Was an administrative appeal timely when its letter was dated before the 90-day deadline but the delivery service received it afterward?

Subject

Taxpayer did not file a complete administrative appeal within the 90-day limitation

Plain-English summary

Virginia dismissed the appeal as untimely because the delivery service received it after the 90-day deadline, even though the letter itself carried an earlier date. The Commissioner did not decide the taxpayer's arguments about whether income tax was mandatory.

Assessments were issued April 8, 2004 and October 17, 2006. The respective appeal deadlines were July 7, 2004 and January 16, 2007.

The appeal letter was dated January 10, 2007, but the delivery-service envelope showed February 7, 2007. Under the administrative guidelines applied in the ruling, the carrier or delivery-service receipt date was the filing date. The application was therefore barred, and both assessments remained due.

What this means for you

• A date typed on an appeal letter does not establish timely filing.
• Keep carrier acceptance receipts and labels proving the actual handoff date.
• Track the deadline separately for each assessment.
• When current rules permit electronic filing, preserve the submission confirmation and timestamp.

Common questions

Did Virginia reject the taxpayer's substantive income-tax theory? The ruling did not reach it because the appeal was late.

Which date controlled? The delivery service's receipt date shown on the envelope.

What happened to the assessments? They remained due and payable.

Citations and references

• Va. Code § 58.1-1821.
• P.D. 06-140 § 3(D)(2).

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 07-133

Original ruling text

August 24, 2007

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will reply to your letter concerning the Virginia individual income tax assessments issued to * (the "Taxpayer") for the taxable year ended December 31, 2001.

FACTS

The Taxpayer is a Virginia resident. In April 2004, the Department issued an assessment against the Taxpayer for failing to file a 2001 Virginia income tax return. In 2006, the Department obtained additional information from the Internal Revenue Service concerning the Taxpayer's income for the 2001 taxable year. Based on this information, an additional assessment was issued in October 2006.

The Taxpayer contests the assessments, stating that he is not subject to a mandatory income tax and that there is no law, statute, regulation or federal register citation applicable to him that imposes a tax liability or legal requirement to file state or federal income tax forms. The Taxpayer asserts that the Internal Revenue Code does not define the terms "income," or "adjusted gross income," nor does it establish a "liability" for "income taxes." In addition, the Taxpayer argues that the Code of Virginia does not define the term "income" nor does it establish a law creating a "liability for income taxes."

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 assessment, apply for relief to the Tax Commissioner." [Emphasis added.] The Administrative Appeal Guidelines for Tax Assessments, issued as Public Document (P.D.) 06-140 (11/29/2006), provides additional details regarding the timely filing of administrative appeals. This document provides information to taxpayers about the process for appealing tax assessments including the filing of a Notice of Intent and a complete administrative appeal. P.D. 06-140 § 3 D 2 states:

The date of receipt by the carrier or delivery service shown on the shipping or address label or elsewhere on the envelope or package delivered to the Department by common carrier or delivery service will be the filing date of the administrative appeal for purposes of determining if the administrative appeal is filed within the 90-day limitations period.

In this case, assessments were issued to the Taxpayer on April 8, 2004 and October 17, 2006. Pursuant to the provisions of Va. Code § 58.1-1821 and P.D. 06-140, the Taxpayer was required to file its administrative appeal with the Tax Commissioner no later than July 7, 2004, for the first assessment and January 16, 2007, for the second. Although the date on the Taxpayer's appeal is January 10, 2007, the date of receipt on the delivery service envelope is February 7, 2007. Consequently, the Taxpayer has not filed a complete administrative appeal with the Department within the 90-day limitations period. Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations. The Virginia individual income tax assessments for the 2001 taxable year remain due and payable.

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

Sincerely,

Janie E. Bowen

Tax Commissioner

AR/1-1239323369E