If I can't pinpoint the exact dates I got a new state's driver's license, vehicle registration, and voter registration, can I still prove I successfully changed my domicile away from Virginia?

Plain-English summary

The IRS tipped Virginia off that a taxpayer might owe a 2018 return; when the Department reviewed the information he provided, it concluded he was still a Virginia domiciliary resident and issued an assessment. He appealed, arguing he'd actually become a resident of another state.

The evidence favoring the taxpayer was substantial: he'd accepted full-time employment in the new state back in April 2017 and moved there, filed a 2017 Virginia PART-YEAR resident return marking his Virginia residency as ending that same month, had the new state withhold its own income tax from his wages, filed that state's resident returns for 2018-2020, lived with relatives before leasing his own place there in June 2018, and registered to vote there in October 2018 (treated as very strong evidence of domiciliary intent under Virginia case law). He also said he got a new driver's license and vehicle registration in the new state in 2018, though the exact dates weren't entirely clear from his documentation. Working against him: he kept his Virginia driver's license until surrendering it in January 2019, his parents still lived in Virginia (where he stayed when he later moved back in 2021), and some 2018 tax documents were mailed to his parents' Virginia address.

The Department found the totality of the evidence favored the taxpayer, even with the imprecise license/registration dates. It reiterated that domicile change is a PROCESS in which no single factor controls, and that the change is generally treated as complete at the beginning of that process. Because the taxpayer had already moved for full-time work, filed a part-year Virginia return marking his departure, had out-of-state withholding and returns, and (even if the precise date is unclear) obtained the new state's license, registration, and voter registration, the preponderance of evidence showed he intended to make the new state his domicile -- so the 2018 assessment was abated.

What this means for you

Anyone who can't document the EXACT date they got a new state's license, registration, or voter card

Don't assume an ambiguous paper trail dooms your domicile-change case. This ruling confirms the Department looks at the totality of the evidence and the overall timeline (job move, part-year return marking the departure, out-of-state withholding/filings), not a strict checklist of exact administrative dates.

Anyone filing a part-year resident return for the year of a move

Filing a part-year return that marks your Virginia residency-ending date consistent with your actual move (as this taxpayer did for 2017) creates useful contemporaneous evidence supporting a later domicile dispute for a subsequent year.

Accountants and tax professionals

When a client's domicile-change evidence includes some imprecisely dated items (license, registration), don't treat that as fatal -- pair it with clearer, better-documented facts (employment start date, lease date, voter registration date, out-of-state tax filings) to build the overall preponderance-of-evidence case the Department applies.

Common questions

Q: Do I need to prove the exact date I got a new state's driver's license to establish a domicile change?
A: Not necessarily -- the Department weighs the totality of the evidence and overall timeline, and imprecise dates on some factors don't automatically defeat a domicile change if other evidence (employment, leases, voter registration, out-of-state tax filings) is clear.

Q: Does keeping a Virginia driver's license until later in the process hurt my domicile-change claim?
A: It's a factor that can weigh against you, but it isn't automatically disqualifying if the overall evidence supports the change -- here, the taxpayer kept his Virginia license for over a year after the move but still succeeded.

Q: What's the strongest evidence for establishing when a domicile change happened?
A: Voter registration is treated as very strong evidence; a part-year resident return marking the departure date, an out-of-state job start date, and out-of-state tax filings/withholding are also significant.

Q: How does the Department treat a domicile change that unfolds gradually over time?
A: As a single process where no one factor is dispositive, generally considered complete at the beginning of the process rather than when every administrative detail is finalized.

Citations and references

• Va. Code § 58.1-302 (domiciliary resident and actual resident defined)
• Va. Code § 46.2-323.1 (Virginia driver's license applicant must certify Virginia residency)
• Article II, Section 1 of the Constitution of Virginia; Va. Code § 24.2-101 (voter registration requirements)
• Cooper's Adm'r v. Commonwealth, 121 Va. 338, 93 S.E. 680 (1917) (voter registration as strong evidence of domiciliary intent)
• P.D. 00-151 (8/18/2000) (domicile can change even with a retained Virginia driver's license)
• P.D. 02-149 (12/9/2002) (renewing a Virginia license is a strong indicator of Virginia domiciliary intent)
• P.D. 16-138 (6/24/2013) (domicile change is a process; no single factor is dispositive)

Subject

Residency: Domicile - Taxpayer Successfully Established Intent to Change Domicile

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 23-32

Original ruling text

March 29, 2023

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 * (the “Taxpayer”) for the taxable year ended December 31, 2018.

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 2018 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. After reviewing the information provided, the Department determined that the Taxpayer was a domiciliary resident of Virginia for the 2018 taxable year and issued an assessment. The Taxpayer appeals, contending he was a resident of * (State A).

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. For a person to change domiciliary residency to another state or country, that person must intend to abandon their 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 their 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 their 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 person’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 or 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 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 their Virginia domicile has been abandoned. If the information is inadequate to meet this burden, the Department must conclude that the taxpayer intended to remain indefinitely in Virginia.

The Taxpayer took several steps indicating his intent to establish domicile in State A. He accepted full-time employment in State A in April 2017 and moved there to begin working. Consistent with the move, he filed a 2017 Virginia part-year resident return indicating a Virginia residence ending date in April 2017. He had State A taxes withheld from his wages and filed State A resident income tax returns for the 2018 through 2020 taxable years. The Taxpayer had family in State A and resided with a relative before leasing a personal residence in State A in June 2018. He also registered to vote in State A in October 2018. In addition, the Taxpayer states that he obtained a State A driver’s license and registered his vehicle in State A in 2018. The Taxpayer submitted evidence that he obtained the license and vehicle registration, although the precise dates he first obtained these are unclear from the documentation provided.

The Taxpayer also maintained some connections with Virginia. He retained his Virginia driver’s license until it was surrendered to State A in January 2019. His parents also continued to live in Virginia, and he lived at their residence when he returned to Virginia in 2021. In addition, the Taxpayer received certain 2018 informational returns at his parents’ Virginia address.

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 that individual 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).

With regard to eligibility to vote, the Department considers the fact that a taxpayer obtained a Virginia voter’s registration and voted in Virginia elections to be very strong evidence that that individual considered Virginia to be their domicile during the time they held and used such registrations. Similarly, registering to vote in State A provides strong evidence that the Taxpayer considered State A to be his domicile. See Article II, Section 1 of the Constitution of Virginia, Virginia Code § 24.2-101, and Coopers Adm’r v. Commonwealth , 121 Va. 338, 93 S.E. 680 (1917).

The Department acknowledges that a change of domicile occurs as part of a process in which no single factor is dispositive. Further, the change is generally considered to have occurred at the beginning of the process. See P.D. 16-138 (6/24/2013). In this case, the Taxpayer moved to State A for full-time work, and obtained a State A driver’s license, vehicle registration, and voter registration. While these may not have been obtained immediately after the Taxpayer left Virginia to work in State A, the preponderance of the evidence suggests he intended to make State A his domicile. After carefully considering all of the evidence presented, I find that the Taxpayer successfully changed his domicile to State A for the 2018 taxable year. Accordingly, the assessment will be abated.

The Code of Virginia sections and public documents cited are available online at www.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, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/4280.X

Related Documents

00-151

02-149

16-138