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I am a resident of Nevada & have been for 5 years. Recently,

I am a resident of...
I am a resident of Nevada & have been for 5 years. Recently, I purchased a vacation home in Arizona that I expect to spend 8-9 mo per year. My only source of income other than social security will be about $90,000 per year on my pension. If I structure the payment to happen when I'm not in Arizona, will I have to pay state taxes on the funds.
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Answered in 25 minutes by:
7/6/2013
Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 12,845
Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
Verified

NPVAdvisor :

Hi

NPVAdvisor :

ISSUE:
Who is an Arizona resident for Arizona income tax purposes?
APPLICABLE LAW:
Arizona Revised Statutes (A.R.S.) § 43-102 provides that it is the intent of the
Legislature to impose on each resident of Arizona a tax measured by taxable income
wherever derived and to impose on each nonresident a tax measured by taxable
income which is the result of activity within or derived from sources within this state.
A.R.S. § 43-104 defines the terms "resident" and "nonresident" for income tax purposes.
The term "resident" includes:
(a) Every individual who is in Arizona for other than a temporary or transitory
purpose.
(b) Every individual domiciled in Arizona who is outside Arizona for a
temporary or transitory purpose. Any individual who is a resident of
Arizona continues to be a resident even though temporarily absent from
Arizona.
(c) Every individual who spends, in the aggregate, more than nine months of
the taxable year within Arizona is presumed to be a resident. The
presumption may be overcome by competent evidence that the individual
is in the state for a temporary or transitory purpose

NPVAdvisor :

If, under this Arizona revenue procedure, you are deemed to be a resident, then you must file taxes in Arizona

NPVAdvisor :

And if you must file in Arizona, your pension will be taxed

NPVAdvisor :

The following is from the Q & A on Arizona's website, at http://www.azdor.gov/About/FAQs/MovingtoAZ.aspx


If I have income from another state is it taxable in Arizona?


Yes, an Arizona resident is subject to tax on all income wherever derived from.
NPVAdvisor :

 


What portion of my pension is taxable?


As a general rule, the same portion of your pension that is taxable for federal purposes will be taxable for Arizona purposes. However, there is a subtraction, of up to $2,500, for pension income received from the State of Arizona and its political subdivisions or from U.S. government service, including the U.S. military.
NPVAdvisor :

So, as you can see, your case turns on whether you can claim that you are only in Arizona for a "temporary or transitory purpose."

NPVAdvisor :

If you were a resident of another state that had income taxes, that would be a case where you would get a credit from your resident state for any taxes due from the non-resident state ... but in this scenario, in my experience, Arizona will argue that you are effectively a resident.

NPVAdvisor :


I will now attach the entire revenue ruling on with your case turns, for your review:

NPVAdvisor :
ISSUE:

How does an individual who restores a substantial amount held under a claim of right

compute his or her Arizona income tax liability for the year in which the amounts are

restored (repaid)?

APPLICABLE LAW:

Arizona Revised Statutes (A.R.S.) § 43-1001.1 provides that the Arizona adjusted gross

income of a resident individual is the federal adjusted gross income subject to the

modifications specified in A.R.S. §§ 43-1021 and 43-1022.

A.R.S. § 43-1021.20 requires an addition for the deduction referred to in Internal Revenue

Code (I.R.C.) § 1341(a)(4) for restoration of a substantial amount held under a claim of

right.

A.R.S. § 43-1021.21 requires an addition for the amount by which a net operating loss

carryover or capital loss carryover allowable pursuant to I.R.C. § 1341(b)(5) exceeds the

net operating loss carryover or capital loss carryover allowable pursuant to A.R.S.

§ 43-1029.F.

