TITLE 30

State Taxes

Income, Inheritance and Estate Taxes

CHAPTER 11. PERSONAL INCOME TAX

Subchapter VIII. Returns and Payments of Tax


An income tax return with respect to the tax imposed by this chapter shall be made by the following:

(1) Every resident individual who

a. Is required to file a federal income tax return for the taxable year, or

b. Is a single person and has for the taxable year adjusted gross income as modified by § 1106 of this title of more than $9,378, or

c. Is a married individual who is entitled to file a joint federal income tax return for the taxable year, and whose adjusted gross income for the taxable year as modified by § 1106 of this title, when combined with the adjusted gross income of the individual's spouse, is more than $15,449.

(2) Every nonresident individual who has income from sources in this State.

(3), (4) [Repealed.]

30 Del. C. 1953, § 1161; 57 Del. Laws, c. 737, § 1; 58 Del. Laws, c. 257, § 6; 64 Del. Laws, c. 330, §§ 2, 3; 65 Del. Laws, c. 147, §§ 2, 3; 65 Del. Laws, c. 204, §§ 5, 6; 66 Del. Laws, c. 95, § 2; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 347, § 5; 72 Del. Laws, 1st Sp. Sess., c. 247, § 1; 72 Del. Laws, c. 467, § 7.;

(a) If for any taxable year:

(1) The federal income tax liability of spouses, either both residents of this State or both nonresidents of this State, is determined on separate federal income tax returns, then their tax liabilities under this chapter for such taxable year shall be separately determined and they shall file separate returns;

(2) The federal income tax liability of spouses, either both residents of this State or both nonresidents of this State, is determined on a joint federal income tax return, then they may file either a joint return or separate returns under this chapter, whichever they elect;

(3) Neither spouse is required to file a federal income tax return and either or both are required to file a return under this chapter, then they may elect to file separate or joint returns, and, pursuant to such election, their tax liabilities under this chapter for such taxable year shall be either separately or jointly determined, as the case may be;

(4) Either spouse is a nonresident and the other a resident, then they shall file separate returns, on such forms as the State Tax Commissioner shall prescribe, and their tax liabilities under this chapter shall be separately determined, unless both elect to file a joint tax return in this State as if both were residents.

(b)(1) Whenever the federal income tax liability of a husband and wife is determined on a joint federal income tax return and they file separate Delaware income tax returns pursuant to this chapter, then the items of federal deduction shall be determined for purposes of §§ 1105 and 1109 of this title by reference to the amounts allowed on the husband and wife's joint federal return and not by reference to amounts that would have been allowed had they filed separate federal returns.

(2) In accordance with regulations issued in the sound discretion of the Director, paragraph (b)(1) of this section shall not apply to federal deductions enacted after January 1, 1998, which are intended to reduce or eliminate disparities in federal taxation between married and single persons.

30 Del. C. 1953, § 1162; 57 Del. Laws, c. 737, § 1; 66 Del. Laws, c. 377, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 347, § 6.;

An income tax return for:

(1) Any deceased individual shall be made and filed by an executor, administrator or other person charged with the care of the decedent's property. A joint or separate final return of a decedent shall be due when it would have been due if the decedent had not died;

(2) An individual who is unable to make a return by reason of minority, or other disability, shall be made and filed by a duly authorized agent, guardian, fiduciary or other person charged with the care of the individual's person or property, other than a receiver in possession of only a part of the individual's property;

(3) An estate or trust shall be made and filed by the fiduciary thereof;

(4) Two or more fiduciaries acting jointly, may be made by any 1 of them.

30 Del. C. 1953, § 1163; 57 Del. Laws, c. 737, § 1; 70 Del. Laws, c. 186, § 1.;

Repealed by 68 Del. Laws, c. 187, § 5, effective Aug. 9, 1991.;

If an individual changes status during the taxable year from resident to nonresident or from nonresident to resident, the individual shall file a return for that portion of the year during which the individual is a resident and the State Tax Commissioner may, by forms or instructions, require the individual to file a return for that portion of the year during which the individual is a nonresident.

30 Del. C. 1953, § 1165; 57 Del. Laws, c. 737, § 1; 70 Del. Laws, c. 186, § 1.;

Repealed by 68 Del. Laws, c. 82, § 8, effective July 1, 1991.;

If an individual for any taxable year is required to file returns both as a resident and/or as a nonresident under § 1165 of this title:

(1) Personal exemptions and the standard deduction shall be prorated between the 2 returns, to reflect the proportions of the taxable year during which the individual was a resident and a nonresident; and

(2) Notwithstanding the provisions of § 1166 of this title, the total of the taxes due thereon shall not be less than would be due if the total of the taxable incomes reported on the 2 returns were includable in 1 return.

30 Del. C. 1953, § 1167; 57 Del. Laws, c. 737, § 1.;

The income tax returns required by this chapter shall be filed on or before the thirtieth day of the fourth month following the close of the taxpayer's taxable year. A person required to make and file a return under this chapter shall, without assessment, notice or demand, pay any tax due thereon to the Department of Finance on or before the date fixed for filing such return. The Secretary of Finance shall prescribe the place for filing any return, declaration, statement or other document required pursuant to this chapter and for the payment of any tax.

