Response by COL Mark Voichoski made Jul 13 at 2020 5:38 PM

COL Mark Voichoski — Mon, 13 Jul 2020 17:38:53 -0400

As an auditor with the DoD, I applaud your spouse for wanting to do the right (legal & ethical) thing! Your spouse can use your state of residence (Florida) for income tax purposes as a result of a 2018 change to the Servicemembers’ Civil Relief Act. See the following Law Reviews 19019, 19077, and 20011 from the http://www.roa.org website for the details.

LAW REVIEW 19019
February 2019
New SCRA Amendment Changes the Treatment of Military Spouses
for State Income Tax Purposes
By Captain Samuel F. Wright, JAGC, USN (Ret.)2
Update on Sam Wright
4.5—SCRA protection against state and local tax authorities
On 12/31/2018, President Trump signed into law the Veterans Benefits and Transition Act of 2018, Public Law 115-407. Section 302 of this new Act makes a significant change in the Servicemembers Civil Relief Act (SCRA)3 regarding the treatment of the spouses of active duty members of the uniformed services4 for state income tax purposes.
1 I invite the reader’s attention to http://www.roa.org/lawcenter. You will find more than 1700 “Law Review” articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the Uniformed Services Former Spouse Protection Act (USFSPA), and other laws that are especially pertinent to those who serve our country in uniform. You will also find a detailed Subject Index, to facilitate finding articles about very specific topics. The Reserve Officers Association (ROA) initiated this column in 1997. I am the author of more than 1500 of the articles.
2 BA 1973 Northwestern University, JD (law degree) 1976 University of Houston, LLM (advanced law degree) 1980 Georgetown University. I served in the Navy and Navy Reserve as a Judge Advocate General’s Corps officer and retired in 2007. I am a life member of ROA. For 42 years, I have worked with volunteers around the country to reform absentee voting laws and procedures to facilitate the enfranchisement of the brave young men and women who serve our country in uniform. I have also dealt with the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans’ Reemployment Rights Act (VRRA—the 1940 version of the federal reemployment statute) for 36 years. I developed the interest and expertise in this law during the decade (1982-92) that I worked for the United States Department of Labor (DOL) as an attorney. Together with one other DOL attorney (Susan M. Webman), I largely drafted the proposed VRRA rewrite that President George H.W. Bush presented to Congress, as his proposal, in February 1991. On 10/13/1994, President Bill Clinton signed into law USERRA, Public Law 103-353, 108 Stat. 3162. The version of USERRA that President Clinton signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is codified in title 38 of the United States Code at sections 4301 through 4335 (38 U.S.C. 4301-35). I have also dealt with the VRRA and USERRA as a judge advocate in the Navy and Navy Reserve, as an attorney for the Department of Defense (DOD) organization called Employer Support of the Guard and Reserve (ESGR), as an attorney for the United States Office of Special Counsel (OSC), as an attorney in private practice, and as the Director of the Service Members Law Center (SMLC), as a full-time employee of ROA, for six years (2009-15). Please see Law Review 15052 (June 2015), concerning the accomplishments of the SMLC. My paid employment with ROA ended 5/31/2015, but I have continued the work of the SMLC as a volunteer. You can reach me by e-mail at [login to see] .
3 On 12/19/2003, President George W. Bush signed the SCRA into law as a long-overdue update and rewrite of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), which was originally enacted in 1917. Please see Law Review 116 (March 2004), by Colonel Mark E. Sullivan, USA (Ret.).
4 For SCRA purposes, the uniformed services are the Army, Navy, Marine Corps, Air Force, and Coast Guard, as well as the commissioned corps of the Public Health Service and the commissioned corps of the National Oceanic & Atmospheric Administration.
Section 302 of the 2018 Act amended section 4001(a) of title 50 of the United States Code. Prior to the recent amendment, section 4001(a) read as follows:
(a) Residence or domicile.
(1) In general. A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders.
(2) Spouses. A spouse of a servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the spouse by reason of being absent or present in any tax jurisdiction of the United States solely to be with the servicemember in compliance with the servicemember's military orders if the residence or domicile, as the case may be, is the same for the servicemember and the spouse.5
The 2018 Act amended section 4001(a) to read as follows:
(a) Residence or domicile.
(1) In general. A servicemember shall neither lose nor acquire a residence or domicile for purposes of taxation with respect to the person, personal property, or income of the servicemember by reason of being absent or present in any tax jurisdiction of the United States solely in compliance with military orders.
