Can a 100%-disabled Virginia veteran or surviving spouse claim the disabled-veteran property tax exemption back to 2011, beyond the usual three-year correction window?

Plain-English summary

The Newport News Commissioner of the Revenue had a knotty timing question. Virginia's disabled-veterans property tax exemption (§ 58.1-3219.5), enacted in 2011 after a constitutional amendment, exempts the principal residence of a 100% service-connected, permanent-and-total disabled veteran (or qualifying surviving spouse). The statute is by its terms retroactive to January 1, 2011. But there is a separate general statute, § 58.1-3980, limiting administrative correction of assessments to three years. Did that three-year cap chop off refunds for veterans who only recently filed the required affidavit?

Attorney General Mark R. Herring said no. The exemption statute is specific. It explicitly says the exemption begins on the date of the veteran's disability rating (if the rating is post-January 1, 2011 and the veteran has a qualifying primary residence on that date), and it contemplates refunds for prior years. The locality is not liable for interest on refunds for taxes paid before the affidavit was filed, but the principal is owed. Reading the three-year cap in § 58.1-3980 to override that would defeat what the General Assembly clearly intended, particularly given the 2016 amendment (effective January 1, 2017) extending the exemption to manufactured homes back to 2011, which by itself spans six years.

The specific-over-general canon (Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 (2008)) resolves the apparent conflict in favor of the exemption statute. The General Assembly chose its words with care (Alger v. Commonwealth, 267 Va. 255 (2004)). The clear intent was that veterans who qualify should be entitled to the full exemption back to 2011.

On the second question, taxpayer mistakes don't bar administrative correction. Section 58.1-3980 lets any "person aggrieved by" an assessment apply for correction, without allocating fault. Prior AG opinions (1991, 2000, 1983-1984) reach the same conclusion: the commissioner of the revenue must correct erroneous assessments regardless of whether the underlying error came from the taxpayer.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The disabled-veteran exemption has been amended several times since 2017, including changes affecting surviving spouses, the definition of qualifying veterans, and the scope of covered property (including in some cases land beyond the residence). Anyone applying for a current refund should consult current statutes and the Virginia Department of Veterans Services.

Background and statutory framework

In 2010 Virginia voters approved a constitutional amendment authorizing the exemption (Va. Const. art. X, § 6-A). The General Assembly enacted § 58.1-3219.5 in 2011, effective April 6, 2011 (per the emergency clause in 2011 Va. Acts chs. 769, 840), applicable to tax years beginning on or after January 1, 2011. Subsequent amendments came in 2012 (clarifying timing and application), 2014 (citation corrections following the constitutional amendment for KIA spouses, codified separately at §§ 58.1-3219.9 to 58.1-3219.12), and 2016 (extending the exemption to manufactured homes and certain real-property improvements, beginning January 1, 2017, while preserving the 2011 retroactive reach).

The statute provides that "[i]f the veteran's disability rating occurs after January 1, 2011, and he has a qualified primary residence on the date of the rating, then the exemption for him under this section begins on the date of such rating." It then addresses refunds: "However, no county, city, or town shall be liable for any interest on any refund due to the veteran for taxes paid prior to the veteran's filing of the affidavit or written statement required by § 58.1-3219.6." The principal is recoverable; interest is not.

Section 58.1-3980 provides a general three-year window for administrative correction of assessments, measured from the last day of the relevant tax year (or one year from the date of assessment, whichever is later). It applies broadly to local taxes "authorized by this title."

The two statutes appear to conflict, but the AG resolved the conflict through the specific-over-general canon (Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 481 (2008), quoting Alliance to Save the Mattaponi v. Commonwealth Dept. of Envtl. Quality, 270 Va. 423, 439-40 (2005)). The 2016 amendment confirmed the General Assembly's view: that amendment extended the exemption back to 2011 even though it became effective in 2017, spanning six years, an outcome inconsistent with a three-year correction limit.

On retroactivity generally, the AG noted the standard rule that retroactive statutes are disfavored but permissible when the General Assembly clearly intends them (Walke v. Dallas, Inc., 209 Va. 32, 35 (1968); Bailey v. Spangler, 289 Va. 353, 359 (2015); Ferguson v. Ferguson, 169 Va. 77, 86-87 (1937)). The disabled-veteran exemption fits that exception.

On taxpayer mistakes, the AG relied on a line of prior AG opinions (1991 Op. Va. Att'y Gen. 282; 2000 Op. Va. Att'y Gen. 218; 1983-1984 Op. Va. Att'y Gen. 346) and the plain text of § 58.1-3980, which allows any aggrieved person to seek correction.

