Did attending college, voting, paying in-state tuition, and interning in another state end a student's Virginia domicile?

Plain-English summary

Virginia upheld the 2007 resident assessment because the student did not clearly prove that he had abandoned Virginia domicile. He attended college, paid in-state tuition, voted, interned, and filed a part-year return in another state. Those facts supported his position, but were not decisive.

The Department generally viewed college housing and student employment as temporary. The taxpayer continued receiving mail in Virginia and retained a Virginia driver's license, which he had renewed in 2006 and again renewed in 2011. Virginia treated licensing as a strong sign of intent to retain domicile because state law required an applicant to certify Virginia residency.

Changing domicile required both abandoning Virginia with no intent to return and acquiring a new domicile through presence and intent to remain permanently or indefinitely. On the whole record, the taxpayer did not carry that burden.

The Department noted that he might qualify for a Virginia credit for income tax paid to the other state on his internship wages. He needed to file the 2007 Virginia return with the credit calculation, the other-state return, and the wage and withholding form.

What this means for you

• College attendance alone usually does not establish a new domicile.
• Voting and in-state tuition help, but Virginia weighs every connection and act.
• Keeping or renewing a Virginia driver's license is strong contrary evidence.
• A resident assessment may still allow a credit for qualifying income tax paid elsewhere.

Citations and references

• Va. Code §§ 46.2-323.1, 58.1-302, and 58.1-332(A).
• P.D. 00-151 (Aug. 18, 2000); P.D. 02-149 (Dec. 9, 2002).

Subject

Taxpayer did not demonstrate clear intent to abandon his Virginia domicile

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 11-101

Original ruling text

June 9, 2011

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, 2007.

FACTS

The Taxpayer was a student at a university in * (State A) during the 2007 taxable year. He resided in a fraternity house and paid State A tuition. The Taxpayer was registered to vote in State A. During the 2007 taxable year, the Taxpayer completed an internship in State A. The Taxpayer filed a State A part-year resident return for 2007, reporting the income he earned from his internship.

The Taxpayer acquired a Virginia driver's license in 2002, which he renewed in January 2006 and January 2011. In 2008, he accepted full-time employment in State A to commence after his graduation with the company for which he interned in 2007.

The Department received information from the Internal Revenue Service (IRS) that tax documents for the 2007 taxable year were sent to the Taxpayer at a Virginia address. The Taxpayer did not file a 2007 Virginia individual income tax return. The Department requested additional information from the Taxpayer in order to determine his residence for that taxable year. Based on the information provided by the Taxpayer, the Department determined he was a Virginia domiciliary resident during the 2007 taxable year and issued an assessment for individual income tax.

The Taxpayer appeals the assessment, contending he took sufficient steps to establish residency in State A and all the income earned in 2007 was earned in State A.

DETERMINATION

Residency

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 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, sites 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.

The Department determines a taxpayer's intent through the information provided. The 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.

In this case, the Taxpayer moved to State A in order to attend college. It has been the Department's experience that college students rarely establish domicile in the state where they attend college. Further, the Department does not generally consider college housing, whether it be in a dorm, apartment or fraternity/sorority house, to be a permanent place of abode. Likewise, employment engaged in by college students tends to be temporary in nature.

In 2007, the Taxpayer performed a number of actions consistent with changing his domicile to State A. He claimed to be a State A resident in order to receive in-state tuition at the State A institution and he voted in State A. The Taxpayer also filed a State A income tax return as a part-year resident reporting the income earned at his internship.

Evidence obtained by the Department clearly shows that the Taxpayer received mail in Virginia in 2007 and held a Virginia driver's license. 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 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 (12/09/2002). DMV records indicate that the Taxpayer renewed his Virginia driver's license in 2011.

After reviewing all the evidence in this case, it is my determination that the Taxpayer did not demonstrate clear intent to abandon his Virginia domicile during the 2007 taxable year. While the Taxpayer did take some steps consistent with establishing domicile in State A, he clearly retained his connections with Virginia and desired to retain the benefits of Virginia residency. Accordingly, the assessment for the 2007 taxable year is upheld.

Credit for Taxes Paid to Other States

Virginia Code § 58.1-332 A allows Virginia residents a credit on their Virginia income tax return for income taxes paid to another state provided the income is either earned or business income. Based on the information provided, the Taxpayer may be eligible for an out-of-state tax credit for the 2007 taxable year. In order to claim the credit, the Taxpayer should file a 2007 Virginia income tax return, including a computation of the credit and a copy of the 2007 State A return and the 2007 Form W-2 evidencing State A wages earned and income tax withheld.

Please send the requested return or payment of the assessment to: Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, P.O Box 27203, Richmond, Virginia 23261-7203, Attn: *, within 30 days from the date of this letter. If the requested information is not provided within the allotted time, the assessment will be deemed correct and collection action will resume.

The Code of Virginia section and public document cited are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's website. If you have any questions regarding this determination, you may contact * of the Appeals and Rulings section at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/1-4649651535.B