A.R.S. § 43-1022.23 provides a subtraction for the amount by which a net operating loss

carryover or capital loss carryover allowable pursuant to A.R.S. § 43-1029.F exceeds the

OTHER LOCATIONS: Tucson Government Mall - 400 W. CONGRESS - TUCSON

East Valley - 1440/1460 E. SOUTHERN - TEMPE

ARIZONA DEPARTMENT OF REVENUE

1600 WEST MONROE - PHOENIX, ARIZONANNN-NN-NNNN/div>
FIFE SYMINGTON

GOVERNOR

XXXXX XXXXX

DIRECTOR









Page 2


ARIZONA INDIVIDUAL INCOME TAX PROCEDURE

ITP 95-1

Page 2

net operating loss carryover or capital loss carryover allowable pursuant to I.R.C.

§ 1341(b)(5).

A.R.S. § 43-1029 provides for the computation of the Arizona income tax where a taxpayer

restores a substantial amount held under a claim of right.

I.R.C. § 1341 provides for the computation of the federal income tax where a taxpayer

restores a substantial amount held under a claim of right.

DISCUSSION:

Generally, under the claim of right doctrine, a taxpayer must include in gross income any

income to which the taxpayer has an apparent unrestricted right. Such income must be

included in the year received even though the taxpayer may be required to repay that

income in a later taxable year.

For federal income tax purposes, there are two different methods to compute the tax for

the year in which amounts held under a claim of right are required to be repaid. A

taxpayer may take a deduction for the repayment of an amount held under a claim of right

or claim a "credit." The credit is equal to the amount of tax for the prior year that was

attributable to the inclusion of the repaid amount. The taxpayer must use the method that

results in the lesser amount of tax.

The Arizona provisions are different from the federal provisions.

For Arizona income tax purposes, the taxpayer may not take a deduction, but must claim a

"credit" for the Arizona tax paid for the prior year that was attributable to the inclusion of

the repaid amount. When the taxpayer has taken a deduction for federal income tax

purposes, the taxpayer must add the amount deducted to his or her Arizona gross income.

In the case of a cash basis taxpayer, the provisions of A.R.S. § 43-1029 apply to the

taxable year in which the item of income included in a prior year under a claim of right is

actually repaid. In the case of an accrual basis taxpayer, the provisions of A.R.S.

§ 43-1029 apply to the taxable year in which the obligation for the repayment of the item

included in a prior year under a claim of right properly accrues.

Since the adjustment is made for the year of repayment, the return for the prior year in

which the income item was received is not reopened and there is no allowance for interest

on the tax paid for the earlier year. However, since the restoration will have the effect of

negating the income that was included in a prior year under a claim of right, any net

operating loss or capital loss that would have existed had the income not been included

will be established. Such losses are to be utilized in calculating the tax decrease for the

taxable year in which the amounts were included and the tax decrease for taxable years to









Page 3


ARIZONA INDIVIDUAL INCOME TAX PROCEDURE

ITP 95-1

Page 3

which the losses could have been carried. Any remaining loss is to be carried forward and

applied to taxable years subsequent to the year of restoration.

PROCEDURE:

Requirements

An individual must compute his or her Arizona income tax under A.R.S. § 43-1029 when:

1.

The taxpayer included an item of income in the gross income of a prior

taxable year (or years) because it appeared that the taxpayer had an

unrestricted right to the item.

2.

After the close of the prior taxable year (or years) it was established

that the taxpayer did not have an unrestricted right to all or part of the

item.

3.

A deduction for the repayment is allowable under the Internal

Revenue Code or Title 43 of the Arizona Revised Statutes. For

example, the repayment may constitute a deductible trade or business

expense, profit seeking expense, or a deductible loss.

4.

The amount of the deduction exceeds $3,000.

The Arizona provision does not apply to any deduction that is allowable with respect to:

1.

an item that was included in gross income by reason of the sale or

other disposition of stock in trade of the taxpayer; or

2.

other property of a kind that would properly have been included in the

inventory of the taxpayer on hand at the close of the prior taxable

year; or

3.

property held by the taxpayer primarily for sale to customers in the

ordinary course of the taxpayer's trade or business.

Tax Computation

When a taxpayer is required to compute his or her tax under A.R.S. § 43-1029, the Arizona

income tax is the tax for the taxable year less the Arizona income tax decrease for the

prior taxable year (or years) which would result solely from the exclusion of such item (or

portion thereof) from gross income for the prior taxable year (or years).









