Stuart A. Bronstein wrote:
- quote -

No, the burden would remain with the taxpayer. An
individual can easily be a tax resident of two states at the
same time. With respect to domicile (which is not the same
as tax residence), the burden is generally on the party that
wishes to establish a change. In order to prevail on the
domicile issue, the taxpayer would have to show by a
preponderance of the evidence that he had met all of the
requirements for a change of domicile: (1) moving away from
the previous domicile; (2) moving to and residing in a new
location; and (3) intending to remain in the new location
permanently or indefinitely. State courts generally will
look at an individual's subsequent actions to determine
intent. In other words, if your actions are consistent with
an intent to remain in the new location permanently, you
will probably be held to have changed your domicile. If
your actions are inconsistent with that intent (e.g., you
returned to the previous domicile within a relatively short
time), then in order to prevail you generally would have to
show that they were the result of changed circumstances that
could not have been foreseen at the time you left the old
place.

- quote -

Such a case would be litigated through the Virginia courts.
If the Virginia Supreme Court ruled against the taxpayer, he
could file a petition for certiorari with the U.S. Supreme
Court based on a U.S. constitutional argument -- i.e., that
the state's definition of domicile or residence, or its
application to the taxpayer's facts, was so broad as to
violate the taxpayer's right to due process.

Sorry to be so long getting to this -- I was traveling for a
month and checked in here only occasionally, so I missed the
responses to this post.

Katie in San Diego

The foregoing is intended for educational purposes only and
does not constitute legal or professional advice.

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me[at]whatever.com wrote:
- quote -

Likely the taxpayer would just have to show evidence that he
was actually a resident of another state. He could show
that by having received letters elsewhere, along with voter
registration, for example. Then the burden would shift to
the estate to show that he was a resident.

- quote -

They'd have to. There are two grounds for going into
federal court. One is that the suit is based on federal
law, which it wouldn't be in this case.

The other ground is that the the parties are residents of
different states. I don't see how VA could justify alleging
that the defendant was not a VA resident when that's exactly
what they were suing for.

- quote -

Prove that he's not a VA resident.

Stu

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Katie" <katiej_1958[at]yahoo.com> wrote:

- quote -

How is it possible for an individual to prove either of
those? It would be proving a negative.

If VA were to sue the person for back taxes, based on
domicile, would they use a VA court? What would the person
have to do to get the case moved out of VA?

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Federal and state conditions may be different.. Changing
your address, drivers license, voting may be sufficient for
the feds. (You are supposed to tell the IRS or SS your new
address, but I find they usually update off of the annual
income tax filing.) A state may consider you a part-time
resident for time you spent there, especially if the the
employer considers that to be the case and pays that state's
taxes. For example a student summer job. Most states have
fractional income tax filinf for part-time residents.

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"Katie" <katiej_1958[at]yahoo.com> wrote:

- quote -

How is it possible for an individual to prove either of those?
It would be proving a negative.

If VA were to sue the person for back taxes, based on domicile,
would they use a VA court? What would the person have to do to
get the case moved out of VA?

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Charles Goodman wrote:

- quote -

This is what the Virginia regulations have to say about
change of domicile:

************************************************

Domiciliary resident: A "domiciliary resident" is one whose
legal domicile is Virginia. Most domiciliary residents
actually live in Virginia. However actual presence in the
state is not required. Any person who has not moved from the
state with the intention of permanently residing outside of
Virginia is still a domiciliary resident, even if he or she
is actually living some place else. [ Va. Code Ann. =A7
58.1-302 ; Va. Admin. Code 23 =A7 10-110-30(B)(3) .]

Domicile: "Domicile" means the permanent place of residence
of a taxpayer, and the place to which he or she intends to
return, even if he or she is residing elsewhere. [ Va. Code
Ann. =A7 58.1-302 .]

A "domicile" once established continues until the individual
moves to a new location with the bona fide intention of
making his or her fixed and permanent home there. [ Va.
Admin. Code 23 =A7 10-110-30(B)(3) .]

A person can have only one domicile. If he or she has two or
more places of abode, the domicile is the one which he or
she regards and uses as his or her permanent home. [ Va.
Admin. Code 23 =A7 10-110-30(B)(3) .]