(2) Spouses.
(A) A spouse
(B) Election—For any taxable year of the marriage, the spouse of a servicemember may elect to use the same residence for purposes of taxation as the servicemember regardless of the date on which the marriage of the spouse and the servicemember occurred.
(b) Applicability—The amendments made by subsection (a) shall apply to any return of State or local income tax filed for any taxable year beginning with the taxable year that includes the date of enactment of this Act.6
5 50 U.S.C. 4001(a) (emphasis supplied).
6 50 U.S.C. 4001, as amended (emphasis supplied). Because President Trump signed the Veterans Benefits and Transition Act of 2018 on the last day of 2018, this change in the law applies to 2018 state income tax returns filed during the opening months of 2019. Do not expect your income tax preparer to be aware immediately of this very recent statutory amendment. I suggest that you provide the preparer a copy of this article.
To understand the change made by this very recent amendment, let us consider the hypothetical but realistic Colonel Joe Smith, USMC and his wife Mary Jones. Since they married in 2015, they have lived together in a condominium in Arlington, Virginia, but he is and has been a domiciliary of Texas for tax and voting purposes and she has been a domiciliary of Virginia. She has an excellent job in Washington, DC and makes more money than Joe. She pays Virginia state income tax on her salary. Joe is on active duty in the Marine Corps, serving at the Pentagon, and the SCRA exempts him from the obligation to pay Virginia state income tax on his military compensation. Joe does not pay state income tax because Texas is one of nine states that do not have a state income tax.7
In 1992, Joe graduated from high school in Houston. At the time he was living with his parents and younger siblings in the house where the family moved when Joe was in elementary school. Just days after his high school graduation, Joe reported to the United States Naval Academy in Annapolis, Maryland for plebe summer. He survived plebe summer and excelled at the Academy, and in 1996 he graduated and was commissioned a Second Lieutenant in the Marine Corps. He has remained on active duty continuously and is now a Colonel.
Joe has not slept in the Houston house since 1992, except for a few short visits home while at the Naval Academy. In 1999, Joe’s father died. His mother sold the house and moved to California. In 2012, the new owner sold the house to a developer, and the developer tore down the house and all the neighboring houses to make room for a new commercial development. Joe has no relatives living in Houston and he cannot receive mail at the former Houston address or any address in the county. Nonetheless, the former address is Joe’s domicile (legal residence) until he establishes a new domicile elsewhere or leaves active duty, whichever comes first.
Through the years, Joe has had many physical residences, near his duty stations within and outside our country, but he has maintained his domicile at the Houston address where he lived with his parents until he left in 1992 to report to the Naval Academy. Joe has not voted or registered to vote in any of the places where he has had physical residences. In each major election, he has voted by absentee ballot in Harris County, Texas, using as his “permanent home address” the Houston home address. Maintaining his domicile in Texas has saved Joe tens of thousands of dollars in state income tax over his long and distinguished military career.
In 2014, shortly after he was promoted from Lieutenant Colonel to Colonel, Joe was transferred from Camp Pendleton (in California) to the Pentagon (in Arlington, Virginia). Joe rented an apartment in Arlington, to commute to his duty station in the Pentagon. Joe met the love of his life, Mary, and they married in 2015. Together, they bought a condominium, where they live together as a married couple.
7 The other eight states are Alaska, Florida, Nevada, New Hampshire, South Dakota, Tennessee, Washington, and Wyoming.
Mary has spent her entire life in Northern Virginia and has never been to Texas. Marrying a Texan in 2015 did not make Mary a Texan. Until very recently, the SCRA did not protect Mary from the obligation to pay Virginia state income tax on her substantial salary. Although Joe and Mary have been living together in the same condominium, Joe has been domiciled in Texas and has been exempt from having to pay Virginia state income tax on his military compensation, while Mary has been domiciled in Virginia and has been required to pay Virginia state income tax on her salary.
The 2018 amendment is a big deal for people like Mary. Starting with her soon-to-be-filed 2018 income tax return, Mary can claim to be a Texan, although she has never set foot in the state, and she can be exempt from having to pay Virginia state income tax.