Page 4


ARIZONA INDIVIDUAL INCOME TAX PROCEDURE

ITP 95-1

Page 4

When computing the amount of decrease in tax for a prior taxable year (or years) resulting

from the exclusion from gross income of the income included under a claim of right, the

taxpayer must first ascertain the amount of tax previously determined for the taxpayer for

such prior taxable year (or years).

The tax previously determined is the sum of the amounts shown by the taxpayer on his

return (or returns), plus any amounts which have been previously assessed (or collected

without assessment) as deficiencies or which appropriately should be assessed or

collected, reduced by the amount of any refunds or credits which have previously been

made or which appropriately should be made.

After the taxpayer has ascertained the tax previously determined, he or she must then

determine the decrease in tax, if any, resulting from the exclusion from gross income of all

or that portion of the income included under a claim of right to which the deduction is

attributable.

The following examples will illustrate how a taxpayer computes the decrease in tax for a

prior taxable year (or years).

Example (1):

Facts:

For the taxable year 1993, a single individual had Arizona taxable income of

$35,000 consisting entirely of sales commissions on which he paid Arizona

income tax of $1,565 (there were no tax credits for the year). In 1995, it was

determined that the commissions were erroneously computed for 1993.

Accordingly, the taxpayer pays back $10,000 of the commissions.

The taxpayer's taxable income for 1995, without regard to the $10,000

repayment, was $12,000. The tax on $12,000 is $405. Therefore, the

taxpayer enters $405 on his 1995 Arizona income tax return on the line for

computing the 1995 tax.

Under A.R.S. § 43-1029, this taxpayer computes the decrease in tax for 1993

as follows:

Tax paid in 1993 on $35,000

$ 1,565

Tax payable in 1993 on $25,000

1,040

Decrease in prior year's tax

$ 525









Page 5


ARIZONA INDIVIDUAL INCOME TAX PROCEDURE

ITP 95-1

Page 5

The $525 is treated as having been paid on the last day prescribed by law for

the payment of the tax for 1995 and is shown as a tax payment on the 1995

tax return. The taxpayer writes "A.R.S. § 43-1029 - $525" next to the space

on the 1995 Arizona individual income tax return on which the taxpayer

enters the total of his 1995 tax payments (i.e., Arizona withholding, estimated

tax payments, and extension payments). The taxpayer includes the $525 in

the total entered on that line. Therefore, the excess of $120 ($525 - $405)

may be refunded to the taxpayer.

The taxpayer also attaches a schedule explaining the amounts restored and

the computation of the prior year's tax reduction to his 1995 tax return.

Example (2):

Facts:

For the taxable year 1990, a single individual had Arizona taxable income of

$65,000 consisting of the following:

Capital gain

$ 90,000

Capital loss

<30,000>

Ordinary income

15,000

Itemized deductions

<8,000>

Personal exemption

<2,000>

Taxable income

$ 65,000

On the taxable income of $65,000, the taxpayer paid Arizona income tax of

$3,328 (there were no tax credits for the year).

In taxable year 1995, the taxpayer is required to restore the $90,000 capital

gain. The taxpayer's taxable income for 1995, without regard to the $90,000

repayment, was $50,000.

Due to the restoration of the 1990 capital gain, this taxpayer has a $30,000

capital loss for the 1990 taxable year. Therefore, when this taxpayer

computes the decrease in tax, he must compute a tax decrease for taxable

years 1991, 1992, 1993, and 1994. (For simplicity, the example assumes no

capital gains in subsequent years and the same amount of ordinary income

in each year.) Since the capital loss must be carried over to the same extent

and in the same manner as provided for federal income tax purposes, the

taxpayer must apply $3,000 of the loss carryover to each prior taxable year

(1990, 1991, 1992, 1993, and 1994) and $3,000 to the current taxable year









Page 6


ARIZONA INDIVIDUAL INCOME TAX PROCEDURE

ITP 95-1

Page 6

(1995). The remaining $12,000 of capital loss must be carried forward and

utilized for taxable year 1996 and succeeding taxable years.

