Was a Virginia use-tax appeal timely when the assessment was dated July 8, 2008 and the appeal was mailed in February 2009?

Subject

Assessment appeal was barred by the filing deadline

Plain-English summary

Virginia refused to consider the merits because the taxpayer appealed too late. The use-tax assessment was dated July 8, 2008. Under the 90-day period quoted from Va. Code § 58.1-1821, the application for relief was due no later than October 6, 2008.

The Department's records showed that the only appeal correspondence was a letter dated February 6 and postmarked February 7, 2009. Because that was months after the stated deadline, the Tax Commissioner held the application time-barred and left the assessment correct as issued.

What this means for you

• An administrative tax appeal can fail without review of the underlying tax issue if it misses the filing deadline.
• Preserve the assessment date, mailing records, submission confirmation, and all earlier correspondence.
• Use the current statute and appeal instructions; this ruling applied the deadline in effect to a 2008 assessment.

Common questions

What was the deadline in this ruling?

October 6, 2008, which the Department calculated as 90 days after the July 8 assessment.

When did the taxpayer file?

The only recorded appeal letter was dated February 6 and postmarked February 7, 2009.

Did the Commissioner decide whether the assessment was substantively correct?

No substantive challenge was addressed; the late filing left the assessment in place.

Citations and references

• Va. Code § 58.1-1821.
• P.D. 06-140 (Administrative Appeal Guidelines).

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 09-41

Original ruling text

April 27, 2009

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

Dear *:

This will apply to your letter in which you seek correction of the retail sales and use tax assessment issued to * (the "Taxpayer") for the period September 2004 through December 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 such assessment, apply for relief to the Tax Commissioner." [Emphasis added.] In this case, the use tax assessment issued to the Taxpayer is dated July 8, 2008. Pursuant to the provisions of Va. Code § 58.1-1821, the Taxpayer was required to file its administrative appeal with the Tax Commissioner no later than October 6, 2008. The Department's records indicate that your letter dated February 6, 2009 (with a postmark date of February 7, 2009) is the only correspondence from the Taxpayer regarding an administrative appeal of the assessment at issue. Therefore, the Taxpayer's application for correction is barred by the statue of limitations.

Accordingly, the assessment is correct as issued. An updated bill, with interest accrued to date, will be sent to the Taxpayer. No additional interest will accrue provided the outstanding balance is paid within 30 days from the date of the bill. Please remit your payment to: Virginia Department of Taxation, 3600 West Broad Street, Suite 160, Attn: *, Richmond, Virginia 23230. If you have any questions concerning payment of the assessment, you may contact at **.

The Code of Virginia section cited and the Administrative Appeal Guidelines (Public Document 06-140 (11/29/06)) 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 Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Janie E. Bowen

Tax Commissioner

AR/1-3190700122.T