We should expect that Virginia and other affected states will challenge the constitutionality of this recent federal amendment. I predict that their challenge will be unsuccessful.8
8 See Dameron v. Brodhead, 345 U.S. 322 (1953). I discuss that case in detail in Law Review 09017 (April 2009).

LAW REVIEW 19077
September 2019
Domicile and Residence for Tax Purposes of the Spouse of
the Active Duty Service Member
By Captain Samuel F. Wright, JAGC, USN (Ret.)2
Update on Sam Wright
4.5—SCRA protection against state and local tax authorities
7.0—Military voting rights
Q: I am married to an active duty Marine Corps Colonel who is currently serving at the Pentagon.3 My circumstances are almost identical to the circumstances you addressed in Law Reviews 19019 and 19020 (February 2019).
I have lived in Virginia, mostly in Arlington, for my entire life. I am a lawyer and the managing partner of a major law firm in Washington, DC. My husband and I got married fairly recently, in 2015. We live together in the same Arlington condominium, but we are domiciled in different states, or at least we were until recently.
1 I invite the reader’s attention to http://www.roa.org/lawcenter. You will find more than 1800 “Law Review” articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the Uniformed Services Former Spouse Protection Act (USFSPA), and other laws that are especially pertinent to those who serve our country in uniform. You will also find a detailed Subject Index, to facilitate finding articles about very specific topics. The Reserve Officers Association (ROA) initiated this column in 1997. I am the author of more than 1600 of the articles.
2 BA 1973 Northwestern University, JD (law degree) 1976 University of Houston, LLM (advanced law degree) 1980 Georgetown University. I served in the Navy and Navy Reserve as a Judge Advocate General’s Corps officer and retired in 2007. I am a life member of ROA. For 43 years, I have worked with volunteers around the country to reform absentee voting laws and procedures to facilitate the enfranchisement of the brave young men and women who serve our country in uniform. I have also dealt with the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans’ Reemployment Rights Act (VRRA—the 1940 version of the federal reemployment statute) for 36 years. I developed the interest and expertise in this law during the decade (1982-92) that I worked for the United States Department of Labor (DOL) as an attorney. Together with one other DOL attorney (Susan M. Webman), I largely drafted the proposed VRRA rewrite that President George H.W. Bush presented to Congress, as his proposal, in February 1991. On 10/13/1994, President Bill Clinton signed into law USERRA, Public Law 103-353, 108 Stat. 3162. The version of USERRA that President Clinton signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is codified in title 38 of the United States Code at sections 4301 through 4335 (38 U.S.C. 4301-35). I have also dealt with the VRRA and USERRA as a judge advocate in the Navy and Navy Reserve, as an attorney for the Department of Defense (DOD) organization called Employer Support of the Guard and Reserve (ESGR), as an attorney for the United States Office of Special Counsel (OSC), as an attorney in private practice, and as the Director of the Service Members Law Center (SMLC), as a full-time employee of ROA, for six years (2009-15). Please see Law Review 15052 (June 2015), concerning the accomplishments of the SMLC. My paid employment with ROA ended 5/31/2015, but I have continued the work of the SMLC as a volunteer. You can reach me by e-mail at [login to see] .
3 The facts in this article are hypothetical but realistic.
My husband grew up in Houston and reported to the United States Naval Academy (Annapolis, MD) in June 1992. Four years later, in 1996, he graduated and was commissioned a Second Lieutenant. He has remained on active duty ever since. He has 23 years of service, not including his time as a Naval Academy Midshipman, so he can retire any time now, but he does not want to retire and still hopes to be promoted to the General officer ranks.
My husband has maintained his domicile in Houston, using the address where he lived with his parents and siblings from 1982, when his parents bought the house, until 1992, when he graduated from high school and left home to report to the Naval Academy for Plebe Summer. My husband has voted by absentee ballot in every major election since 1992, and he has used as his “permanent home address” the Houston home where he lived from age 8 to age 18.
My husband’s father died in 1999. His mother has remarried, and she sold the Houston house in 2003. She now lives in a retirement community in Florida. The house, along with other houses in the same neighborhood, was torn down in 2014, to make way for a new commercial development. But his childhood address is still his domicile, as you have described in Law Reviews 19019 and 19020 and other articles.
My husband has saved tens of thousands of dollars in state income tax by maintaining his domicile in Texas, which has no state income tax.4 He has never registered to vote or voted in any of the places where he has lived just because he needed to sleep in places that were within reasonable commuting distances of his Marine Corps assignments. Whenever he is asked for his “domicile” or his “permanent home address” he has always provided the address of the Houston home where he lived from age 8 to age 18.
