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Domicile, Legal Residence and Home of Record |
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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 http://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 .) 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 taxrequirements 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 http://www.nvcc.edu/catalog/cat2003/admin/finance.htm it gives some examples:
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:
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 http://www.detrick.army.mil/services/tax/homeofrecord.pdf |
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