My spouse moved to another state for work and voted and got licensed there while I stayed in our Virginia home — are we both still Virginia residents?

Plain-English summary

A husband and wife were assessed 2020 Virginia income tax after IRS data showed they hadn't filed a Virginia return. They appealed under Va. Code § 58.1-1821, contending they were residents of State A. The result was a split: the husband won (he had changed his domicile), the wife lost (she never left).

The domicile test. Virginia taxes two classes of residents (Va. Code § 58.1-302): domiciliary residents (Virginia is the permanent home they intend to return to, taxable even while living or working elsewhere) and actual residents (more than 183 days of the year in Virginia). Changing domicile requires both (1) actually abandoning the old domicile with no intent to return and (2) acquiring a new one by personal presence plus intent to remain permanently or indefinitely (Cooper's Adm'r v. Commonwealth, 121 Va. 338 (1917)). The burden is on the individual (23 VAC 10-110-30 B 3), and the Department weighs many factors — property, bank accounts, vehicle registration, driver's license, voter registration, employment, family — with no single factor dispositive.

The husband's move stuck. He accepted a job in State A and began living and working there in December 2019, intending a permanent move. During 2020 he registered a vehicle in State A, registered to vote and voted in State A, and in January 2021 surrendered his Virginia driver's license for a State A license; apart from brief family visits he stayed in State A until his position was terminated in June 2021. Two policies did the heavy lifting:

• Voting elsewhere is very strong evidence. Just as registering and voting in Virginia is strong evidence of Virginia domicile (P.D. 17-97, 18-84), obtaining a voter registration and voting in another state is very strong evidence the taxpayer considered that state home.
• A change of domicile is a process, dated from its beginning. Even though the official connections (license, registrations) came later, the change is generally considered to have occurred at the start of the process (P.D. 16-138, 19-19) — so the December 2019 move controlled, and the husband was not a Virginia resident for 2020.

But he still had to file. The couple received rental income from leasing space in their Virginia residence. Income attributable to ownership of real property in Virginia is Virginia-source income (§ 58.1-302), a nonresident with Virginia-source income above the § 58.1-321 threshold must file a nonresident return (§ 58.1-325, § 58.1-341 A 2), and the husband's Virginia income cleared it. He was given 60 days to submit an amended separate 2020 nonresident return, after which the assessment would be adjusted.

The wife stayed a Virginia resident. She continued to live in the couple's Virginia home, kept a Virginia-registered vehicle and Virginia driver's license, and never established physical presence in State A — so she remained a Virginia domiciliary resident. When one spouse is a resident and the other isn't, § 58.1-326 lets the couple elect to compute joint Virginia taxable income as if both were residents — unlikely to help here — and otherwise each spouse's separate tax is computed on separate income. On the available information the wife's separate income was below the § 58.1-321 filing threshold, so she wasn't required to file at all.

What this means for you

Spouses who split states

Domicile is determined person by person — one spouse can change domicile while the other keeps Virginia residency by staying put. When that happens, Virginia computes each spouse's separate tax on separate income (unless you elect joint resident treatment under § 58.1-326), which can leave a stay-behind spouse below the filing threshold entirely. Run the numbers both ways before electing.

Anyone moving out of Virginia

This ruling shows what a successful domicile change looks like — and it's the mirror image of the cases taxpayers lose. Move your official life with you: license (surrender the Virginia one), vehicle registration, and above all voter registration — the Department treats where you register and vote as among the strongest evidence of where home is. Keeping a Virginia house or even Virginia rental income doesn't defeat the change by itself, and paperwork that lags the move won't sink you: the change dates from the beginning of the process when presence and intent are real.

Nonresidents with Virginia rental property

Changing domicile doesn't end your Virginia filing obligations if Virginia-source income continues. Rent from Virginia real estate is Virginia-source income, and above the filing threshold it requires a nonresident return computed on the Virginia-source ratio.

