Virginia Law

A. Generally. Every individual who is required to file a Virginia income tax return as set forth in subsection B below must file such return: (1) on or before May 1 of the year following the close of the taxable year if the taxpayer uses a calendar year taxable year; or (2) on or before the 15th day of the fourth month following the close of the taxable year if the taxpayer uses a fiscal year or other noncalendar taxable year. For example, a taxpayer whose taxable year is from January 1, 1983, to December 31, 1983, must file a return for taxable year 1983 on or before May 1, 1984, while a taxpayer whose taxable year is from July 1, 1983 to June 30, 1984 must file a return for that taxable year on or before October 15, 1984. (See 23VAC10-20-30 for general filing requirements.)

B. Who must file a return. An individual income tax return must be filed on or before the date prescribed in subsection A above by the following persons:

1. Residents. Every resident individual who is required to file a federal income tax return for the taxable year must likewise file a Virginia return for such taxable year, unless such individual qualifies for the "$3,000 filing exception" described in 23VAC10-110-130. Every resident individual having Virginia taxable income for the taxable year as set forth in 23VAC10-110-140 through 23VAC10-110-144 must also file a Virginia return for such taxable year despite the fact that no federal return is required to be filed, unless subject to the filing exclusion as noted above. For example, a taxpayer may have FAGI below the amount for which a federal return is required to be filed, but Virginia adjusted gross income of $3,000 or more. In this instance, a Virginia return must be filed even though no federal return is required.

2. Nonresidents. Every nonresident having Virginia taxable income for a taxable year as set forth in 23VAC10-110-140 through 23VAC10-110-144 must file a Virginia return for such taxable year, unless the individual's taxable income computed as a resident meets the "$3,000 filing exception" described in 23VAC10-110-130.

C. Husband and wife.

1. Generally. Special rules as set forth below apply to the filing of a Virginia income tax return by a husband and wife. For purposes of this section, the term "husband and wife" shall include married individuals not legally separated from their spouses under a decree of divorce or separate maintenance. Individuals separated under an interlocutory decree of divorce retain their status as husband and wife until such decree becomes final. In determining whether two individuals are husband and wife for income tax purposes, the determination of marital status for federal income tax filing purposes will similarly control the determination of filing status for state income tax purposes.

2. Husband and wife filing separate federal returns. If a husband and wife file separate federal income tax returns for the taxable year, they shall similarly file separate Virginia income tax returns or shall file separately on a combined return for such taxable year. Where separate returns are filed by husband and wife, their Virginia income tax liabilities shall be separate.

3. Husband and wife filing joint federal return.

a. Generally. If a husband and wife file a joint federal income tax return for the taxable year, they may elect to file a joint Virginia return or they may elect to file separate Virginia returns. The election relating to the form of filing the return for any taxable year may be changed by the husband and wife within three years from the due date of the returns for such taxable year.

b. Election to file joint return. Where a husband and wife elect to file a joint Virginia income tax return, their tax liabilities shall be joint and several. "Joint and several" tax liability means that each party to the return is individually liable for its contents and the entire tax liability arising therefrom and further entails "a joint or several obligation." Therefore, the tax liability may attach to one spouse individually or to both spouses jointly.

c. Election to file separate returns. When a husband and wife elect to file separate Virginia income tax returns their Virginia tax liabilities shall be separate. Where a husband and wife elect to file separately on a combined return (commonly referred to as "filing status 4"), their liabilities shall be joint and several. Consequently, in the case of separate filing on a combined return, (i) if the total estimated tax and withholding tax payments by either spouse exceeds the tax for which that spouse is separately liable, the excess may be credited to the other spouse to offset his separate liability if his estimated tax and withholding tax payments are not sufficient to satisfy his liability; and (ii) if the total estimated tax and withholding tax payments by both spouses exceeds the total of their separate tax liabilities, the refund may be made payable to both spouses.

The following examples illustrate the operation of this concept:

Example 1: Husband (H) and Wife (W) file separately on a combined Virginia income tax return for taxable year 1983. H had $1,000 in tax withheld and has a tax liability of $700. W had $500 withheld and has a liability of $750. Under the provisions of (c)(i), the excess tax payments by H of $300 may be used to offset the $250 liability of W. The refund of $50 may be made payable to H and W.

Example 2: H and W file separately on a combined Virginia income tax return for taxable year 1983. Using the facts given in Example 1, the tax payments made by both spouses equal $1,500 while their total liability, computed separately, equals $1,450. Under the provisions of (c)(ii), the refund of the excess payment of $50 may be made payable to H and W.

4. Nonresident spouse. Where one spouse is a resident of Virginia and the other is a nonresident for the taxable year, they may elect to file separate returns or they may elect to file a joint return. If they elect to file separate returns, each spouse shall file the appropriate separate Virginia return and their liabilities shall be separate. If husband and wife elect to file a joint return, they may do so only if they agree to determine their Virginia tax liability as if both were residents. If a joint return is filed, the liability of the spouses shall be joint and several.

D. Decedents. The income tax return for any individual who is deceased during the taxable year or prior to the due date for the filing of the return for a taxable year must be made by the individual's executor, administrator, or other person charged with such individual's property. The person required to file the decedent's return may elect to file a separate return for the decedent or may file a joint return with the surviving spouse. Generally, any joint return for a decedent and surviving spouse must be made by the surviving spouse and the decedent's executor or administrator. However, the surviving spouse alone may file a joint return for himself and the decedent if such a joint return is permitted for federal income tax purposes, and subject to the limitations thereof, under the provisions of Treasury Regulation 1.6013-1.

E. Disabled individuals. No person shall be relieved of the requirement for filing an income tax return solely because he is a minor or disabled. The tax return for any such person who is unable to file a return shall be made by his guardian, committee, trustee, fiduciary or other person charged with the care of his person or property or by his duly authorized agent. A spouse may execute a return on behalf of a disabled spouse.

F. Dependents. No person is relieved of the liability for filing a Virginia income tax return solely because he may be claimed as a dependent on another's return. A dependent child may be subject to tax on his earnings even if a parent has a right to the earnings and may actually have received the money. In this instance, the child's income is not included on the parent's return.

G. Additional information.

1. Generally. Every individual required to file a return for the taxable year must complete the return and provide the information and/or documentation set forth in subdivisions a through e below.

a. Every individual must list his social security number on the return. In the case of a husband and wife filing, whether jointly or separately, both spouses must list their social security numbers.

b. Every individual who claims a credit against his Virginia tax liability for Virginia income tax withheld by his employer must attach to the return wage and tax statements for the taxable year.

c. Every individual must sign his return. In the case of a husband and wife filing jointly or filing separately on a combined return, both spouses must sign the return.

d. The department may require that any taxpayer submit a copy of any federal income tax form or schedule which is required for verification of the computation of Virginia tax liability.

e. Any individual who claims a credit for tax paid to another state must attach to his Virginia income tax return a copy of the return(s) filed with the state(s) for which the credit is claimed.

2. Failure to file complete return. Any taxpayer who files a return without complying with the requirements set forth in subdivisions a through e above may be subject to the penalties set forth in 23VAC10-110-300. If an incomplete return is filed and cannot be processed, such return will be returned to the taxpayer.