My husband continues to claim that Texas (not Virginia) is his domicile and that a federal law called the Servicemembers Civil Relief Act (SCRA) exempts him from having to pay Virginia state income tax on his Marine Corps salary. I have had several conversations with my husband, in which that I have said that I wished that I could also be exempt from having to pay Virginia state income tax on my law firm compensation, which is substantially greater than my husband’s Marine Corps salary.
Then, in February 2019, I read with great interest your Law Reviews 19019 and 19020, about the changes in federal law made at the very end of 2018. Based on your article, I declined to file a Virginia state income tax return for 2018. Instead, I sent a detailed letter to the Virginia Department of Revenue (VDOR), and I sent them a copy of your articles. I told the VDOR that I have the right to elect to use the same “residence for purposes of taxation” that my husband uses, and that my husband is domiciled in Texas, which has no state income tax.
4 The nine states that do not tax salary or wage income are Alaska, Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Washington, and Wyoming.
As you predicted in Law Reviews 19019 and 19020, Virginia has threatened to sue me to collect Virginia state income tax on my 2018 earnings. They said that my claiming Texas as my residence for tax purposes is contrary to state law and will not be tolerated.
Please reiterate what you wrote in Law Reviews 19019 and 19020.
A: On 12/31/2018, President Trump signed into law the Veterans Benefits and Transition Act of 2018 (VBTA).5 Section 302(a) of the VBTA amends section 4001(a)(2)(B) of title 50 of the United States Code to read as follows: “For any taxable year of the marriage, the spouse of a servicemember [on active duty] may elect to use the same residence for purposes of taxation as the servicemember regardless of the date on which the marriage of the spouse and the servicemember occurred.6
Section 302(b) of the VBTA provides: “The amendments made by subsection (a) shall apply to any return of State or local income tax filed for any taxable year beginning with the taxable year that includes the date of enactment of this Act.”7 Since President Trump signed the VBTA on 12/31/2018, this amended provision applies to state income tax on your income during 2018 and in any subsequent year while you are still married to your husband and he is still on active duty.
In Law Reviews 19019 and 19020, I predicted that Virginia and other affected states would challenge the constitutionality of the recent amendment to the SCRA. I predict that their challenge will fail, based on a Supreme Court case that was decided when I was two years old.8
It does not matter that exempting you from having to pay Virginia state income tax is contrary to Virginia law. Under the Supremacy Clause of the United States Constitution, a federal statute like the SCRA trumps a conflicting state statute or even a state constitution. The Supremacy Clause provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall
5 Public Law 115-407, 132 Stat. 5368.
6 50 U.S.C. 4001(a)(2)(B) (emphasis supplied).
7 VBTA, section 302(b) (emphasis supplied).
8 Dameron v. Brodhead, 345 U.S. 322 (1953). I discuss Dameron in detail in Law Review 09017 (April 2009). The Supreme Court reversed the Supreme Court of Colorado and upheld the constitutionality of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) provision that forbids the states to tax the personal (moveable) property of active duty service members who are in the state only because their military duties require their presence there and who are not domiciled in the state. In 2003, Congress enacted the SCRA as a long-overdue update and rewrite of the SSCRA.
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.9
Q: My good friend is running for a seat in the lower house of the Virginia state legislature, and my husband and I have made significant financial contributions to her campaign. I want to vote for her, and I am a registered voter in Arlington, Virginia. But I have elected to be a resident of Texas (not Virginia) for state income tax purposes. Is it lawful for me to vote in Virginia in November 2019 and in subsequent elections?
A: In my opinion, yes, but because this federal provision is brand new there is, as of now, no case law to cite on this specific question.
As amended at the end of 2018, section 4001(a)(2)(B) of title 50 provides that you can elect to use the same residence for purposes of taxation as your husband. This section does not refer to your domicile and electing to use Texas as your residence for tax purposes does not affect your domicile in Virginia. You are still domiciled in Virginia, and you are eligible to vote for all offices, including nonfederal offices.
Q: My husband wants to register to vote in Virginia, so he can vote for our friend the legislative candidate. What do you think of that?
A: That is a terrible idea. If your husband registers to vote or votes in Virginia, he will lose his SCRA exemption from having to pay Virginia state income tax, and if he loses his you lose yours.10 For the active duty service member, his or her domicile is inextricably linked with his or her residence for tax purposes, and the 2018 amendment did not change that.
