I moved to another state years ago but kept voting in Virginia and renewing my Virginia driver's license — am I still a Virginia resident for income tax?

Plain-English summary

A retiree argued he was not a Virginia resident for 2020 — he had moved away years earlier. The Department disagreed and held he remained a Virginia domiciliary resident, taxable on all of his income, because he never fully cut his Virginia ties. He does, however, get a credit for the tax he paid to his new state.

The facts. He left Virginia in 2011 (retiring to "State B"), then in 2014 moved to "State A" for a job and lived there since — buying a home there, registering three cars there, and filing State A resident income tax returns. But he also kept significant Virginia connections: a home he had owned since 1996, a Virginia driver's license he renewed in 2018 (long after leaving), an active Virginia voter registration he used to vote by absentee ballot, and a Virginia-registered car.

The law. Changing domicile requires proving two things at once: (1) you abandoned your old domicile with no intent to return, and (2) you established a new one through physical presence and intent to remain (Cooper's Adm'r v. Commonwealth). The burden is on the taxpayer (§ 58.1-205; 23 VAC 10-110-30 B 3), and no single factor decides it — but two of his acts carried outsized weight:

• Voting. Because Virginia voter eligibility requires both domicile and a place of abode, the Department treats actively voting as a registered Virginia voter as conclusive evidence that you considered Virginia your domicile during that time (§ 24.2-101; Virginia Constitution, art. II, § 1).
• Driver's license. Only Virginia residents may hold a Virginia license (§ 46.2-323.1); once you are a Virginia domiciliary, renewing that license while living elsewhere is very strong evidence of intent to remain a Virginia resident.

His explanations — that the license showed his State A address, and that his adult children and ex-spouse used the Virginia home and car — did not overcome those acts. The Department expects people who truly change domicile to register vehicles, get a new license, and register to vote in the new state; retaining the old-state versions suggests they were not sure they meant to leave.

Result. He remained a Virginia domiciliary resident for 2020 (§ 58.1-302) and is taxable on all income wherever earned — but may claim a credit for income tax paid to State A (§ 58.1-332). The assessment was issued on the best information available (§ 58.1-111); he should file a 2020 Virginia resident return within 30 days (claiming the credit) or that assessment stands, and he should re-check 2021 and later years.

What this means for you

If you have moved out of Virginia but kept ties

Two actions are close to decisive against you: voting in Virginia and renewing a Virginia driver's license after you have moved. Virginia treats both as declarations that you still consider Virginia home, because legally you may do neither as a nonresident. If you intend to change domicile, change these promptly in your new state — and change your voter registration above all. Keeping "just in case" ties is read as uncertainty about leaving.

Proving a change of domicile

You must show both halves — leaving the old and establishing the new — and you carry the burden. Build an affirmative record in the new state (license, registrations, voting, home, employment, banking, community ties) rather than relying on explanations for why you kept Virginia connections. No single factor controls, but the Department weighs the official acts heavily.

The consolation: credit for the other state's tax

Even when you lose the residency fight, you are not necessarily double-taxed. A Virginia resident gets a credit for income tax paid to another state on earned/business income or capital gains (§ 58.1-332), limited to the lesser of the other state's tax or the Virginia tax on that same income. File the Virginia resident return and claim it.

Common questions

Q: I live and work in another state now. Why does Virginia still tax me?
A: Because Virginia taxes its domiciliary residents on all income wherever earned, and you remain a Virginia domiciliary until you prove you both abandoned Virginia and established a new domicile elsewhere. Physical relocation alone is not enough if your official ties stay in Virginia.

Q: Does voting in Virginia really make me a Virginia resident?
A: For domicile purposes it is close to decisive. Virginia voter eligibility requires domicile, so the Department treats actively voting as a registered Virginia voter as conclusive evidence that you considered Virginia your domicile during that period.

Q: I kept my Virginia driver's license for convenience. Is that a problem?
A: It can be. Only Virginia residents may hold a Virginia license, so renewing one after moving away is very strong evidence you intended to stay a Virginia resident — even if the license shows an out-of-state address.

Q: If I lose, am I taxed twice on the same income?
A: Not fully. As a Virginia resident you can claim a credit for income tax paid to the other state on the same earned or business income (or capital gains), up to the lesser of the two states' tax on that income (§ 58.1-332).

