W. Va. Code R. § 110-21-7

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 110-21-7 - Resident And Nonresident Defined

7.1. Resident individual. An individual may be a resident of West Virginia for income tax purposes, and be taxable as a resident, even though such individual would not be deemed a resident for other purposes.

7.1.1. As used in these regulations, the term "resident individual" means and includes;

7.1.1.1. All persons domiciled in West Virginia, with the exception of those domiciliary residents who maintain no permanent place of abode in this State, maintain a permanent place of abode elsewhere and spend in the aggregate not more than thirty (30) days of the taxable year in this State; or.

7.1.1.2. Any person, other than a member of the Armed Forces of the United States, who is not domiciled in West Virginia but who maintains a permanent place of abode in this state and spends in the aggregate more than 183 days of the taxable year in this state.

7.1.2. Domicile Defined. Domicile, in general, is the place which an individual intends to be his permanent home; the place to which he intends to return whenever he may be absent.

7.1.2.1. A domicile once established continues until the person in question moves to a new location with the bona fide intention of making his fixed and permanent home there.

7.1.2.2. No change of domicile results from a removal to a new location if the intention is to remain there only for a limited time even if the individual has sold or disposed of his former home.

7.1.2.2.a. The burden is upon any person asserting a change of domicile to show that the necessary intention to change domicile existed.

7.1.2.2.b. In determining an individual intention regarding a change of domicile, his declarations will be given due weight but will not be conclusive if they are contradicted by his conduct.

7.1.2.2.c. The fact that a person registers and votes in one place is an important indication of domicile but not necessarily determinative, especially if the facts indicate that such actions were merely undertaken to escape taxation in a particular jurisdiction.

7.1.2.3. Domicile is not dependant on citizenship. For example, an alien who has permanently established his home in West Virginia is domiciled in this state regardless of whether he has become a citizen of the United States or has applied for citizenship. A citizen of the United States, however, will not ordinarily be deemed to have changed his domicile by going to a foreign country unless it is clearly established that he intends to remain there permanently. A citizen of the United States domiciled in West Virginia who goes abroad because of an assignment by his employer or for study, research or recreation, does not lose his West Virginia domicile unless it is clearly shown that such individual intends to remain abroad permanently and not to return.

7.1.2.4. An individual can have only one (1) domicile. Where an individual has two (2) or more homes, his domicile is at the home he regards as principal and permanent. In determining his intention in this matter, the length of time customarily spent at each location is important but not conclusive. A person who maintains a permanent place of abode in West Virginia and spends more than one hundred eighty-three (183) days of the taxable year in this state is taxable as a resident, regardless of his domicile.

7.1.2.5. A wife's domicile follows that of her husband unless a separate domicile has been established by her. A child's domicile generally follows that of his father, or of his mother after the father's death, until the child reaches the age of self-support and actually establishes his own separate domicile. The domicile of a child of divorced parents ordinarily follows that of the custodial parent.

7.1.3. Permanent place of abode. A permanent place of abode means a dwelling place permanently maintained by the taxpayer, whether or not owned by him, and will generally include a dwelling place owned or leased by his or her spouse.

7.1.3.1. A mere camp or cottage, or other similar site or dwelling, which is suitable and used only for vacation purposes does not constitute a permanent place of abode.

7.1.3.2. A place of abode, whether in West Virginia or elsewhere, will not be deemed permanent if such abode is maintained only during a temporary stay for the accomplishment of a particular purpose.

7.1.3.2.a. Where an individual domiciled in another state is assigned to his employer's West Virginia office for a fixed and limited period, after which he is to return to his permanent location, and said individual takes an apartment or other dwelling in West Virginia during the fixed and limited period, he will not be deemed a resident for income tax puposes even if he spends more than one hundred eighty-three (183) days of the taxable year in this State, because his place of abode here is not permanent. This person, however, will be taxable as a nonresident for income tax purposes on his income from West Virginia sources, including his salary or other compensation for services performed in West Virginia.