9 United States Constitution, Article VI, Clause 2. Yes, it is capitalized just that way, in the style of the late 18th Century. Virginia officials sometimes need to be reminded that General Ulysses S. Grant did not surrender to General Robert E. Lee at Appomattox Courthouse.
10 Comptroller of Treasury v. Lenderking, 268 Md. 613, 619, 303 A.2d 402, 405 (1973). Please see Law Review 18092 (September 2018).

LAW REVIEW 20011
January 2020
Congress Tinkers yet again with the SCRA Concerning Domicile of the
Spouses of Active Duty Service Members
By Captain Samuel F. Wright, JAGC, USN (Ret.)2
4.5—SCRA protection against state and local tax authorities
6.0—Military service and tax laws
7.0—Military voting rights
New legislative development
On 12/20/2019, President Trump signed into law the National Defense Authorization Act (NDAA) for Fiscal Year 2020.3 Each year, Congress passes an NDAA, authorizing the activities of the Department of Defense (DOD) and the services and the national defense activities of the Department of Energy.4 Each year, Congress uses the NDAA to amend provisions of many titles of the United States Code.
1 I invite the reader’s attention to http://www.roa.org/lawcenter. You will find more than 1900 “Law Review” articles about the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Servicemembers Civil Relief Act (SCRA), the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the Uniformed Services Former Spouse Protection Act (USFSPA), and other laws that are especially pertinent to those who serve our country in uniform. You will also find a detailed Subject Index, to facilitate finding articles about very specific topics. The Reserve Officers Association (ROA) initiated this column in 1997. I am the author of more than 1700 of the articles.
2 BA 1973 Northwestern University, JD (law degree) 1976 University of Houston, LLM (advanced law degree) 1980 Georgetown University. I served in the Navy and Navy Reserve as a Judge Advocate General’s Corps officer and retired in 2007. I am a life member of ROA. For 43 years, I have worked with volunteers around the country to reform absentee voting laws and procedures to facilitate the enfranchisement of the brave young men and women who serve our country in uniform. I have also dealt with the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans’ Reemployment Rights Act (VRRA—the 1940 version of the federal reemployment statute) for 36 years. I developed the interest and expertise in this law during the decade (1982-92) that I worked for the United States Department of Labor (DOL) as an attorney. Together with one other DOL attorney (Susan M. Webman), I largely drafted the proposed VRRA rewrite that President George H.W. Bush presented to Congress, as his proposal, in February 1991. On 10/13/1994, President Bill Clinton signed into law USERRA, Public Law 103-353, 108 Stat. 3162. The version of USERRA that President Clinton signed in 1994 was 85% the same as the Webman-Wright draft. USERRA is codified in title 38 of the United States Code at sections 4301 through 4335 (38 U.S.C. 4301-35). I have also dealt with the VRRA and USERRA as a judge advocate in the Navy and Navy Reserve, as an attorney for the Department of Defense (DOD) organization called Employer Support of the Guard and Reserve (ESGR), as an attorney for the United States Office of Special Counsel (OSC), as an attorney in private practice, and as the Director of the Service Members Law Center (SMLC), as a full-time employee of ROA, for six years (2009-15). Please see Law Review 15052 (June 2015), concerning the accomplishments of the SMLC. My paid employment with ROA ended 5/31/2015, but I have continued the work of the SMLC as a volunteer. You can reach me by e-mail at [login to see] .
3 Fiscal Year 2020 began on 10/1/2019, and it will end on 9/30/2020.
4 The Department of Energy is responsible for nuclear weapons and nuclear power for Navy submarines and aircraft carriers.
Section 1739 of NDAA 2020 amends the Servicemembers Civil Relief Act (SCRA)5 by adding a new section 707, as follows:
For the purpose of establishing the residency of a spouse of a servicemember for any purpose (including the registration of a business), the spouse of a servicemember may elect to use the same residence as the servicemember regardless of the date on which the marriage of the spouse and the servicemember occurred.
How this provision works
To understand how this provision works, let us consider a hypothetical but realistic scenario. Joe Smith was born in May 1971 in Miami, Florida. He lived in Miami, with his parents and siblings, until he graduated from high school in May 1989. Within a month after he graduated, he reported to the United States Naval Academy (USNA) in Annapolis, Maryland for “plebe summer.” Four years later, in May 1993, he graduated and was commissioned a Second Lieutenant in the Marine Corps.