For each of the taxable years 1991, 1992, and 1993, the taxpayer had

taxable income of $40,000. For each of these years, the taxpayer's Arizona

income tax was $1,828. For 1994, the taxpayer also had taxable income of

$40,000, with an Arizona income tax of $1,683.

Since the taxpayer will apply $3,000 of the capital loss carryover to 1995, the

taxpayer will compute the 1995 tax, as follows:

Tax (using 1995 tax table X) on $47,000

($50,000 less $3,000 1990 capital loss carryover) $ 1,749

Therefore, the taxpayer enters $1,749 on his 1995 Arizona income tax return

on the line for computing the 1995 tax.

Under A.R.S. § 43-1029, this taxpayer computes the decrease in tax for

1990, 1991, 1992, 1993, and 1994, as follows:

Tax paid in 1990 on $65,000

$ 3,328

Tax payable in 1990 on $2,000

($15,000 ordinary income, less

$3,000 capital loss, less

$10,000 personal exemption and

standard deduction)

76

3,252

Tax paid in 1991 on $40,000

$ 1,828

Tax payable in 1991 on $37,000

1,670

158

Tax paid in 1992 on $40,000

$ 1,828

Tax payable in 1992 on $37,000

1,670

158

Tax paid in 1993 on $40,000

$ 1,828

Tax payable in 1993 on $37,000

1,670

158

Tax paid in 1994 on $40,000

$ 1,683

Tax payable in 1994 on $37,000

1,531

152

Decrease in prior years' tax

$ 3,878









Page 7


ARIZONA INDIVIDUAL INCOME TAX PROCEDURE

ITP 95-1

Page 7

The $3,878 is treated as having been paid on the last day prescribed by law

for the payment of the tax for 1995 and is shown as a tax payment on the

1995 tax return. The taxpayer writes "A.R.S. § 43-1029 - $3,878" next to the

space on the 1995 Arizona individual income tax return on which the

taxpayer enters the total of his 1995 tax payments (i.e., Arizona withholding,

estimated tax payments, and extension payments). The taxpayer includes

the $3,878 in the total entered on that line. Therefore, the excess of $2,129

($3,878 - $1,749) may be refunded to the taxpayer.

The taxpayer also attaches a schedule explaining the amounts restored and the

computation of the prior years' tax reduction to his 1995 tax return.

XXXXX XXXXX, Director

Date

Explanatory Notice

The purpose of a tax procedure is to provide procedural guidance to the general public and

to department personnel. A tax procedure is a written statement issued by the department

to assist in the implementation of tax laws, administrative rules, and tax rulings by

delineating procedures to be followed in order to achieve compliance with the law.

Relevant statute, case law, or administrative rules, as well as a subsequent

procedure, may modify or negate any or all of the provisions of any tax procedure.

See GTP 92-1 for more detailed information regarding documents issued by the

Department of Revenue
NPVAdvisor :

If you have further questions, let me know

NPVAdvisor :

Lane

Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 12,845
Experience: Law Degree, specialization in Tax Law and Corporate Law, CFP and MBA, Providing Financial & Tax advice since 1986
Verified
Lane and 87 other Tax Specialists are ready to help you
Ask your own question now


Hello Michael,

... just checking back in, as I never saw you come into the chat.

Sorry for the data dump, but I wanted to give you everything you need to make an informed decision.

BotXXXXX XXXXXne? spending the amount of time you say you will, will make it very easy for Arizona o tax you as a resident, meaning that your income will be taxed, regardless of where it is derived.

Your best case is to argue that your time spent in AZ is temporary and transitory.

You MAY best be served by getting a private letter ruling on your situation from the Arizona Dept of Revenue.



Lane

Ask Your Own Tax Question


Thanks for the feedback Michael.

Let me know if I can help further.

Lane
Ask Your Own Tax Question
Ask Lane Your Own Question
Lane
Lane
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Category: Tax
Satisfied Customers: 12,845
12,845 Satisfied Customers
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