7.1.3.2.b. If an individual's assignment to his employer's West Virginia office is not for a fixed or limited period, but is for an indefinite period, the individual's West Virginia place of abode will be deemed a permanent place of abode and he will be a resident for tax purposes if he spends more than one hundred eighty-three (183) days of the year in West Virginia.

7.1.3.3. In the case of a person domiciled in West Virginia, the maintenance of a permanent place of abode in this state is alone sufficient to make him a resident for tax purposes, even though he remains outside the state for the entire year because the one hundred eighty-three (183) day rule applies only to taxpayers who are not domiciled in West Virginia.

7.1.4. Rules for days within and without West Virginia. In counting the number of days spent within and without West Virginia, presence within the State for any part of a calendar day constitutes a day spent within the State, except that such presence within the State may be disregarded if it is solely for the purpose of boarding a plane, train or bus for travel to a destination outside West Virginia, or while traveling by motor vehicle, plane or train through West Virginia to a destination outside the State. Any person domiciled outside this state who maintains a permanent place of abode within this State during any taxable year and claims to be a nonresident must keep and have available for examination by the Tax Commissioner adequate records to substantiate the fact that he did not spend more than one hundred eighty-three (183) days of such taxable year within the State.

7.1.5. Certain Persons Not Deemed Residents Although Domiciled in West Virginia. Any individual domiciled in West Virginia is a resident for income tax purposes for a specific taxable year, unless for such year he satisfies all three (3) of the following conditions:

(1) he maintains no permanent place of abode in West Virginia,

(2) he maintains a permanent place of abode elsewhere, and

(3) he spends in the aggregate not more than thirty (30) days of the taxable year in West Virginia.

7.1.5.1. Example. An individual, although retaining his West Virginia domicile, maintains his only permanent place of abode in the State of New York. As long as this individual continues to meet all three (3) conditions set forth under Subsection 7.1.5 above, he will be a nonresident of West Virginia for income tax purposes. If, however, for any taxable year there is a failure to meet any one (1) of the three (3) Subsection 7.1.5 conditions, the individual is subject to West Virginia's personal income tax as a resident for that year.

7.1.5.2. Where an individual domiciled in West Virginia claims to be a nonresident for any taxable year, the burden is upon said individual to show that during the year in question all three (3) Subsection 7.1.5 conditions had been satisfied.

7.2. Nonresident individual. For personal income tax purposes, a nonresident individual is any person who is not a resident as defined in subsection 7.1 of this regulation.

7.2.1. All references in these regulations to nonresidents are equally applicable to nonresident aliens unless otherwise specifically provided.

7.3. Resident estate or trust. A resident estate or trust means and includes:

(1) The estate of a descendent who at his death was domiciled in this state;

(2) a trust created by will of a descendent who at the date of his death was domiciled in West Virginia; or

(3) a trust created by, or consisting of property of, a person domiciled in West Virginia.

7.3.1. Examples.

Example 1. An individual who is domiciled in Canada, creates a trust with a bank in Charleston, as trustee. The corpus of this trust consists of securities of American corporations, which are actively traded by the trustee on the several Stock Exchanges and also consists of rental property located in West Virginia. The beneficiaries of the trust are all West Virginia residents. Regardless of whether the trust is held to be a resident of the United States for federal income tax purposes, it is, for purposes of this State's personal income tax law, a nonresident trust.

Example 2. An individual who is a domiciliary resident of West Virginia, creates a trust with the a bank in Pittsburgh, Pennsylvania, as trustee. The trust corpus consists of West Virginia rental property and Pennsylvania rental property. The beneficiaries of the trust are all residents of Pennsylvania. The trust is a resident trust for West Virginia income tax purposes.

7.4. Nonresident estate or trust. A nonresident estate or trust is an estate or trust which is not a resident estate or trust as defined in subsection 7.3. of this regulation.

7.5. Cross reference. For effect of a change of an individual's resident status, see section 54 of these regulations.

W. Va. Code R. § 110-21-7