I already live in another state but got a Virginia driver's license and registered a car here. Does that make me a Virginia resident for income tax?

Plain-English summary

The Department got IRS data suggesting this taxpayer should have filed a 2019 Virginia return, and after reviewing his information it assessed him as a Virginia domiciliary resident. He appealed, saying he lived in another state ("State A"). The Tax Commissioner agreed and abated the assessment.

The unusual angle here. Most of Virginia's domicile cases ask whether someone left Virginia. This one is the mirror image: the taxpayer had already been a State A domiciliary since 2006 — the Department itself had accepted that when it did not require 2008 or 2018 Virginia returns — and the real question was whether he had re-acquired a Virginia domicile in 2019 by picking up some Virginia paperwork.

Why a new Virginia license didn't make him a resident. In 2019 the taxpayer obtained a Virginia driver's license and registered a vehicle in Virginia. A Virginia license is normally a strong indicator of intent to be a Virginian, because Virginia issues licenses only to people who certify they are residents (§ 46.2-323.1). But acquiring a domicile takes two things at once: physical presence and intent to remain (Cooper's Adm'r v. Commonwealth) — and neither one alone is enough. Here the taxpayer never actually lived in Virginia in 2019: he worked at job sites in State A and stayed in hotels there, and he only visited Virginia for about 20 days. He had leased a Virginia home, but explained it was so his wife and stepdaughter could live near other family, not for himself. He got the Virginia license only because his State A license was expiring and he could not renew it without a permanent State A street address.

The result. Because roughly 20 days of visits is not the physical presence needed to establish a Virginia domicile, and the license was credibly explained, the Department found he had not re-established Virginia domicile. The 2019 assessment was abated. The Commissioner added a pointed caution: keeping a Virginia license will likely trigger future residency inquiries, and — because a nonresident may not lawfully hold a Virginia license — providing a false residency certification can carry a penalty (§ 46.2-348).

What this means for you

People who live in another state but keep (or get) Virginia paperwork

A Virginia driver's license, a Virginia vehicle registration, or a leased Virginia home does not by itself make you a Virginia resident for income tax. Domicile requires that you actually be present in Virginia with the intent to stay. If you live and work elsewhere and only visit, a handful of Virginia connections — even a freshly issued license — generally will not create Virginia domicile. But be ready to explain those connections, because the Department starts from the presumption that a Virginia license signals Virginia intent.

If you got a Virginia license for convenience or out of necessity

That is exactly what happened here, and it worked — but only because the taxpayer had a credible reason (his old state's license was expiring and he lacked a permanent address there) and could show he was not actually living in Virginia. Note the flip side the Commissioner flagged: Virginia law lets only certified residents hold a Virginia license, so obtaining one while claiming to be a nonresident is legally awkward and can expose you to a false-statement penalty. Fixing the registration in your true home state is the cleaner path.

Tax preparers

For a client who is genuinely domiciled elsewhere but has acquired Virginia indicia, the winning record is day-count and living arrangements: where the client physically was, where they worked, and who was actually using any Virginia home or vehicles. Document the reason for each Virginia connection. And remember the burden is on the taxpayer (23 VAC 10-110-30 B 3) — the Department will treat a Virginia license as intent unless you rebut it.

Common questions

Q: I live in another state but have a Virginia driver's license. Am I a Virginia resident for taxes?
A: Not automatically. A Virginia license is treated as a strong sign of intent to be a Virginian, but domicile also requires physical presence. In this ruling the taxpayer held a Virginia license and had a Virginia-registered car yet was still found to be a nonresident, because he only visited Virginia about 20 days and actually lived and worked in another state.

Q: I registered a car and leased an apartment in Virginia for my family. Does that make me a Virginia resident?
A: Not where you don't live there yourself. Here the Virginia home was leased for the taxpayer's wife and stepdaughter, and he never lived in it — so it did not establish his Virginia domicile.

Q: How many days in Virginia is "enough"?
A: There's no single number that creates domicile, but about 20 days of occasional visits was clearly not enough physical presence to acquire a Virginia domicile. (Separately, spending more than 183 days in Virginia can make you an "actual" resident regardless of domicile.)

Q: Is it a problem to keep a Virginia license after moving away?
A: It can be. Beyond inviting residency inquiries, Virginia issues licenses only to certified residents, so holding one as a nonresident is legally problematic and a false residency certification can carry a penalty (§ 46.2-348). Updating your license and registration in your true home state avoids the issue.

Citations and references

Statutes and regulations:

• Va. Code § 58.1-1821 — application to the Tax Commissioner to correct an assessment
• 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; obtaining/renewing one is a strong indicator of Virginia intent
• Va. Code § 46.2-348 — penalty for a false statement (such as a false residency certification) to a Commonwealth agency
• 23 VAC 10-110-30 B 3 — burden on the individual to prove a change of, or failure to establish, Virginia domicile

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

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 25-104

Original ruling text

September 24, 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 * (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 the Taxpayer 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 * (State 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 since at least 2006. In connection with its examination of the Taxpayer’s residency for the 2008 and 2018 tax years, the Department observed that he had obtained a State A driver’s license, filed his federal returns with a State A address, and had no Virginia source income. During the 2019 taxable year he was employed at various locations within State A and stayed in hotels in State A during each project. In addition, he held a State A driver’s license from 2003 until it expired in 2019.

The Taxpayer obtained various connections with Virginia. He leased a residence in Virginia from May 2018 until May 2019. In addition, in 2019, he obtained a Virginia driver’s license and registered a vehicle in Virginia.

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).

As stated above, a change of domicile requires that a taxpayer prove two elements concurrently: 1) that they abandoned the old domicile and had no intent to return to it; and 2) that they established a new domicile, which must have been formed by physical presence coupled with the intent to remain permanently or indefinitely. In this case, the Taxpayer appears to have acquired a State A domicile in 2006. The Department effectively acknowledged this change in domicile when it concluded that he was not required to file a 2008 or 2018 Virginia resident return.

The Taxpayer’s acquisition of a Virginia driver’s license in 2019, however, would indicate an intent to establish domicile in Virginia. The Taxpayer explains that he obtained the license because his State A license was expiring and he could not renew it because he did not have a permanent physical address in State A. The Taxpayer also explains that he leased the Virginia residence so that his wife and stepdaughter could live near other family members. He never lived in the Virginia residence in 2019 and only made occasional visits totaling approximately 20 days.

Acquiring domicile in a new location 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 connections if they have not established a physical presence in the jurisdiction and the concurrent intention to remain there 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 previously established domicile in State A 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 made occasional visits to Virginia totaling approximately 20 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.

While the Department concedes that the Taxpayer was not a resident of Virginia for the taxable year at issue, he should be aware that continuing connections with Virginia, such as possession of a Virginia driver’s license, will likely result in future contacts by the Department with respect to the situs of the Taxpayer’s domicile. As in any determination, a change in the facts and circumstances could result in a change in the Department’s determination in subsequent taxable years. In addition, the Taxpayer should be aware that Virginia law does not permit nonresidents to obtain Virginia driver’s licenses, and persons providing a false statement to an agency of the Commonwealth may be subject to penalty under Virginia law. See Virginia Code § 46.2-348.

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 **.

Sincerely,

James J. Alex

Tax Commissioner

Commonwealth of Virginia

AR 4742.Y

Related Documents

00-151

02-149

13-97

15-4

23-110