30 Del. C. 1953, § 1168; 57 Del. Laws, c. 737, § 1; 58 Del. Laws, c. 358, § 1.;

(a) Every resident and nonresident individual or trust shall make a declaration of estimated tax for the taxable year in such form as the Director of Revenue may prescribe, if the estimated tax can reasonably be expected to exceed $400. For purposes of this section, the term "trust" shall mean any trust the fair market value of whose assets at the end of the tax year next preceding the tax year for which estimated taxes are otherwise required by this section equal or exceed $1,000,000.

(b) The term "estimated tax" means the amount which the individual or trust estimates to be the individual's or trust's income tax under this chapter for the taxable year, less the amount which the individual or trust estimates to be the sum of any credits allowable for tax withheld.

(c) If they are eligible to do so for federal tax purposes, spouses may make a joint declaration of estimated tax as if they were 1 taxpayer, in which case the liability with respect to the estimated tax shall be joint and several. If a joint declaration is made but spouses determine their taxes under the chapter separately, the estimated tax for such year may be treated as the estimated tax of either spouse, or may be divided between them, as they may elect.

(d) An individual or trust may amend a declaration as prescribed by the State Tax Commissioner.

30 Del. C. 1953, § 1169; 57 Del. Laws, c. 737, § 1; 64 Del. Laws, c. 153, § 1; 67 Del. Laws, c. 399, §§ 3-6; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 445, § 1.;

(a) The declaration and payment of estimated tax shall be filed or paid, as the case may be, on or before the dates prescribed by the laws of the United States for filing declarations and payment of estimated federal income tax, except that the State Tax Commissioner may establish other dates for filing declarations and payment of estimated tax.

(b) The application of this section to taxable years of less than 12 months shall be in accordance with rules prescribed by the State Tax Commissioner.

(c) Payment of the estimated income tax, or any installment thereof, shall be considered payment on account of the income tax imposed under the provisions of this chapter for the taxable year.

30 Del. C. 1953, § 1170; 57 Del. Laws, c. 737, § 1.;

(a) In the case of any individual who dies while in active service as a member of the armed forces of the United States, if such death occurred while serving in a combat zone (as determined under this section) or as a result of wounds, disease or injury incurred while so serving:

(1) Any tax imposed by this chapter shall not apply with respect to the taxable year in which falls the date of death, or with respect to any prior taxable year ending on or after the first day the individual so served in a combat zone after January 1, 1960; and

(2) Any tax under this chapter and under the corresponding provisions of prior revenue laws for taxable years preceding those specified in paragraph (a)(1) of this section which is unpaid at the date of death (including interest, additions to the tax and additional amounts) shall not be assessed, and if assessed the assessment shall be abated, and if collected shall be credited or refunded as an overpayment.

(b) Definitions.

(1) Service is performed in a combat zone only if performed on or after the date designated by the President by Executive Order as the date of the commencing of combatant activities in such zone and on or before the date designated by the President by Executive Order as the date of the termination of combatant activities in such zone.

(2) The term "combat zone" means any area which the President of the United States by Executive Order designates, for purposes of this section or corresponding provisions of prior income tax laws, as an area in which armed forces of the United States are or have (after January 1, 1960) engaged in combat.

(c) In the case of any individual who dies while a member of the armed forces of the United States, if such death occurs as a result of wounds or injury which was incurred while the individual was a member of the armed forces of the United States and which was incurred outside the United States in a terroristic or military action, any tax imposed by this chapter shall not apply:

(1) With respect to the taxable year in which falls the date of death; and

(2) With respect to any prior taxable year in the period beginning with the last taxable year ending before the taxable year in which the wounds or injury were incurred.

(d) For purposes of subsection (c) of this section, the term "terroristic or military action" means any terroristic activity which a preponderance of the evidence indicates was directed against the United States or any of its allies (or threat thereof). For purposes of the preceding sentence, the term "military action" does not include training exercises. For purposes of this section, any multinational force in which the United States is participating shall be treated as an ally of the United States.

30 Del. C. 1953, § 1204; 59 Del. Laws, c. 146, § 1; 66 Del. Laws, c. 215, §§ 1-3; 68 Del. Laws, c. 187, § 8; 70 Del. Laws, c. 186, § 1.;

(a) The Secretary of Finance shall provide on the Delaware income tax return a means by which an individual claiming and entitled to a refund on such return may elect to have the amount of such refund deposited into an existing Delaware College Investment Plan account established pursuant to subchapter XII of Chapter 34 of Title 14.

(b) The Plans Management Board shall assist the Secretary of Finance with the implementation and administration of this section.

77 Del. Laws, c. 242, § 1; 80 Del. Laws, c. 295, § 1.;

Repealed by 68 Del. Laws, c. 187, § 5, effective Aug. 9, 1991.;

Repealed by 72 Del. Laws, c. 467, § 7, effective July 18, 2000.;

Repealed by 68 Del. Laws, c. 187, § 5, effective Aug. 9, 1991.;