Common questions

Q: I'm a disabled veteran rated 100% in 2014. I just filed my affidavit in 2024. Can I get a refund back to 2014?
A: The AG concluded yes. The exemption begins on the date of your disability rating (so long as it's after January 1, 2011 and you had a qualifying residence then), and the three-year correction limit in § 58.1-3980 does not apply.

Q: Will the locality owe me interest on the back refund?
A: No. The statute explicitly provides that the locality is not liable for interest on refunds for taxes paid before the affidavit was filed.

Q: I'm the surviving spouse of a veteran who died after January 1, 2011. Am I covered?
A: Yes, if you have not remarried and continue to occupy the residence as your principal place of residence. Section 58.1-3219.5(B) addresses surviving spouses; documentation of the veteran's death and disability must be provided.

Q: What if the erroneous tax bill was my fault (I filed the wrong form, missed a deadline)?
A: The AG concluded that taxpayer mistakes do not bar administrative correction under § 58.1-3980. The statute allows any aggrieved person to seek correction.

Q: How far back can the exemption go?
A: To January 1, 2011, the statute's effective date for tax-year application, or to the date of the disability rating if that came later.

Q: Does this analysis apply to the killed-in-action surviving spouse exemption?
A: That exemption is in different statutes (§§ 58.1-3219.9 to 58.1-3219.12). This opinion addresses the disabled-veteran exemption under § 58.1-3219.5.

Citations and references

Virginia statutes:

• Va. Code Ann. § 58.1-3219.5 (disabled veteran exemption)
• Va. Code Ann. § 58.1-3219.6 (affidavit and documentation requirements)
• Va. Code Ann. §§ 58.1-3219.9 to 58.1-3219.12 (KIA surviving spouse)
• Va. Code Ann. § 58.1-3980 (administrative correction)
• Va. Code Ann. § 58.1-3981 (related correction provisions)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)
• 2011 Va. Acts chs. 769, 840 (enacting statute)
• 2012 Va. Acts chs. 75, 263, 782, 806 (2012 amendments)
• 2014 Va. Acts ch. 757 (citation update)
• 2016 Va. Acts chs. 349, 393, 485 (manufactured homes; effective Jan. 1, 2017)

Virginia Constitution:

• Va. Const. art. X, § 6-A (exemption authorization)
• Va. Const. art. I, § 9 (ex post facto)
• Va. Const. art. I, § 11 (obligation of contracts)

Cases:

• Walke v. Dallas, Inc., 209 Va. 32 (1968)
• Bailey v. Spangler, 289 Va. 353 (2015)
• Ferguson v. Ferguson, 169 Va. 77 (1937)
• Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465 (2008)
• Alliance to Save the Mattaponi v. Commonwealth Dept. of Envtl. Quality, 270 Va. 423 (2005)
• Alger v. Commonwealth, 267 Va. 255 (2004)
• Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 (2012)
• Commonwealth v. Amerson, 281 Va. 414 (2011)

Prior AG opinions:

• 1983-1984 Op. Va. Att'y Gen. 346
• 1991 Op. Va. Att'y Gen. 282
• 2000 Op. Va. Att'y Gen. 218
• 2011 Op. Va. Att'y Gen. 171

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/16-060Bele-veterans-tax-exemption-for issuance_2.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Mark R. Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219

June 22, 2017

The Honorable Priscilla S. Bele
Commissioner of the Revenue, City of Newport News
2400 Washington Avenue
Newport News, Virginia 23607

Dear Ms. Bele:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire whether the real property tax exemption for disabled veterans and surviving spouses contained in § 58.1-3219.5 of the Code of Virginia is limited to the current tax year in which the disabled veteran or surviving spouse applies for the tax exemption plus the three preceding tax years; or, whether it is retroactive in application to January 1, 2011. You also inquire whether there may be administrative correction of erroneous assessments resulting from a mistake made by the taxpayer.

Background

Section 58.1-3219.5 of the Code of Virginia sets forth a real property tax exemption for the principal residences of fully disabled veterans and surviving spouses, under certain conditions:

A. Pursuant to subdivision (a) of Section 6-A of Article X of the Constitution of Virginia, and for tax years beginning on or after January 1, 2011, the General Assembly hereby exempts from taxation the real property, including the joint real property of husband and wife, of any veteran who has been rated by the U.S. Department of Veterans Affairs or its successor agency pursuant to federal law to have a 100 percent service-connected, permanent, and total disability, and who occupies the real property as his principal place of residence. [...]

