Domicile, Legal Residence and Home of Record
As a member of the armed forces, how often are you asked, "Where are you from?" or "What is your home of record? or
"What is your state of legal residence?" Often you will hear a service member on active duty give different answer to all
three questions.
Here is an example. A soldier who was born and raised in Cuero, Texas enters the Army while attending the University of
New Mexico in Albuquerque, and then is assigned to Fort Meade, Maryland. While living in Laurel, he buys a house,
registers to vote, gets a Maryland driver's license, registers and titles a new car. The state of Maryland appears on all the
accompanying documents. In this example, the soldier's state of origin (Texas) is different from his home of record
(New Mexico), which is different still from what appears to be the soldier's legal residence (Maryland).
Soldiers and their family members are often confused when asked to fill out documents that refer to "home of record,"
"home state," "domicile" and "legal residence." The reason is that these terms are frequently used interchangeably
within the military, by agency employees, and on many government forms. The fact is that these terms have different
legal meanings as defined below.
People generally use “ home state ” to mean their state of origin, their “native state,” the state where they “are from.”
This state has no legal significance.
" Home of Record " is a term used by the military for purposes of indicating the place recorded as the home of the
individual when commissioned, appointed, enlisted, inducted or ordered into a tour of active duty. The "HOR" remains
the same for the uninterrupted period of active duty. Once designated, the HOR is difficult to change for the benefit of
the soldier. At the time of discharge from the service, the military department will use your home of record to determine
your maximum travel and transportation allowances. You will not be paid travel and transportation expenses to a point
beyond the distance from the place assigned (at the time of separation) to your HOR.
" Legal residence " refers to a person's permanent domicile, as distinguished from a temporary residence. “Domicile”
is defined as that place where a person has his or her fixed, permanent place of abode, to which the person intends to
return despite temporary residences elsewhere or temporary absences. Once established, a person's legal residence,
or domicile, remains the same even when the person enters the armed forces and lives in another state pursuant to
military orders. Because of the protections provided under the Soldiers' and Sailors' Act of 1943, a service member's
legal residence does not change until the member acts to establish a new residence in the state in which assigned.
Therefore, if a member of the armed forces never acts to change his or her legal residence (examples are provided
below), the member's Home of Record will be the same as the member's state of domicile.
One way of understanding this concept is to realize that acquiring a legal residence, or domicile, is like becoming a
citizen of a particular state. As a "citizen"—that is, a resident or domiciliary of a state—a person may enjoy benefits
afforded only to domiciliaries of that particular state, such as the right to receive in-state tuition rates to colleges and
universities. The state of domicile may force certain burdens on its residents as well, such as the burden to pay income
and personal property taxes . Acquiring a legal residence is important for another reason. Legal residents are also
subject to the state's jurisdiction on legal matters. For instance, a court in a person's state of domicile has the authority
to enforce a judgment filed against a person in a state where the person is not domiciled.
Income tax requirements for service members vary from state to state. Many states do not impose income taxes on its
residents. Some states do not impose income taxes on its residents serving in the armed forces at installations located
in other states. Other states, such as Maryland, still require its residents serving on active duty to pay income tax
regardless of where the resident is stationed. The manner in which each state treats its military residents should be
found at the Tax Assistance Office on Base. Virginia's policy can be found at
www.tax.state.va.us/site.cfm?alias=ResidencyStatus#MILITARY
it
states in part:
“Members of the armed forces on active duty are taxed only in their legal states of residence. If you are a member of
the armed forces, but you are not a Virginia resident, you are not subject to Virginia income tax on your active duty
military pay, even though you are stationed in Virginia. You are liable to pay Virginia income tax as a nonresident on
income you earn from any business, trade, profession or occupation in Virginia. To report this income, file Form 763.
The tax exemption provided for members of the armed forces does not apply to spouses and other family members.
If you are a nonresident and your spouse is a resident of Virginia, you may not file a joint Virginia return, even though
you may have filed a joint federal return. Spouses of military personnel are subject to the same residency and filing
requirements as all other individuals who are not members of the armed forces. (See the information under
VIRGINIA RESIDENTS , PART-YEAR RESIDENTS and NONRESIDENTS .)
