Did a notice of intent preserve a Virginia tax appeal when the complete administrative appeal was not filed within 90 days of assessment?

Subject

Taxpayer did not filed a complete administrative appeal within the 90-day limitations period

Plain-English summary

Virginia issued a sales-and-use-tax assessment on December 22, 2006. On March 21, 2007, the taxpayer filed a notice of intent saying that a complete administrative appeal would be filed on April 21.

Va. Code § 58.1-1821 required an application for relief within 90 days of assessment. The Department's appeal guidance expressly stated that an incomplete appeal or notice of intent did not satisfy or extend that deadline.

The 90-day period ended March 22, 2007. Because the taxpayer had submitted only a notice of intent and not a complete administrative appeal by then, the Tax Commissioner held the application barred by the statute of limitations.

What this means for you

• A notice that you plan to appeal was not a substitute for the complete Virginia administrative appeal.
• The notice did not stop or extend the 90-day clock.
• A taxpayer challenging an assessment needed to submit the complete filing by the statutory deadline, not by a self-selected later date.

Citations and references

• Va. Code § 58.1-1821, 90-day period to apply to the Tax Commissioner for relief.
• P.D. 06-140 (November 29, 2006), § 4.2 D, incomplete appeals and notices of intent.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 07-36

Original ruling text

April 20, 2007

Re: § 58.1-1821 Application: Retail Sales and Use Tax

Dear *:

This will reply to your letter of March 21, 2007, in which you file a Notice of Intent to seek correction of retail sales and use tax assessment issued to * (the "Taxpayer") for the period of March 2001 through June 2006.

The Taxpayer was audited by the Department for the aforementioned period. The Department issued an assessment to the Taxpayer on December 22, 2006. On March 21, 2007, the Taxpayer filed a Notice of Intent to appeal with the Department and indicated that a complete appeal would be filed on April 21, 2007.

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.] Public Document 06-140 (11/29/06) 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. Section 4.2 D states, "An incomplete appeal or notice of intent to appeal does not satisfy or extend the 90-day limitations period."

In this case, the assessment issued to the Taxpayer is dated December 22, 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 March 22, 2007. The Taxpayer has not filed a complete administrative appeal with the Department within the 90-day limitations period, and the letter dated March 21, 2007, notifying the Department of the Taxpayer's intent to file an appeal does not satisfy this requirement. Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations.

The Code of Virginia section and public document cited 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 about this response, you may contact * in the Office of Policy and Administration, Appeals and Rulings, at ***.

Sincerely,

Janie E. Bowen

Tax Commissioner

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