Could a taxpayer challenge old Virginia assessments in 2008 when the latest assessment had been issued in May 2001?

Subject

November 2008 appeal was too late to challenge the old assessments

Plain-English summary

Virginia denied the appeal because it was filed years after the applicable deadline. The taxpayer had not filed returns for 1985, 1988, 1993, and 1998, and Virginia assessed tax, penalty, and interest. He later argued that he was not a Virginia resident.

The latest assessment was dated May 3, 2001. For assessments issued before August 15, 2003, the Department's then-existing policy accepted an administrative appeal within the three-year period available for pursuing a judicial remedy.

That made May 3, 2004 the latest appeal date. The taxpayer filed on November 18, 2008, so Virginia found the application barred and denied abatement without deciding the residency merits.

What this means for you

• Assessment appeal deadlines can bar review even when the taxpayer disputes the underlying liability.
• The rule applied here was the Department's historical policy for pre-August 15, 2003 assessments.
• The deadline ran from the assessment date, not from the later collection dispute.
• A time-barred determination did not validate or reject the taxpayer's residency facts on the merits.

Common questions

What was the last possible appeal date?

May 3, 2004, three years after the latest assessment.

Did Virginia decide whether the taxpayer was a resident?

No. The ruling denied the application solely because it was untimely.

Citations and references

• Va. Code §§ 58.1-1821 and 58.1-1825(A).
• P.D. 06-132.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 09-87

Original ruling text

May 28, 2009

Re: §58.1-1821 Application: Individual Income Tax

This will reply to your letter in which you seek correction of the individual income tax assessments issued to * (the "Taxpayer") for the taxable years ended December 31, 1985, 1988, 1993, and 1998.

FACTS

The Taxpayer did not file Virginia income tax returns for the taxable years at issue. Under audit, the Department determined the Taxpayer had income subject to Virginia income tax for the 1985, 1988, 1993 and 1998 taxable years and issued assessments for tax, penalty and interest. The Taxpayer contests the assessments, asserting he was not a resident of Virginia.

DETERMINATION

Virginia Code § 58.1-1821 provides, in pertinent part, "Any 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."

Virginia Code § 58.1-1825 A provides, in pertinent part, "Any person assessed with any tax administered by the Department of Taxation and aggrieved by any such assessment may, unless otherwise specifically provided by law, within (i) three years from the date such assessment is made or (ii) one year from the date of the Tax Commissioner's determination under § 58.1-1822, whichever is later, apply to the circuit court for relief."

For assessments issued prior to August 15, 2003, the Department had a policy of accepting administrative appeals at anytime within the three-year statute of limitations for pursuing a judicial remedy. See Public Document (P.D.) 06-132 (10/30/2006). In this instance, the latest tax assessment issued to the Taxpayer is dated May 3, 2001. In accordance with the Department's policy as it existed at the time the assessment was issued, the Taxpayer was required to file an administrative appeal within three years of the date of assessment, or no later than May 3, 2004.

The Department's records indicate the Taxpayer filed an administrative appeal for the taxable years at issue with the Department on November 18, 2008, well after the expiration of the statute of limitations. Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 under the Department's policy prior to August 15, 2003, is barred by the statute of limitations. Accordingly, the Taxpayer's request for an abatement of the tax assessments is denied.

Revised bills, with accrued interest, will be mailed to the Taxpayer. No additional interest will accrue provided the outstanding assessments are paid within 30 days from the date of the revised bills. The Taxpayer should remit his payment to: Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, P.O. Box 27203, Richmond, Virginia 23261, Attn: *.

The Code of Virginia sections 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 web site. If you have any questions regarding this determination, you may contact * at ***.

Sincerely,

Janie E. Bowen

Tax Commissioner

AR/1-3014145625.B