For more information useful to members of the military, www.tax.state.va.us/site.cfm?alias=MilitaryTaxTips ”
In addition to the authority to impose income tax on its residents, states may impose income tax on non-residents who
earn income from a source located within its borders. However, the Soldiers' and Sailors' Civil Relief Act prevents states
from imposing income tax on the military income of non-resident service members residing in the state simply as a result
of military orders. Merely living in a state pursuant to military orders does not make the service member a legal resident.
However, as explained below, a state may conclude a military member is a legal resident based on certain actions that
indicate the member's intent to make this state his or her legal residence. For example, in one reported case New Jersey
considered purchasing a home was sufficient to prove a service member's intent to move his residence from Florida to
New Jersey. As a consequence, New Jersey imposed its income tax requirements on the service member. How does
anyone establish a legal residence or domicile? The law requires two steps: first, the person's physical presence in the
state (flying over the state sipping tomato juice on a American Airlines flight will not suffice, but visiting in-laws for the
first time after getting married will); and secondly, the person's desire (or intent) to be a permanent "citizen" of that state.
Look again at the definition above. For members of the armed forces serving on active duty, this second step includes the
intent to return to a state after being discharged from active duty. Understanding this two-pronged legal test is easy.
The hard part is proving your intent. How does anyone prove a fixed intent to remain in or return to a particular state?
First, it is important to understand that there is no one particular form or super-legal document to execute or a special
ceremony to attend. Rather, to establish intent government agencies (and college financial aid departments) will look
to see what a person has done to demonstrate this intent. NVCC policy, which governs domicile or legal residence, can
be found in our must current catalog or www.nvcc.edu/catalog/cat2003/admin/finance.htm it gives some examples:
• Residence during the past year prior to the first official day of classes
• State to which income taxes are filed or paid—official income tax return for the state
• Driver's license
• Motor vehicle registration
• Employment—W-2 Form—Wage and Tax Statement
• Property ownership
• Sources of financial support—Marriage Certificate
• Other social or economic ties with Virginia and other states
An active duty military service member may qualify for a waiver of the one-year residency requirement by voluntarily
electing to establish domicile in Virginia. The one-year residency requirement will be waived if all other conditions for
establishing domicile are met, including, but not limited to, Virginia resident income taxes on all income (Leave/Earning
Statement showing Virginia tax withheld), Virginia State of Legal Residence Certificate (DD 2058), Virginia driver's license,
and Virginia vehicle registration. Copies of these documents must be provided by the student to claim Eligibility for this
waiver prior to the beginning of the semester/term for which in-state charges are requested.
The spouse of an active duty military person may qualify independently for in-state tuition as any other student by
establishing domicile in Virginia for one year. Alternatively, the spouse may qualify for in-state tuition charges without
establishing domicile by demonstrating either of the following special circumstances:
a. Dependency. The spouse may show dependence on the service member who is domiciled in Virginia or who has
established Eligibility for the one-year waiver. Dependent status is defined as substantial financial support (over 50%).
b. Working in Virginia. The spouse must have resided in Virginia, been employed full time (earned at least $10,300),
and paid personal incometax to Virginia for one (1) year immediately prior to the first official day of classes.
The spouse may show dependence on the service member who is domiciled in Virginia or who has established Eligibility
for the one-year waiver. Dependent status is defined as substantial financial support (over 50%). Children in military
families may qualify by demonstrating dependency on n active duty military parent domiciled in Virginia, or by demonstrating
dependency on the non-military parent who has resided in Virginia, been employed full time (earned at least $10,300), and
paid personal income tax to Virginia for one (1) year immediately prior to the first official day of classes. The child must be
claimed as a dependent on the Virginia income tax return.
In summary, a service member's home of record describes the state where the member was living when he or she entered
the military. A service member's state of legal residence is determined by a physical presence and the intent to make that
state his or her permanent home. Intent is demonstrated by many actions, chief of which include paying income taxes,
registering to vote, and obtaining a driver's license. To withstand a challenge, service members should keep as many of the
above “eggs” in one basket as practical despite the fact doing so is often inconvenient.
Note : The majority of this document minus parts that reference the State of Virginia and NVCC was found in a document titled “Domicile, Legal Residence
and Home of Record ” written by Brett C. Conyers Legal Assistance Attorney, which was found at www.detrick.army.mil/services/tax/homeofrecord.pdf