Was a Virginia sales-tax appeal timely when the letter was dated on the deadline but the fax arrived one week later?

Subject

Untaxed retail sales, taxed retail sales not remitted to the Department.

Plain-English summary

Virginia barred the granite seller's appeal because the fax reached the Department after the deadline. The date printed on the appeal letter did not control for fax delivery.

The assessment was issued October 2, 2007. Because December 31 and January 1 were state holidays, the last day for a complete appeal was January 2, 2008. The letter bore that date, but the Department received the fax on January 9.

The ruling therefore left the assessment payable and directed the taxpayer to continue its partial-payment arrangement. It did not reach the taxpayer's request to waive the assessment based on an independent accountant's advice not to collect tax.

What this means for you

• For fax, email, courier, hand delivery, or other non-U.S.-mail methods under the cited guidelines, receipt by the Department controlled timeliness.
• A document's internal date does not prove timely delivery.
• A late appeal can prevent review of substantive reliance or liability arguments.

Common questions

Why was January 2 the deadline? The intervening December 31 and January 1 state holidays extended it.

Did Virginia decide whether the accountant's advice excused the tax? No. The appeal was dismissed as late.

Citations and references

• Va. Code § 58.1-1821.
• P.D. 06-140 § 3(D) (November 29, 2006).

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 08-22

Original ruling text

February 29, 2008

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

Dear *:

This is in response to your letter dated January 2, 2008, in which you submit an appeal of the retail sales and use tax assessment issued to * (the Taxpayer) as a result of an audit for the period July 2004 through June 2007.

FACTS

The Taxpayer is a wholesaler and retailer of granite. An audit resulted in the assessment of sales tax on untaxed retail sales, as well as, taxed retail sales for which the Taxpayer failed to remit to the Department.

The Taxpayer requests waiver of the entire assessment because it relied upon the advice of an independent accountant that sales tax should not be collected on any sales made to customers. I note that the Taxpayer is making partial payments every month towards the assessment.

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." The Administrative Appeal Guidelines for Tax Assessments, issued as Public Document (P.D.) 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 3 D of P.D. 06-140 states:

An administrative appeal that is delivered to the Department by hand, by common carrier or delivery service, facsimile transmission, electronic mail ("e-mail") or any means of delivery other than the United States mail, must be dated and received on or before the 901" calendar day after the date of assessment to be considered timely filed.

In this case, the assessment was issued to the Taxpayer on October 2, 2007. Pursuant to the provisions of Va. Code § 58.1-1821 and P.D. 06-140, and the fact that December 31, 2007 and January 1, 2008 were state holidays, the Taxpayer was required to file its administrative appeal with the Tax Commissioner no later than January 2, 2008. Although the date on the Taxpayer's appeal letter is January 2, 2008, the date of receipt of the facsimile transmission is January 9, 2008. As such, the Taxpayer has not filed a complete administrative appeal with the Department within the 90-day limitation period. Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations.

CONCLUSION

Based on this determination, the assessment remains due and payable. The Taxpayer should continue with its partial payment arrangement until the assessment is paid in full.

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 Tax Policy, Appeals and Rulings at ***.

Sincerely,

Janie E. Bowen

Tax Commissioner

AR/1-2052902218.R