Notice to Employers
Employers are not exempt from withholding tax liability for failing to withhold the proper Massachusetts tax on a military spouse unless they have a properly completed Massachusetts Form M-4-MS and satisfy the additional requirements set forth below.
Requirements of Employer
The employee must show the employer an original of the employee’s current military spouse ID and provide a clear photocopy. The employer must ensure that the ID denotes the employee as a current military spouse. These IDs are reissued every four years; accordingly, the employer may not accept a military ID that is dated more than four years before the date on which it is given to the employer. In addition to a copy of the military spouse ID, the employee must provide to the employer copies of the following:
- Department of Defense Form 2058, State of Legal Residence Certificate of servicemember;
- Most recent LES, Leave and Earnings Statement, of servicemember; and
- Servicemember’s current military orders assigning such service - member to a post of duty in or near Massachusetts.
The employer must keep the Form M-4-MS with the employee’s personnel records. If the employer believes the employee has improperly claimed the Nonresident Military Spouse Residency Withholding Exemption, the employer must contact the Department of Revenue.
Note: The Form M-4-MS must be validated on an annual basis. The spouse must show continued eligibility for the exemption. Scenarios that will cause the spouse to no longer be eligible include:
- Servicemember leaves the service;
- Voluntary physical separation due to duty changes. The service - member’s orders move him or her to a location outside Massachusetts where the spouse is allowed to join him or her but chooses not to; or
- Spouse commits an action that clearly establishes Massachusetts as his or her state of domicile.
In order to claim domicile in a state other than the state in which you currently reside you must have proof that you meet one or more of the criteria listed below. If you previously were not a domi ciliary of another state you cannot claim that state as your domicile merely by making an election.
Domicile is a place where a person has established permanent residence with an intention to dwell in that place permanently and to return to it after absence. An individual has only one state of domi cile at any time and loses his or her current domicile only when he or she establishes a new domicile. The domicile is created based on performing one or more of the following actions.
Criteria Used to Determine State of Domicile
Property, ownership and residence. Homestead status; the location of permanent home; mailing address; amount of time spent in a state.
Financial data. Location of bank accounts; where taxpayer qualifies for unemployment benefits; state where prior resident tax returns were filed; state where business is conducted; state where wages are earned.
Licenses and registrations. Where taxpayer is registered to vote; state driver’s license; state where vehicles are registered; state where professional licenses are maintained.
Affiliations. Location of fraternal, social or athletic memberships; union membership location; place of worship.
Family and dependents. Place of family ties for employee, service-member spouse and dependents.
Single Domicile Factor Not Sufficient
No single factor determines a person’s state of domicile; all factors must be evaluated together.
A person’s permanent residence, once established, continues as their state of domicile until they take steps to establish a new domi cile in another state.