intent, and a Virginia license especially is a strong indicator of intent (§ 46.2-323.1). But intent is only half the test. He lived and worked in Country A from 2008 to 2023, leased a home there, and held a Country A residence card, license, and vehicle registration. In 2019 he was physically in Virginia only for short visits totaling about 32 days. Because temporary visits are not the physical presence needed to establish a domicile, he never became (or re-became) a Virginia domiciliary — no matter how many Virginia connections he kept for his family's benefit.

The overseas-voting rule — a key point for Americans abroad. The Department did not hold his Virginia voter registration against him. Federal law lets U.S. citizens living abroad vote in federal elections using a voter registration from the state of their last domicile (52 U.S.C. § 20310), and it expressly says that exercising that federal voting right does not affect the citizen's domicile or residence for any federal, state, or local tax (52 U.S.C. § 20309). So voting absentee in Virginia federal elections from overseas was irrelevant to whether he was a Virginia resident.

Result. He established Country A domicile in 2008 and did not reestablish Virginia physical presence with intent to remain before or during 2019. The 2019 assessment was abated.

What this means for you

Americans living and working abroad

Keeping a U.S. "home base" — a house, a state driver's license, a car registration, a voter registration — does not automatically make you a resident of that state for income tax if you actually live abroad. Virginia (like most states) requires physical presence plus intent to remain to be a domiciliary. If you genuinely relocated overseas and only visit, short visits will not reestablish Virginia domicile. Keep records of where you actually lived and worked, your foreign residence documents, and the dates and length of any U.S. visits.

If your family stays in a home state while you're overseas

A home where your spouse and children live, and where the kids go to school, is a real Virginia connection and will draw the Department's attention. It is not automatically fatal — here the taxpayer prevailed because those ties reflected his family's use of the property, while he was physically abroad and only visited about 32 days in the year. Be ready to document your own physical absence, not just the family's arrangements.

On voter registration and overseas voting

Do not let anyone tell you that voting absentee in your old state's federal elections re-made you a resident there. Federal law (52 U.S.C. § 20309, § 20310) specifically protects overseas citizens: you can use your last-domicile state's registration to vote federally, and doing so cannot be used to establish domicile or residence for tax. Virginia applied exactly that rule here.

Common questions

Q: I moved abroad but kept my Virginia house, license, and voter registration. Am I still a Virginia resident?
A: Not necessarily. Those are indicators of intent, but Virginia domicile also requires physical presence with intent to remain. If you actually live abroad and only visit Virginia briefly, you generally have not established (or reestablished) Virginia domicile — this taxpayer's roughly 32 days of 2019 visits were not enough.

Q: My spouse and kids live in our Virginia home. Does that make me a Virginia resident?
A: It is a connection the Department will weigh, but it did not control here. The taxpayer was found to be domiciled abroad because he lacked the required physical presence in Virginia, even though his family lived in the Virginia house.

Q: I voted in Virginia elections from overseas. Did that make me a Virginia resident for tax?
A: No. Federal law lets citizens abroad vote in federal elections using their last-domicile state's registration and provides that doing so does not affect domicile or residence for any tax (52 U.S.C. § 20309, § 20310). The Department treated the taxpayer's overseas voting as irrelevant.

Q: How do I actually change my domicile away from Virginia?
A: You must (1) abandon your Virginia domicile with no intent to return and (2) establish a new domicile elsewhere through physical presence and intent to remain permanently or indefinitely. Doing that abroad — living and working there, with foreign residence documents — can end your Virginia domicile even if you keep some Virginia ties.

Citations and references

Statutes and regulations:

• Va. Code § 58.1-302 — domiciliary vs. actual (183-day) residency
• Va. Code § 46.2-323.1 — Virginia driver's licenses issued only to certified residents
• 23 VAC 10-110-30 B 3 — burden on the individual to prove domicile
• 52 U.S.C. § 20310 — overseas citizens may vote federally using their last-domicile state's registration
• 52 U.S.C. § 20309 — exercising overseas federal voting rights does not affect domicile or residence for any tax

Authorities the Commissioner relied on (described here, not linked): Cooper's Adm'r v. Commonwealth, 121 Va. 338 (1917) (domicile requires both presence and intent); and prior Department public documents on the driver's-license factor, the presence-plus-intent requirement, and the overseas-voting rule (P.D. 00-151, 02-149, 10-203, 13-97, 15-4, and 23-110).

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 25-115

Original ruling text

November 7, 2025

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will respond to your letter in which you seek correction of the individual income tax assessment issued to you (the “Taxpayer”) for the taxable year ended December 31, 2019.

FACTS

The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may have been required to file a Virginia income tax return for the 2019 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. Based on the information provided, the Department determined that he was subject to Virginia income tax as a domiciliary resident of Virginia and issued an assessment. The Taxpayer submitted an application for correction, contending he was a resident of * (Country A) during 2019.