B. The surviving spouse of a veteran eligible for the exemption set forth in this article shall also qualify for the exemption, so long as the death of the veteran occurs on or after January 1, 2011, the surviving spouse does not remarry, and the surviving spouse continues to occupy the real property as his principal place of residence. [1]

The veteran or surviving spouse is required to file with the commissioner of the revenue for the locality in which the real property is located an affidavit or written statement containing certain information in order to qualify for the exemption.[2]

The statute addresses the matter of refunds that are owed to qualified veterans or surviving spouses, and clearly contemplates that a veteran who has submitted the required affidavit or written statement showing entitlement to the exemption is entitled to a refund, back to the time when he or she first became eligible for it, with the only limitation being that the locality shall not be liable for interest on any refund for taxes paid prior the filing of the affidavit or written statement:

If the veteran's disability rating occurs after January 1, 2011, and he has a qualified primary residence on the date of the rating, then the exemption for him under this section begins on the date of such rating. However, no county, city, or town shall be liable for any interest on any refund due to the veteran for taxes paid prior to the veteran's filing of the affidavit or written statement required by § 58.1-3219.6.[3]

The tax exemption statute has a lengthy legislative history. Initially, the Constitution of Virginia, which limits the granting of certain tax exemptions, was amended in 2011 to permit enactment of a tax exemption for disabled veterans and surviving spouses of qualifying veterans.[4] Pursuant to the constitutional amendment, the statute was adopted in 2011. It had an emergency clause[5] and was made applicable "for tax years beginning on and after January 1, 2011." [6]

The statute was subsequently amended in 2012, with the amendment clarifying whether, when, and the extent to which the tax exemption would apply under different circumstances.[7] In 2014, the statute was again amended to change the way in which the Constitution of Virginia was cited.[8] In 2016 the statute was amended yet again to apply the tax exemption to manufactured homes, even if the veteran does not own the land on which the home is situated, and also to certain real property improvements, beginning January 1, 2017. The 2011 exemption "start date" remained in the statute.[9]

Regarding your assessment correction inquiry, I note that a statute for the administrative correction of assessments has a three-year limit for correcting prior assessments. It is set forth in § 58.1-3980, which provides as follows:

Any person . . . assessed by a commissioner of the revenue . . . with any local tax authorized by this title ... [who is] aggrieved by any such assessment, may, within three years from the last day of the tax year for which such assessment is made, or within one year from the date of the assessment, whichever is later, apply to the commissioner of the revenue or such other official who made the assessment for a correction thereof.[10]

Applicable Law and Discussion

Initially, I note that the tax exemption statute is retroactive on its face: despite having been amended in 2012, 2014, and 2016, it still applies to tax years going back to 2011. Additionally, it directly addresses the subject of refunds that may be due to qualified veterans for certain prior years. While not favored, retroactivity of statutes is not impermissible per se, and certain statutes may be applied retroactively, if that is the clear intent of the General Assembly.[11]

Thus, the remaining question is whether the three-year limit on correcting prior assessments applies to the statute granting the tax exemption for veterans with disabilities determined as of 2011 and their surviving spouses.

Consideration of the legislative history of the exemption statute is necessary to address this question. The 2011 disability rating date was set forth in the statute upon its adoption in 2011, and that date remained in the statute following subsequent amendments. The 2016 amendment is particularly significant: it became effective January 1, 2017, and it allowed a new and expanded tax exemption, going back to 2011, for manufactured homes. Thus, this amendment, as duly adopted by the General Assembly, covered six preceding years. This time period is inconsistent with the general three-year limitation for correcting prior assessments-which would be back to 2014, but not beyond. To say that the three-year limitation period applies to the tax exemption would render meaningless the explicit statutory language adopted with an effective date of 2017, making the tax exemption apply to all tax years back to and including 2011-a six-year period.

If one statute addresses a subject in a general way, and another in a more specific way, the latter prevails.[12] Here, we have a general statute imposing a three-year limitation on correcting assessments and a second statute that--even after being amended in 2016-specifically allows a tax exemption going back to 2011, beginning on the date of the disability rating. The specificity of the second statute (creating the tax exemption going back to 2011) thus prevails over the general language of the first statute (imposing a three-year limit on correcting assessments).

We must assume that the General Assembly chose with care the words it used when it enacted a statute[13] and legal effect must be given to legislative intent "as expressed by the language used in the statute."[14] Therefore, I must conclude that it was the intent of the General Assembly that the three-year limitation period not apply to this tax exemption statute.

Regarding your second inquiry, it is my opinion that an erroneous assessment arising from a mistake of the taxpayer is still entitled to administrative correction pursuant to § 58.1-3980.[15] This section does not attempt to allocate fault. It merely allows a taxpayer who is "aggrieved by [an] assessment" to apply for its "correction."[16] Thus, any taxpayer aggrieved by an assessment-regardless of cause or fault, if any-may apply for correction.

