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Wayne L. Johnson: Where Are You From?
Wayne L. Johnson: Where Are You From?


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If a military member wants to become a legal resident of the state they are physically present in due to PCS orders, they may do so by saying to themself that, for the foreseeable future, he or she desires to make that state their legal residence for the rest of their life. Thus, you must have both physical presence AND the intent at the same time in order to make this change. You must also actually be living there for more than just a few weeks. Granted, like marriage, people sometimes later change their mind. If one decides to change their legal residence, one would do certain things to reflect this change to the rest of the world. This includes registering to vote there, changing on your Leave and Earnings Statement (LES) the state of legal residence, registering your car and getting your drivers license changed to that state, and filing any applicable state income tax returns each year.

Some states, such as Florida, have a written affidavit one can file at the local courthouse that attests to a person becoming a legal resident of that state. If one does that, get a few certified copies from the court clerk of the newly filed affidavit and send one copy to your old home state with your income tax return for that year. That way they will know why you have quit filing with them.

What gets confusing is when we do certain things with our state of legal residence and others with the state in which we are currently residing (the host state) due to military orders. DEFINITE INDICATORS of state of legal residence are where one votes and where one files their state income tax returns as to one's military pay if the home state has a tax. Some states with income taxes do not impose income taxes on the military pay of their legal residents stationed out of state. If a military person has a part time job or their nonmilitary spouse has a job, they must also file a local host state income tax return as to that income as well. Under the Act, the host state you are stationed in cannot tax your military income if it is not your home state.

MAYBE INDICATORS of your state of legal residence are your driver's license and vehicle registrations. I say maybe because a person in the military may keep them in either the host state they are currently residing in pursuant to orders or their state of legal residence. Some like the host state since renewals are easier and sometimes cheaper to do. A frequent cost savings for registering one's cars in the host state one is under orders to is that nonresident military personnel are not subject to any host state or county annual personal property (or ad valorum) taxes on the cars pursuant to the Act. Some people prefer their home state of legal residence since they do not have to change their license or registration every time they are transferred.

The danger is a person who keeps the plates or license of the host state they had been residing in after they transfer. Doing so could be used by the host state to argue you now owe them income taxes since keeping your license with them after you left the state shows that you are now a legal resident of that state. It could also lead to a traffic citation and fine. Remember, your registration and license can only be from your home state or where you are currently stationed/residing pursuant to military orders.

Two areas of great confusion are whether your home state requires you to file a state income tax return and does your driver's license expire if you keep it with your home state. On the former, check with the nearest military legal assistance office since the states with income taxes vary widely. Even if a return is not required, it is frequently a good idea to file a return and have a paperwork trail reaffirming your state of legal residence/home state.

As to the state drivers licenses, the following states give some form of a break to their legal residents who are in the military: AZ, AR, CA, CO, CT, DE, DC, HI, ID, IL, IA, MO, MT, NE, NY, LA, ME, MD, MA, MI, MN, ND, OH, OK, PA, RI, SC, SD, TN, TX, UT, VT, VA, WA, and WY. The "benefits" vary widely but most of the listed states either give you a discount on renewal or make it so your license does not expire until 30 to 180 days after getting off active duty. Depending on the state some will actually put on the license wording that says the license expires a certain number of days after discharge from the military. Some states do not do this so you end up driving around with a license that looks like it is expired.

One common limitation is that the benefit only usually applies so long as you continue to be assigned outside your home state. Once you return, even if you are still on active duty, you have to renew and pay for your license like everyone else. 

The bottom line here is DO NOT ASSUME your state of legal residence drivers license is indefinite, get the facts for your particular situation confirmed in some form of writing. It is very embarrassing to learn after you have a traffic accident that your license is expired, especially if you were driving a government vehicle at the time. Any legal assistance office can tell you what your home state's law is. They can give you a copy of what the law is for your state, which I recommend you, can keep in the car.

Even if you do everything right, you will sometimes still have a "problem." Like the petty officer in my office that got ticketed in Alabama while she was stationed in Pensacola because her Ohio driver's license "on its face" had expired. The cop did not care that she was in the military and he did not have a copy of the Ohio code. Fortunately the Alabama judge was impressed with an affidavit from the Ohio Attorney General's office attesting that under Ohio law her license did not expire since she was a legal resident on active duty outside of Ohio. Her trial lasted less than a minute before her case was dismissed.

Commander Johnson is a retired Navy Judge Advocate. He can be emailed at wayneljohnson@hotmail.com.

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2005 All opinions expressed in this article are the author's and do not necessarily reflect those of the Department of the Navy, the Department of Defense, the U.S. Government, or Military.com. Military title shown for purposes of identification only.

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