Residency status temporarily working in Virginia

[ckuntzman200]

I am currently living in Virginia. I will be starting a paid fellowship in Virginia later this month. The fellowship has a clear end date in June. I did the math and I will not be in Virginia for over 183 days of 2023 or 2024. After the fellowship ends, I intend to return to Michigan, which is the state I've been a resident of for most of this year.

I am currently confused as to what my Virginia residency status will be for this year. My understanding of Virginia tax laws was that I wouldn't become a resident if I wasn't in the state for over 183 days of the taxable year and if the move was never permanent, especially since I will be returning to the same address I was living at before the fellowship afterward, but somebody told me that I am considered a resident if I'm employed and don't intend to leave Virginia within 60 days. After reading the Virginia W-4 forms I am still confused. Can somebody please clarify what Virginia's residency rules are and if I should plan on filing as a nonresident or part-year resident for this year? 

[rjs]

See the sections on Residency Status in the following Virginia income tax instructions. I don't see anything about not intending to leave Virginia within 60 days. "Somebody told me" is often not a reliable source of information about income tax rules.

Instructions for Form 760
Pages 6 - 7

Instructions for Form 763
Pages 6 - 7

[TomD8]

Here's a more detailed link on Virginia's tax residency rules:  

https://www.tax.virginia.gov/residency-status#:~:text=Resident%20%2D%2D%20A%20person%20who,resident%....

[Opus 17 · Accepted solution]

You have one domicile. Your domicile is your real and permanent home. There are a number of factors that determine where your domicile is, and without discussing all of them, one of the factors is that you intend to return after a temporary absence. You can maintain your domicile in one state and be temporarily away for an indefinite period of time as long as you maintain that permanent residence and your intention to return.

You are generally required to file a resident tax return in the state where you maintain your domicile, that reports and pays income tax on all your worldwide income.  Your home state should give you a credit against taxes paid in another state, which reduces the impact of double taxation.

If you temporarily live and work in another state, you are generally a non-resident of that state, and you would file a non-resident tax return that only reports income earned from or sourced to that state. 

Virginia is one of several states that includes a definition of statutory resident. This is someone who maintains an abode in Virginia for more than 183 days, even if their permanent home or domicile is not in Virginia.  The definition of abode can vary from state to state, but it generally means that you live in a house, an apartment, or other permanent structure, that has all the characteristics of a home (bathroom, bedroom, kitchen, etc.).  Abode does not usually include hotels or camping.  If you are a statutory resident of Virginia, you are required to file as a Virginia resident. This makes you a resident of two states (rather than a non-resident), and it complicates a person's state income tax situation.

If you are not living in Virginia more than 183 days of each calendar year, or if you are staying in a hotel during your temporary stay, even if it is longer than 183 days, then you are not a statutory resident, and you would file as a non-resident.

From the VA instructions:

Resident -- A person who lives in Virginia, or maintains a place of abode here, for more than 183 days during the year, or who is a legal (domiciliary) resident of the Commonwealth, is considered a Virginia resident for income tax purposes.

Here is the actual law,

https://law.lis.virginia.gov/admincode/title23/agency10/chapter110/section30/