Current through Register Vol. 41, No. 3, September 23, 2024
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.
Statutory Authority
§§ 58.1-203 and 58.1-341 of the Code of Virginia.