Citations and references

Statutes and regulation:

• Va. Code § 58.1-302 — domiciliary vs. actual resident; a Virginia domiciliary is taxed even while living or working elsewhere
• Va. Code § 58.1-205; 23 VAC 10-110-30 B 3 — assessment prima facie correct; the taxpayer bears the burden of proving a change of domicile
• Va. Code § 58.1-332 — credit for income tax paid to another state
• Va. Code § 58.1-111 — assessment on the best information available when no return is filed
• Va. Code § 46.2-323.1 (with §§ 46.2-100, 46.2-307) — only Virginia residents may hold a Virginia driver's license
• Va. Code § 24.2-101; Virginia Constitution, art. II, § 1 — voter residence requires both domicile and a place of abode

Prior public documents (described here, not linked): P.D. 00-151 (a Virginia license alone does not defeat a new out-of-state domicile), P.D. 02-149 (renewing a Virginia license is a strong indicator of Virginia domiciliary intent), and P.D. 97-301 (the out-of-state credit limitation). A companion 2025 determination, P.D. 25-68, reached the same "failure to abandon" result for another taxpayer whose Virginia voting sealed the outcome.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 25-67

Original ruling text

May 14, 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, 2020.

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 2020 taxable year. A review of the Department’s records showed that the Taxpayer had not filed a Virginia return. The Department requested additional information from the Taxpayer in order to determine if his income was taxable in Virginia. Based on his responses and the information otherwise available, the Department determined that the Taxpayer was taxable as a domiciliary resident of Virginia and issued an assessment. The Taxpayer filed an application for correction, contending he was a resident of * (State A) during the 2020 taxable year.

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 Taxpayer lived and worked in Virginia until 2011, when he retired and moved to * (State B). The Taxpayer explains that he returned to Virginia briefly in 2014 and then moved to State A after receiving an employment offer there. He states that he has lived and worked in State A ever since. During this time, he purchased a residence in State A, registered three cars in State A, and filed State A resident income tax returns.

The Taxpayer, however, retained significant connections to Virginia. He has owned a residence in Virginia since 1996. He maintained a Virginia driver’s license, which he renewed in 2018, long after he moved to State A. He also remained registered to vote in Virginia and has voted by absentee ballot during the period he claimed to be a State A resident. In addition, he owned a car registered 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 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 fact that an individual has a Virginia driver’s license is one factor to consider, among other possible factors, in any given domicile case. Nonresidents are not permitted to hold Virginia driver’s licenses. See Virginia Code § 46.2-323.1. They are, however, permitted to continue to use their licenses from their home states or countries. See Virginia Code § 46.2-307. For the purposes of Title 46.2 of the Code of Virginia , “nonresident” is generally defined as every person who is not domiciled in the Commonwealth. See Virginia Code § 46.2-100. Thus, in general, an individual must be a domiciliary resident of Virginia in order to hold a Virginia driver’s license.

Once it is clear that an individual has established domiciliary residency in Virginia, subsequent renewals of a Virginia driver’s license even while absent from the state will be considered very strong evidence of the individual’s intent to remain a domiciliary resident of Virginia. That is because the basis of the individual’s claim to be entitled to a Virginia driver’s license would no longer be based on the length of time they were physically present in Virginia as an actual resident, but rather on the implication that they remained a domiciliary resident of Virginia.

With regard to eligibility to vote, Article II, Section 1 of the Constitution of Virginia states in relevant part as follows:

In elections by the people, the qualifications of voters shall be as follows: Each voter shall be a citizen of the United States, shall be eighteen years of age, shall fulfill the residency requirements set forth in this section, and shall be registered to vote pursuant to this article. . . . The residence requirements shall be that each voter shall be a resident of the Commonwealth and of the precinct where he votes. Residence, for all purposes of qualification to vote, requires both domicile and place of abode.