Common questions

Q: What did the husband do right that domicile losers get wrong?
A: He aligned his acts with his claimed intent: he lived and worked in State A, registered a vehicle there, registered to vote and voted there, and surrendered his Virginia driver's license. Voting in the new state is very strong evidence of domicile there — just as continuing to vote in Virginia is strong evidence of staying a Virginia domiciliary.

Q: His license and registrations came after the move — did that delay the change?
A: No. A change of domicile is evidenced by a process, and the Department generally treats it as occurring at the beginning of that process even when the official connections were obtained later. The husband's change dated from his December 2019 move.

Q: Why did he still owe a Virginia return as a nonresident?
A: The couple leased space in their Virginia residence, and income from ownership of Virginia real property is Virginia-source income. A nonresident whose Virginia income exceeds the filing threshold must file a nonresident return reporting the Virginia-source share.

Q: What happens when one spouse is a resident and the other isn't?
A: Va. Code § 58.1-326 gives a choice: elect to determine joint Virginia taxable income as if both spouses were residents, or (by default) compute each spouse's separate tax on their separate Virginia taxable income. Here the separate computation left the wife below the filing threshold, so she didn't have to file.

Citations and references

Statutes and regulations:

• Va. Code § 58.1-1821 — administrative appeal (application for correction) to the Tax Commissioner
• Va. Code § 58.1-302 — domiciliary and actual residents; income from Virginia sources defined
• Va. Code § 46.2-323.1 — Virginia driver's licenses are limited to Virginia residents
• Va. Code § 58.1-325 — nonresident tax computed on the Virginia-source ratio
• Va. Code § 58.1-341 A 2 — nonresident filing requirement
• Va. Code § 58.1-321 — filing thresholds
• Va. Code § 58.1-326 — mixed resident/nonresident spouses
• 23 VAC 10-110-30 B 3 — burden of proof and the multi-factor domicile analysis

Authorities the Department relied on (described here, not linked): Cooper's Adm'r v. Commonwealth, 121 Va. 338 (1917) (the two-part change-of-domicile test; voting as evidence of domicile); P.D. 00-151 (8/18/2000) (a retained Virginia license doesn't always defeat a domicile change); P.D. 02-149 (12/9/2002) (obtaining or renewing a Virginia license is a strong indicator of Virginia domicile); P.D. 17-97 (6/12/2017) and P.D. 18-84 (5/9/2018) (voting in Virginia requires Virginia domicile); P.D. 16-138 (6/24/2016) and P.D. 19-19 (3/26/2019) (the change dates from the beginning of the process). For contrast, in two failure-to-abandon appeals the Department decided weeks later — P.D. 25-67 and 25-68 — taxpayers who kept voting as Virginia registrants lost, making this ruling the taxpayer-favorable counterpart on the same voting-evidence policy.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 25-56

Original ruling text

April 25, 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 * and *** (the “Taxpayers”) for the taxable year ended December 31, 2020.

FACTS

The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayers, a husband and wife, may have been required to file a Virginia income tax return for the 2020 taxable year. A review of the Department’s records showed that the Taxpayers had not filed a return. The Department requested additional information from the husband to determine if his income was taxable in Virginia. In response, the Taxpayers submitted a joint Virginia nonresident income tax return along with other information. After reviewing the information provided, the Department determined they were domiciliary residents of Virginia and issued an assessment accordingly. The Taxpayers submitted an application for correction, contending they were residents of * (State A).

DETERMINATION

Residency

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 husband accepted employment in State A and began living and working there in December 2019. The Taxpayers explained that they intended to move to State A permanently. During the tax year at issue, the husband registered a vehicle in State A, registered to vote, and voted in State A. In addition, the husband surrendered his Virginia driver’s license and obtained a State A driver’s license in January 2021. Except for brief periods when he visited family in Virginia, he remained in State A until his position there was terminated in June 2021.

The Taxpayers also retained some connections to Virginia. They owned a residence in Virginia where the wife continued to reside during the period the husband was in State A. The wife owned a vehicle registered in Virginia and maintained a Virgina driver’s license. In addition, the Taxpayers received rental income attributable to leasing space in their Virginia residence.