DETERMINATION

Two classes of residents, a domiciliary resident and an actual resident, are set forth in Virginia Code § 58.1-302. The domiciliary residence of a person means the permanent place of residence of that person and the place to which that person intends to return even though they may be residing elsewhere. An actual resident of Virginia means a person who, for an aggregate of more than 183 days of the taxable year, maintained their place of abode within Virginia. A Virginia domiciliary resident continues to be subject to Virginia taxation even if they work in another state or country. 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 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. See Cooper’s Adm’r v. Commonwealth , 121 Va. 338, 347 (1917). The burden of proof that an individual has abandoned or failed to establish domicile in Virginia rests with the individual. See Title 23 of the Virginia Administrative Code (VAC) 10-110-30 B 3.

The determination of whether a change of domicile has occurred is highly dependent on the facts and circumstances of the individual case, and no single factor is dispositive. Factors to be considered include, but are not limited to, the following:

sites of real and tangible property, location of savings and checking accounts, motor vehicle registration and licensing, motor vehicle operator’s license, voter registration, membership in clubs and civic groups, place of business, profession or employment, charitable contributions, location of schools attended by children, length of time of residence, place of birth and marriage, residence of family, reason for abandoning or acquiring domicile, and, in the case of a minor or married person, domicile of parents, husband, or wife and/or children. Id .

The Taxpayer was a domiciliary resident of * (State A) until late 2007 when he accepted employment in Country A. The Taxpayer engaged in actions consistent with establishing domicile in Country A. He leased a residence in Country A and remained employed there until 2023. In addition, he held a Country A residence card and driver’s license and registered a vehicle there.

The Taxpayer, however, held some connections with Virginia. He acquired a Virginia driver’s license in 2010, which he renewed in 2018. He also owned a vehicle that was registered in Virginia. He maintained a Virginia voter’s registration and had consistently voted by absentee ballot since 2012. In addition, the Taxpayer and his spouse purchased a residence in Virginia in 2016. The Taxpayer’s spouse and children moved into the Virginia residence during 2018, and their children began attending Virginia schools.

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. The Department has found that an individual may successfully establish a domicile outside Virginia even if they retain 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).

The Taxpayer explains that when his State A driver’s license expired in 2010, he obtained a Virginia driver’s license to use as a convenience during international travel. He also explains that the Virginia residence and registered vehicle were used by his spouse and children during 2019. He did not live in the Virginia residence during 2019 except for occasional visits totaling approximately 32 days.

With regard to the Taxpayer’s Virginia voting registration, the Department has observed that federal law generally allows United States citizens living abroad to vote in federal elections using a voter’s registration from the state of the individual’s last domicile. See 52 U.S.C. § 20310 (formerly 42 U.S.C. § 1973ff-6). See also P.D. 10-203 (9/1/2010). In addition, the exercise of such federal voting rights by an overseas citizen shall not affect the domicile or residence of such citizen for purposes of any federal, state, or local tax. See 52 U.S.C. § 20309. As such, even though the Taxpayer voted in federal elections using a Virginia voter’s registration while he resided in Country A, that fact would have no bearing on this determination.

Having connections, such as personal residences, driver’s licenses, motor vehicle registrations, and voter’s registrations, indicates that an individual had the intent to establish domicile in the state or country where such connections were established. Acquiring domicile in a new location, however, requires both intent and personal presence. See Cooper’s Adm’r , 121 Va. at 347, in which the Virginia Supreme Court observed that neither physical presence alone, nor expressed intention alone are sufficient to create a legal domicile for taxation purposes. The Department has determined that individuals cannot establish a domicile despite having some or all of the above connections if they have not yet resided in the jurisdiction with the intention to remain permanently or indefinitely. See P.D. 13-97 (6/11/2013), P.D. 15-4 (1/8/2015), and P.D. 23-110 (10/19/2023).

After carefully considering all of the evidence presented, the Department finds that the Taxpayer established domicile in Country A in 2008 and did not reestablish physical presence in Virginia with the concurrent intent to remain permanently or indefinitely prior to or during the 2019 taxable year. Although the Taxpayer was physically present in Virginia for short visitsmade occasional visits to Virginia totally approximately 32 days in 2019, temporary visits are not sufficient to establish the requisite intent to remain permanently or indefinitely despite the fact that the Taxpayer had established some connections to Virginia. See, e.g., P.D. 15-4. The assessment for the 2019 taxable year will, therefore, be abated.

The Code of Virginia sections and regulation cited are available online at law.lis.virginia.gov. The public documents cited are available at tax.virginia.gov in the Laws, Rules, & Decisions section of the Department’s website. If you have any questions regarding this determination, you may contact * in the Office of Tax Policy and Legal Affairs, Tax Adjudication and Resolution Division, at or **@tax.virginia.gov.

Sincerely,

James J. Alex
Tax Commissioner
Commonwealth of Virginia

AR/4923.Y

Related Documents

00-151

02-149

10-203

13-97

15-4

23-110