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Jax Tax
Jax Tax, Tax Attorney
Category: Tax
Satisfied Customers: 1377
Experience:  JD, LL.M in Business and Taxation, IRS Enrolled Agent. Expert in Business and Tax Transactions
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I need to know what tax status to use for filing my Virginia

Customer Question

I need to know what tax status to use for filing my Virginia state personal income taxes in 2011. I am a retiree who bought a condo in FL in April 2011 to be close to my aging, infirm parents. I established legal residency and car registration in FL in May 2011. I will be physically out of VA more than 183 days in 2011, mostly in FL helping my parents and in CA helping a daughter with childcare. I still own a home in VA which a family friend has been caretaking for me since April.

My husband, also retired, has serious dementia and will remain in the assisted living facility in VA where he has been since Sept 2010. I stay in my VA house on periodic visits to VA to check on my husband's care and physical wellbeing.

My husband and I maintain separate financial accounts (based on our respective pensions and investments and expenses -- we have no jointly-owned properties) and neither of us has Virginia-derived income. We will file Federal taxes jointly for 2011. I assume we will file separately in VA for 2011 (on a combined return). I assume he should file as a VA resident for 2011 on his income. Should I be filing in VA in 2011 as a part-year resident or as a non-resident (based on physical presence test) for 2011? I have consulted the Virginia Dept of Taxation Website and it is not clear on this point. If I file as a part-year VA resident, is there some prorating of the amount of my 2011 income subject to taxation?
Submitted: 3 years ago.
Category: Tax
Expert:  Lev replied 3 years ago.

LEV :

Hi and welcome to Just Answer!
You may be a part-year resident if your residency in Virginia began or ended during the taxable year. Thus if you was a residents of Virginia who move out of Virginia during the taxable year
and become domiciliary residents of another state – you are a part year resident, provided you do not move back to Virginia for at least six months.


As a general rule, part-year residents file Form 760PY. If you will file a joint federal tax return -you may file a joint VA tax return. If one spouse is a full-year resident and the other is a part-year resident, the couple may file together on Form 760PY. As the part-year resident spouse – you will compute a prorated exemption amount. The full-year resident spouse will claim the full exemption amount.


Generally because you will file a joint federal tax return - and only one spouse is a VA resident - your spouse is required to file a separate VA tax return. That will be true for the next year. On separate VA tax returns - you will report federal adjusted gross income (AGI), exemptions and deductions on VA returns as if separate federal tax returns were filed. Please be aware that all federal rules must be applied - for instance - if one spouse itemized deductions - the other spouse must itemize as well.


Please see for reference - http://www.tax.virginia.gov/taxforms/Individual/Income%20Tax/2010/760PYInstr.pdf

Customer:

Thanks but I already know everything you said. As I mentioned in the background info I had read the VA state tax website information for the various statuses already. When you say "you MAY be a part-year resident", that is precisely the moot question I have asked to be clarified.

Expert:  Jax Tax replied 3 years ago.
For purposes of residency, if your husband is over 60 his residence is VA if in a long term facility. If short term or under 60 he could claim FL as well.
You would be a.part year resident until you became a FL resident in May. After that, your income is not taxable in VA.
Your husbands income if over 60 and long term is taxable.in VA.
You file a joint part year return. You can allocate exemptions and income on a joint state return. You will not file.separate.
Jax Tax, Tax Attorney
Category: Tax
Satisfied Customers: 1377
Experience: JD, LL.M in Business and Taxation, IRS Enrolled Agent. Expert in Business and Tax Transactions
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Customer: replied 3 years ago.
Hope I am querying Jax Tax but site is confusing. Do I also have the option just to file as non-resident for the year if out of VA for more than 183 days in the year, assuming some of those days are in the time before I established FL residency and that none of my income (pension+investments only) is attributable to VA employment? The instructions on PY VA form seem to offer this option but your advice seems more logical if the issue has been litigated.
Expert:  Jax Tax replied 3 years ago.
Really a non resident and part year resident return function in the same way. To answer your question, yes you can. It really just comes down to properly allocating your and your husbands income on the VA return.
Customer: replied 3 years ago.
Thanks; very helpful. And in the case of my filing non-resident for whole of 2011 based on days away and my husband filing resident, we would need, I think, to file separate VA returns with income, deductions, etc properly allocated, but could still file jointly for IRS.

Expert:  Jax Tax replied 3 years ago.
Spouses Filing Different Returns (Mixed Residency)

In selecting the proper residency status, married couples sometimes find that no one status completely addresses their circumstances. The filing of two returns for the taxable year, using different residency statuses, may be necessary in such cases. Examples are discussed below.

The most common instance of mixed residency status occurs when one spouse is a Virginia resident and the other is a nonresident who has no liability in Virginia. Married couples frequently encounter this situation when one spouse is in the military, stationed in Virginia, and claims another state as his or her home of record. In a case like this, the resident spouse must file a separate return under Filing Status 3. The resident spouse may not automatically claim all of the exemptions for dependents or all of the itemized deductions reported for federal income tax purposes. Federal rules must be applied to determine the allowable amounts. As a general rule, the spouse claiming the exemption for a dependent must be reporting at least half of the total federal adjusted gross income. In addition, the spouse must be able to support his/her claim of itemized deductions. If the itemized deductions cannot be accounted for separately, the deductions may be allocated proportionately between the spouses, based on their shares of total income from all sources.  If the nonresident spouse has any Virginia source income to report, he/she must file a separate return on Form 763.

In a case where one spouse is a full-year resident and the other is a part-year resident, the couple can file a joint or combined return on Form 760-PY. Appropriate residency dates must be entered for each spouse. In this situation, the full-year resident will not be allowed to subtract income from other states, and will not be required to prorate personal exemptions. If the couple chooses to file separate Virginia returns, the full-year resident must file on Form 760. If separate returns are filed, the rules for allocating personal exemptions and itemized deductions discussed above must be applied.

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