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). Similarly, obtaining a driver’s license in another state is a strong indicator of intent to establish domiciliary residency in such state.

In addition, the Department considers registering to vote in Virginia and voting in Virginia elections to be strong evidence of an intent to remain domiciled in Virginia. See Cooper’s Adm’r , 121 Va. at 349. The Department has consistently found that individuals must be domiciliary residents of Virginia in order to be eligible to vote under the Constitution of Virginia. See P.D. 17-97 (6/12/2017) and P.D. 18-84 (5/9/2018). Consistent with the Department’s policy with respect to the registering to vote and voting in Virginia, the Department considers the fact that a taxpayer obtained a voter registration and voted in elections in another state to be very strong evidence that such individual considered the other state to be their domicile during the time they held and used such registration.

The Department acknowledges that a change of domicile is evidenced by a process in which no single factor is dispositive. The change is generally considered to have occurred at the beginning of that process even when official connections such as driver’s licenses, vehicle registrations, and voter’s registrations were not obtained until later. See P.D. 16-138 (6/24/2016) and P.D. 19-19 (3/26/2019). After carefully considering all of the information presented, the Department finds that the husband established domicile in State A and was not taxable as a Virginia resident for the 2020 taxable year. The wife, however, never established physical presence in State A and, thus, remained a Virginia domiciliary resident for the 2020 taxable year.

Nonresidents

Individuals who are neither domiciliary nor actual residents of Virginia and have income from Virginia sources are taxed as nonresidents, unless the individual meets the filing exception described in Virginia Code § 58.1-321. See Virginia Code § 58.1-325. The Virginia taxable income of a nonresident is computed by multiplying their Virginia taxable income (computed as if they were a resident) by the ratio of their net income, gain, loss, and deductions from Virginia sources to his net income, gain, loss, and deductions from all sources. Virginia Code § 58.1-302 limits the term income and deductions from Virginia sources to the items of income, gain, loss, and deductions attributable to (1) the ownership of any interest in real or tangible personal property in Virginia, (2) a business, trade, profession, or occupation carried on in Virginia, or (3) prizes paid by the Virginia Lottery Department, and gambling winnings from wagers placed or paid at a location in Virginia. Thus, a nonresident with Virginia source income is required to file a nonresident Virginia income tax return unless the filing exemption applies. See Virginia Code § 58.1-341 A 2.

In this case, the husband, who was a nonresident for the taxable year at issue, was leasing property in Virginia and thus had income attributable to the ownership of real property in Virginia. In addition, he had sufficient Virginia adjusted gross income to exceed the filing threshold described under Virginia Code § 58.1-321. As such, he was required to file a nonresident Virginia income tax return to report his Virginia source income.

CONCLUSION

For the reasons discussed above, the husband was a nonresident of Virginia, and the wife was a domiciliary resident of Virginia for the taxable year at issue. In cases in which one spouse is a nonresident and the other is a resident, Virginia Code § 58.1-326 permits married individuals to elect to determine their joint Virginia taxable income as if they were both residents. Considering the tax consequences in this case, it is unlikely that the Taxpayers would wish to make this election for the 2020 taxable year. When such an election is not made, Virginia Code § 58.1-326 provides that the spouse’s separate taxes shall be determined on their separate Virginia taxable incomes. The husband will be permitted to make an amended separate filing for the 2020 taxable year as a nonresident. Based on the available information, the wife’s separate income is below the filing threshold described in Virginia Code § 58.1-321, and she is not required to file a separate Virginia return.

The return should be submitted within 60 days from the date of this letter to: Virginia Department of Taxation, Attn: *, Tax Adjudication and Resolution Division, P.O. Box 27203, Richmond, Virginia, 23261-7203. Upon receipt, the return will be reviewed, and the assessment will be adjusted, as appropriate. If the return is not received within the allotted time, the assessment will be considered correct, and collections actions may result.

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 5014.Q

Related Documents

00-151

02-149

16-138

17-97

18-84

19-19