The domicile and place of abode requirement found in the Constitution of Virginia is also reflected in the definition of “residence” or “resident” used in Virginia election statutes. See Virginia Code § 24.2-101. Consistent with the precedent established by the Virginia Supreme Court, the Department will consider the fact that an individual obtains a Virginia voter’s registration and actively votes as a Virginia resident in elections in Virginia to be conclusive evidence that that individual considered Virginia to be their domicile during the time they held and used such registration. See Cooper’s Adm’r , 121 Va. at 349-50.

The Taxpayer explains that he maintained his Virginia driver’s license because he did not want a State A driver’s license. He asserts that his Virginia driver’s license lists his State A address, which evinces his State A residency. He further explains that his adult children live in his Virginia residence and that the car registered in Virginia is used by his ex-spouse.

Virginia Code § 58.1-205 provides that, in any proceeding relating to the interpretation of the tax laws of Virginia, an “assessment of a tax by the Department shall be deemed prima facie correct.” As such, the burden of proof is on the Taxpayer to show he was not subject to income tax in Virginia.

As stated above, a change of domicile requires that an individual prove two elements concurrently: 1) that the individual abandoned the old domicile and had no intent to return to it; and 2) that the individual established a new domicile, which must have been formed by physical presence coupled with the intent to remain permanently or indefinitely. The Department expects that when individuals are seeking a permanent change of domicile, they will normally register vehicles, obtain a new driver’s license, register to vote, and perform other official acts indicating their intent to change domicile. To the extent such connections may be retained with Virginia, it suggests that the individual may not have been certain that they intended to abandon their Virginia domicile. If a permanent change of residence were intended, there would be no need to retain such connections with a former state.

Credit for Taxes Paid to Another State

Virginia Code § 58.1-332 A allows Virginia residents a credit on their Virginia return for income taxes paid to another state provided the income is either earned or business income or gain from the sale of a capital asset.

Virginia law does not necessarily allow a taxpayer to claim a credit for the total amount of tax paid to another state. Rather, the credit is limited to the lesser of the amount of tax actually paid to the other state or the amount of Virginia income tax actually imposed on the taxpayer on the income earned or derived in the other state. See P.D. 97-301 (7/7/1997). The limitation is computed by multiplying the individual’s Virginia tax liability by a fraction, the numerator of which is the income upon which the other state’s tax is imposed, and the denominator of which is Virginia taxable income. As an actual resident of State A and a domiciliary resident of Virginia, the Taxpayer would be allowed a credit against his Virginia income tax liability for income tax paid to State A to the extent permitted by Virginia Code § 58.1-332.

CONCLUSION

In this case, the Taxpayer’s ongoing connections with Virginia raise significant doubts as to his intent to abandon his Virginia domicile. In particular, using a Virginia voter’s registration to vote and having his Virginia driver’s license reissued and renewed during the period when he was not actually residing in Virginia are very strong indicators of domiciliary intent.

The Department acknowledges that a determination of a change in domicile is evidenced by a process in which no single factor is dispositive. As such, facts as they existed both before and after the exact taxable year at issue may be instructive as to the taxpayer’s intent over a broader period of time that includes such year. After carefully considering all of the information presented, the Department concludes that the Taxpayer has failed to prove that he abandoned Virginia as of the 2020 taxable year. Accordingly, he remained taxable as a domiciliary resident of Virginia for the 2020 taxable year. The Taxpayer will, however, be able to claim a credit for the income tax he paid to State A.

The assessment at issue was made based on the best information available to the Department pursuant to Virginia Code § 58.1-111. The Taxpayer, however, may have information that better represents his Virginia income tax liability for the taxable year at issue. Therefore, he should file a 2020 Virginia resident income tax return and claim credit for income tax paid to State A to the extent permitted by Virginia Code § 58.1-332. The return should be submitted within 30 days from the date of this letter to: Virginia Department of Taxation, Office of Tax Policy and Legal Affairs, Tax Adjudication and Resolution Division, P.O. Box 27203, Richmond, Virginia 23261-7203, Attention: *. The return will be reviewed and processed, and the assessment will be adjusted as warranted. If the return is not received within the allotted time, the assessment will be adjusted based on the available information.

Further, in light of this determination, the Taxpayer should reevaluate his residency status for the 2021 and later taxable years to determine if he had a Virginia filing requirement and, if necessary, file the appropriate returns.

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 5028.Q

Related Documents

97-301

00-151

02-149