Conclusion

Accordingly, it is my opinion that a disabled veteran, or the surviving spouse of a disabled veteran, who has provided the required affidavit or written statement showing compliance with all applicable requirements for the tax exemption provided by the General Assembly in §§ 58.1-3219.5 and 58.1-3219.6, is entitled to enjoy that tax exemption, beginning on the date of the disability rating, including all prior years back to and including 2011. The locality is not liable for any interest on any refund due to the veteran for taxes paid prior to the veteran's filing of the required affidavit or written statement. Further, an erroneous assessment arising from a mistake of a taxpayer is entitled to administrative correction under § 58.1-3980.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CODE ANN. § 58.1-3219.5 (Supp. 2016).

[2] See § 58.1-3219.6 (2013). Official documentation of the veteran's disability status also is required; in addition, in the case of a surviving spouse who applies for the exemption, the surviving spouse must provide documentation that the veteran's death occurred on or after January 1, 2011. See id.

[3] VA. CODE ANN. § 58.1-3219.5(A).

[4] See VA. CONST. art. X, § 6-A; VA. DEP'T OF ELECTIONS: PROPERTY TAX EXEMPTION FOR CERTAIN VETERANS, REFERENDUM, available at http://historical.elections.virginia.gov/ballot_questions/search/year_from:2010/year_to:2010/type:is_referendum; 2011 Op. Va. Att'y Gen. 171, 174 (noting approval of the constitutional amendment by referendum on November 2, 2010, with an effective date for the amendment of January 1, 2011) (last visited June 22, 2017); see also generally 2009 Va. Acts chs. 775, 777 and 2010 Va. Acts chs. 358, 588, 771, 773, for the General Assembly's proposal of a constitutional amendment and referendum.

[5] The statute became effective April 6, 2011, rather than the normal effective date of July 1, 2011. See 2011 Va. Acts chs. 769, 840.

[6] Id.

[7] 2012 Va. Acts chs. 75, 263, 782, 806.

[8] 2014 Va. Acts ch. 757. The change in citation was necessitated by a constitutional amendment authorizing a tax exemption for the surviving spouses of soldiers killed in action. Pursuant to that amendment, the General Assembly enacted that exemption, but in different statutes from the present statute, which deals only with fully disabled veterans, not soldiers who were killed in action. See VA. CODE ANN. §§ 58.1-3219.9 through 58.1-3219.12 (Supp. 2016).

[9] 2016 Va. Acts chs. 349, 393, 485.

[10] Section 58.1-3980 (2013) (emphasis added).

[11] There are limited circumstances in which retroactivity is not permissible, such as ex post facto laws (VA. CONST. art. I, § 9), laws impairing the obligation of contracts (VA. CONST. art. I, § 11), and laws interfering with existing rights of action, suits, or vested property rights (see, e.g., Bailey v. Spangler, 289 Va. 353, 359 (2015)). Retroactive laws have been approved on occasion. "As a general rule statutes relating to remedies and procedure are given a retrospective construction." Walke v. Dallas, Inc., 209 Va. 32, 35 (1968) (internal citations and quotation marks omitted). However, "[a]bsent an express manifestation of intent by the legislature, [courts] ... will not infer the intent that a statute is to be applied retroactively." Bailey, 289 Va. at 359 (citing Ferguson v. Ferguson, 169 Va. 77, 86-87 (1937)).

[12] Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 481 (2008) (quoting Alliance to Save the Mattaponi v. Commonwealth Dept. of Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423, 439-40 (2005) ("A cardinal rule of statutory interpretation is that '[w]hen one statute addresses a subject in a general manner and another addresses a part of the same subject in a more specific manner, the two statutes should be harmonized, if possible, and when they conflict, the more specific statute prevails."').

[13] Alger v. Commonwealth, 267 Va. 255, 261 (2004) (citations omitted).

[14] Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418 (2011)) (internal citation and quotation marks omitted).

[15] "[T]axpayer mistakes do not abrogate the duty of the commissioner of the revenue to correct an erroneous assessment, and[] a commissioner of the revenue may not deny a correction 'based on equitable factors such as the taxpayer's mistake.'" 2000 Op. Va. Att'y Gen. 218, 219 (quoting 1991 Op. Va. Att'y Gen. 282, 284). See also 1991 Op. Va. Att'y Gen. 282, 284 ("The fact that a taxpayer's mistake causes the commissioner of the revenue erroneously to assess the taxpayer's property does not relieve the commissioner of the revenue of his statutory duty under § 58.1-3981 to correct an erroneous assessment ...."); 1983-1984 Op. Va. Att'y Gen. 346, 347 (opining that the taxpayer's filing of an erroneous return did not prevent administrative correction of the assessment).

[16] Section 58.1-3980.