Could a taxpayer challenge 2001 and 2002 Virginia residency assessments by filing an administrative appeal in April 2006?

Subject

Department audited the Taxpayer and determined that he was a Virginia resident

Plain-English summary

Virginia assessed an individual as a resident for 2001 and 2002. The assessments were dated January 23, 2004, and January 7, 2005. The taxpayer did not file an administrative appeal until April 12, 2006.

Va. Code § 58.1-1821 allowed 90 consecutive calendar days after each assessment. The applicable deadlines were April 22, 2004, and April 7, 2005. Because the appeal arrived more than a year after even the later deadline, Virginia dismissed it as time-barred. The ruling did not decide whether the taxpayer was a Virginia resident.

What this means for you

• Calendar the administrative appeal deadline from the assessment date immediately; weekends and holidays counted in the stated 90-day period.
• A potentially valid factual defense does not extend a jurisdictional filing deadline.
• Preserve the assessment notice and proof of when and how any appeal was filed.

Common questions

Did Virginia prove the taxpayer was a resident?

This determination did not reach that question. It resolved only the late filing.

When did the 90-day period begin under the cited guidelines?

The next calendar day after the assessment date, continuing for 90 consecutive calendar days.

Citations and references

• Va. Code § 58.1-1821, the administrative appeal deadline applied by the ruling.
• Administrative Appeal Guidelines § 3(A), calculation of the 90-day period.
• P.D. 06-140, cited on the limitations period.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 07-114

Original ruling text

July 19, 2007

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will reply to your letter in which you seek correction of the individual income tax assessments issued to * (the "Taxpayer") for the taxable years ended December 31, 2001 and 2002.

FACTS

For the taxable years at issue, the Department audited the Taxpayer and determined that he was a Virginia resident. Assessments were issued for the 2001 taxable year on January 23, 2004, and for the 2002 taxable year on January 7, 2005. On April 12, 2006, the Taxpayer filed an administrative appeal contending that the Taxpayer was not a resident of Virginia and was not required to file Virginia income tax returns.

DETERMINATION

Virginia Code § 58.1-1821 provides that "[a]ny person assessed with any tax administered by the Department of Taxation may, within ninety days from the date of such assessment, apply for relief to the Tax Commissioner." [Emphasis added.] Pursuant to Administrative Appeal Guidelines for Tax Assessments Issued by the Virginia Department of Taxation § 3 A, "The 90-day limitations period begins on the calendar day after the date of assessment and continues for 90 consecutive calendar days (including weekends and holidays)." See Public Document (P.D.) 06-140 (11/29/2006).

Pursuant to Va. Code § 58.1-1821, the Taxpayer was required to file an administrative appeal within 90 days after the assessment date, or by April 22, 2004, for the 2001 assessment and by April 7, 2005, for the 2002 assessment. The Taxpayer's administrative appeal is dated April 12, 2006, more than one year after the 90-day limitations period expired for the 2002 assessment. Therefore, the Taxpayer's application for correction filed pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations.

The Code of Virginia section cited and other reference documents are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions about this response, you may contact * in the Department's Office of Policy and Administration, Appeals and Rulings, at ***.

Sincerely,

Janie E. Bowen

Tax Commissioner

AR/1-1197955069B