The determination of bona fide intention to change one's
domicile is a factual matter which must be resolved on an
individual case basis. In making this determination,
consideration is given to the individual's expressed intent,
conduct, and all attendant circumstances, including, but not
limited to the following:

financial independence;
business pursuits;
income sources;
residence for federal income tax purposes;
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;
in the case of a minor or married person, domicile of
parents, husband, or wife and/or children; and
other factors reasonably deemed necessary to determine
the person's domicile.

[Va. Code Ann. =A7 58.1-302 ; Va. Admin. Code 23 =A7 10-110-30(B)(3) .]
No single factor is dispositive in determining domicile. The
factors are examined collectively to determine if the intent
to acquire or abandon Virginia domicile exists. A simple
declaration of intent to abandon domicile, or physical
presence elsewhere is insufficient to end Virginia domicile.
[ Va. Admin. Code 23 =A7 10-110-30(B)(3) .] The fact that an
individual may have sold or disposed of his or her former
home is not conclusive of the intent to end Virginia
domicile. The fact that a person who has changed his or her
place of abode to a location outside of Virginia, but within
six months of doing so again resides in Virginia,
constitutes prima facie evidence that no intent to abandon
Virginia domicile existed. Where a question arises regarding
an individual's domicile, the Department of Taxation may
request such person to complete a questionnaire providing
factual information relevant to the determination of intent
to abandon Virginia domicile.
[Va. Admin. Code 23 =A7 10-110-30(B)(3) .]

Thus a change in domicile requires two concurrent
actions-residence in a new locale and the intention to
remain there indefinitely. The burden of proof that an
individual has abandoned or failed to establish domicile in
Virginia rests with the individual. [ Va. Code Ann. =A7
58.1-302 ; Va. Admin. Code 23 =A7 10-110-30(B)(3) .]

************************************************

If you move your family back to Florida before you leave the
US on your foreign assignment, sever all of your ties to VA,
and do not return there to live any time soon, you can
probably make a good argument that your domicile changed
back to FL before you left the US. VA could still argue
that you had not met the first requirement -- residence in
the new locale (FL)-- because you had not physically moved
there. Your wife and son would clearly have established a
new domicile in FL, but the state could argue that you had
not. Nevertheless, the facts you list would make a good
argument that you had severed all of your ties to VA, that
you already had ties in FL and had established new ones
(especially the residence and domicile of your wife and
child), and that you had no intention of returning to VA to
live. Changing everything on that list (in the regulation,
above) will go a long way toward supporting your position.
Be sure to register to vote in FL and actually vote there,
by absentee ballot if you are not physically present.

If you do have to return to work in Washington DC at some
point, you should consider living in the District or in
Maryland so as to avoid re-establishing residence in VA.

Katie in San Diego

I'm looking for some advice on how to change my domicile
from VA before taking an overseas job. My family and I
moved to Virginia from Florida in 2002 as a result of my job
being relocated. We had lived in Florida for over 10 years
and my wife still has a lot of family in Florida. I have
applied for a job with the US State Department and I feel
there is a reasonably good chance I will get an offer
sometime in the early part of 2006. I will spend probably
2-6 months training in Northern VA and would then head for
an overseas assignment. It is possible that I would come
back and work in Washington, DC, in the future and may need
to live in Northern VA for a few years before heading back
overseas or retiring (presumably to Florida).

If possible, I would like to change my state of domicile
back to Florida before heading overseas so that I wouldn't
be subject to VA state income tax. Because of the training
in Northern VA, it is unlikely that I would be able to leave
VA for more than a few days before we have to head overseas
(I won't be able to physically move to FL before heading
abroad). Once I get the State Department job, my plan is to
sell our house in VA and buy one in FL. My wife and son
would move back to FL while I am in training. I would
change our permanent address to FL and change things such as
vehicle registrations, driver licenses, etc.

Is this sufficient? What else can I do to ensure that VA
recognizes that my state of domicile has been changed to FL?
I am hoping that our previous long-term residency in
Florida and the fact that we still have family ties there
(and none in VA) will help support the change.

Again, any information would be greatly appreciated.

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