Joe has remained on active duty continuously and is now a full Colonel, stationed at the Pentagon in Arlington, Virginia. In each major election since May 1989, Joe has voted by absentee ballot in Miami, Florida. He uses as his “permanent home address” on each absentee ballot application form the address of the house in Miami where he lived with his parents and siblings for the first 18 years of his life. It does not matter that his father died in 1999 and his mother sold the house and now lives in California. Joe has never registered to vote or voted in any of the places where he has been stationed by the Marine Corps. His domicile remains at the address where he lived just before he reported to active duty in 1989.
In 2018, shortly after he transferred to the Pentagon, Joe met the love of his life, Mary Jones, and they married in 2019. Mary has lived in Arlington for her entire life, except when she was away for college and law school. She is not a Floridian, and she has never been to Florida. Mary is the Managing Partner of Dewey Cheatham & Howe (DCH), a major DC law firm. Her DCH compensation is an order of magnitude greater than Joe’s salary as a Colonel in the Marine Corps. After the marriage, Joe and Mary purchased a condominium in the Rosslyn section of Arlington, Virginia. They live in the condominium because it is an easy commute to Joe’s assignment at the Pentagon and the DCH office on K Street in the District of Columbia.
Under the new section 707 of the SCRA, Mary can “elect” to become a domiciliary of Florida, and she need not move to Florida to do so. Changing her domicile to Florida will save Mary tens of
5 As Colonel Mark E. Sullivan explained in Law Review 116 (March 2004), the SCRA was passed by Congress and signed into law by President George W. Bush in December 2003, as a long-overdue update and rewrite of the Soldiers’ and Sailors’ Civil Relief Act (SSCRA), which was originally enacted in 1917.
thousands of dollars of state income tax that she would otherwise be required to pay to Virginia, because Florida is one of nine states without a broad state income tax.6
States will challenge the constitutionality of this new provision.
I predict that Virginia and similarly situated states will be upset about losing the opportunity to tax the substantial non-military income of Mary Jones and others like her. I predict that Virginia will challenge the constitutionality of this new SCRA provision, but I also predict that Virginia will lose that challenge, based on a Supreme Court case that was decided when I was two years old:
The constitutionality of federal legislation exempting servicemen from the substantial burden of seriate taxation by the states in which they may be required to be present, by virtue of their service, cannot be doubted. Generally similar relief has been accorded to other types of federal operations or functions. And we [the Supreme Court] have upheld the validity of such enactments. … Nor do we see any distinction between those cases and this. … We have, in fact, generally recognized the especial burdens of required service with the armed forces in discussing the compensating benefits Congress provides. … Petitioner’s [Dameron’s] duties are directly related to an activity which the Constitution delegated to the National Government [national defense]. … Since this is so, congressional exercise of a “necessary and proper” supplementary power such as this statute must be upheld.7
In 2020, unlike in 1953, no one is required to perform military service. In 1973, almost two generations ago, Congress abolished the draft and established the All-Volunteer Military. But the fact that today’s service members were not drafted in no way detracts from the need for statutes like the SCRA and the Uniformed Services Employment and Reemployment Rights Act (USERRA). Quite the contrary—without these laws the services would not be able to recruit and retain the necessary quality and quantity of young men and women to defend our country. Yes, laws like the SCRA and USERRA put some burdens on third parties like state tax authorities, banks, landlords, employers, etc. Those burdens are tiny as compared to the much greater burdens (sometimes the ultimate sacrifice) voluntarily undertaken by those who enlist in our country’s armed forces.8
In 2020, much more than in 1953, most service members are married and have families. To persuade the service member to reenlist and serve for a full career of 20 years or more, on active duty or in a Reserve Component, it is necessary to persuade the spouse and the whole family, as
6 The other eight states are Alaska, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Washington, and Wyoming. See https://www.bing.com/search?q=states+with+no+income+tax&form=EDGSPH&mkt=en-us&httpsmsn=1&msnews=1&plvar=0&refig=84e6835fbcfb4d109aace46788a7c596&sp=1&ghc=.
7 Dameron v. Brodhead, 345 U.S. 322, 324-25 (1953). I discuss Dameron in detail in Law Review 09017 (April 2009). See also Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006). I discuss Rumsfeld in Law Review 06012 (2006).
