Was a hand-delivered Virginia sales-tax appeal timely when the Department received it on the 91st day after assessment?

Subject

Hand-delivered appeal filed on day 91 was untimely

Plain-English summary

Virginia dismissed the appeal because the Department received it one day after the 90-day deadline. The assessments were issued June 26, 2009, so the complete appeal had to arrive by Thursday, September 24.

The taxpayer hand-delivered a notice of intent in August. It then hand-delivered the actual appeal on September 25, the 91st day after assessment.

The published procedure counted 90 consecutive days beginning the calendar day after assessment, including weekends and holidays. A hand-delivered appeal was filed when a Department employee received and date-stamped it. The application was barred, and the audit merits were not reviewed.

Common questions

What was the deadline?

September 24, 2009.

When was the appeal filed?

September 25, 2009.

Did the notice of intent make the later appeal timely?

No.

Citations and references

• Va. Code § 58.1-1821.
• Virginia Public Document 06-140.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 09-182

Original ruling text

December 11, 2009

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

Dear*:

This will reply to your letter dated September 24, 2009, in which you seek correction of the retail sales and use tax assessments issued to ***. (the “Taxpayer”) as a result of an audit for the period March 2003 through February 2006.

The Department issued the assessments on June 26, 2009. On August 24, 2009, the Taxpayer hand delivered a Notice of Intent to appeal these assessments in a letter dated July 24, 2009. On September 25, 2009, the Taxpayer hand delivered the appeal to my office in a letter dated September 24, 2009.

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 (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 A states, “The 90-day limitations period begins on the calendar day after the date of assessment and continues for 90 consecutive days (including weekends and holidays).” Section D.1 states, “An administrative appeal delivered by hand will be date-stamped by an employee of the Department on the day received. This date will be the filing date for purposes of determining if the administrative appeal is filed within the 90-day limitations period.”

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 Thursday, September 24, 2009. The Taxpayer filed its appeal one day late, i.e., on the 91 st day after the date of assessment. Accordingly, the appeal is not timely filed with the Department. 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

AR/1-3829617174.R