8 Please see Law Review 17055 (June 2017).
well as the service member. Congress reasonably concluded that it was necessary to extend the SCRA protection of the service member from state income taxation of his or her military salary and benefits to include the spouses of active duty service members as well. I predict that the courts (including the Supreme Court, if the challenge gets that far) will uphold this extension as a necessary and proper exercise of Congress’ power to provide for the national defense.9
Congress has not repealed the common law rule that every human being has one and only one domicile, for all legal purposes.
Maryland’s high court has held: “Evidence that a person registered to vote or voted is admissible and ordinarily persuasive when the question of domicile is at issue.”10 This common-sense statement is universally accepted among the 50 states.
Mary Jones (the law firm partner who married Colonel Joe Smith) cannot have it both ways. She cannot become a Florida domiciliary (to avoid paying Virginia state income tax on her law firm compensation) while maintaining her domicile in Virginia for voting purposes. She will need to give up her Virginia voter registration and start voting by absentee ballot in Miami, Florida.11
Conclusion
For well over a decade, military spouses and organizations like the National Military Family Association12 have sought to expand the SCRA protection of the service member’s military income from state income taxation by a non-domicile state to include the non-military income of the spouse of the active duty service member.13 While I was originally ambivalent about this effort, I am pleased that the effort has finally succeeded. This change in the SCRA will benefit thousands of spouses of active duty service members, and it will help the services in their recruiting and retention efforts. While the constitutionality of this change will likely be challenged, I predict that the constitutionality will be upheld.
9 Article I, Section 8 of the United States Constitution provides for the powers of Congress, and sections 11-16 of that Section provide multiple powers related to war and national defense. Section 18 authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested in this Constitution in the Government of the United States, or in any Department or Officer thereof.” Yes, it is capitalized just that way, in the style of the late 18th Century.
10 Comptroller of the Treasury v. Lenderking, 268 Md. 613, 619, 303 A.2d 402, 405 (1973).
11 When she applies for an absentee ballot, using the Federal Post Card Application as a military spouse, she will need to use as her “permanent home address” the house in Miami where husband Joe lived with his parents and siblings for the first 18 years of his life, before he reported to the United States Naval Academy in 1989. It does not matter that Mary has never been to Florida, much less lived in that house.
12 See https://www.militaryfamily.org.
13 When an active duty service member is married to a person who is not on active duty, it is by no means always the case that the spouse who is not on active duty is the wife. I know several female service members who have civilian husbands.
Please join or support ROA
This article is one of 1900-plus “Law Review” articles available at http://www.roa.org/lawcenter. The Reserve Officers Association, now doing business as the Reserve Organization of America (ROA), initiated this column in 1997. New articles are added each month.
ROA is almost a century old—it was established in 1922 by a group of veterans of “The Great War,” as World War I was then known. One of those veterans was Captain Harry S. Truman. As President, in 1950, he signed our congressional charter. Under that charter, our mission is to advocate for the implementation of policies that provide for adequate national security. For many decades, we have argued that the Reserve Components, including the National Guard, are a cost-effective way to meet our nation’s defense needs.
Indeed, ROA is the only national military organization that exclusively supports America’s Reserve and National Guard.
Through these articles, and by other means, we have sought to educate service members, their spouses, and their attorneys about their legal rights and about how to exercise and enforce those rights. We provide information to service members, without regard to whether they are members of ROA or eligible to join, but please understand that ROA members, through their dues and contributions, pay the costs of providing this service and all the other great services that ROA provides.
If you are now serving or have ever served in any one of our nation’s seven uniformed services, you are eligible for membership in ROA, and a one-year membership only costs $20. Enlisted personnel as well as officers are eligible for full membership, and eligibility applies to those who are serving or have served in the Active Component, the National Guard, or the Reserve.
If you are eligible for ROA membership, please join. You can join on-line at http://www.roa.org or call ROA at [login to see] .
If you are not eligible to join, please contribute financially, to help us keep up and expand this effort on behalf of those who serve. Please mail us a contribution to:
Reserve Officers Association
1 Constitution Ave. NE
Washington, DC 20002

ROA

ROA continues to conduct the business of the association every day while still complying with federal and state guidelines.

Has anyone ever been audited when using the MSRRA?

Has anyone ever been audited when using the MSRRA?

Response by Maj Marty Hogan made Dec 13 at 2018 1:12 PM

Response by COL Mark Voichoski made Jul 13 at 2020 5:38 PM