Could Virginia consider a consumer-use-tax appeal filed one day after the ruling's stated 90-day deadline?

Plain-English summary

Virginia refused to consider the appeal because the ruling says it was filed one day after the mandatory 90-day deadline. The assessment notice and an audit-supervisor letter both told the taxpayer that a complete appeal had to be submitted within 90 days. Virginia counts consecutive calendar days, including weekends and holidays, and strictly enforces that period.

The ruling says the appeal was due March 12 and faxed March 13, making it late. It therefore did not reach the underlying consumer-use-tax issues. The original audit liability had been paid, but the 20% post-amnesty penalty remained outstanding because the assessment was not paid within 30 days after issuance.

The official source has an internal chronology problem: it says the assessment was issued December 13, 2011, yet identifies the deadline and fax date as March 12 and March 13, 2011. Those years cannot follow that assessment date. This page preserves the published text and reports the Commissioner's stated one-day-late conclusion without correcting the dates.

Common questions

Q: Does Virginia excuse an administrative tax appeal that is one day late?
A: Not in this ruling. The Department treated the 90-day limit as strict and barred the appeal.

Q: Are the dates in the published ruling internally consistent?
A: No. The March 2011 dates precede the stated December 2011 assessment; the source itself contains that inconsistency.

Citations and references

• Va. Code §§ 58.1-1821 and 58.1-1840.1(F)(1).
• 23 VAC 10-20-165(B)(1)(b) and (C)(1).

Subject

Taxpayer failed to file a timely appeal, its appeal is barred from consideration.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 12-54

Original ruling text

April 24, 2012

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

Dear *:

This is in response to your letter in which you request correction of the consumer use tax assessment issued to * (the "Taxpayer") as a result of an audit for the period May 2008 through April 2011.

A notice of assessment was issued to the Taxpayer on December 13, 2011. The reverse side of the notice of assessment contains the following statement: "You may appeal this assessment at any time within 90 days of the date of assessment." On December 2, 2011, * (the approving supervisor of the audit) sent you a letter notifying you that, "Your appeal must be submitted within 90 days of the audit assessment bill date."

Virginia Code § 58.1-1821 states, "Any 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." Pursuant to Title 23 of the Virginia Administrative Code (VAC) 10-20-165 C 1, the 90-day limitations period "begins on the calendar day after the date of assessment and continues for 90 consecutive calendar days (including weekends and holidays)."

Based on the foregoing, the Taxpayer was required to file a complete appeal by March 12, 2011. The Taxpayer, however, faxed its administrative appeal on March 13, 2011. The Department strictly enforces the 90-day limitations period for filing a timely administrative appeal. See Title 23 VAC 10-20-165 B 1b. As demonstrated by the notice of assessment and the letter from the approving audit supervisor, the Taxpayer was given sufficient notice in writing of the 90-day rule for appealing an assessment. Because the Taxpayer failed to file a timely appeal, its appeal is barred from consideration.

I understand that the Taxpayer paid all of the original audit liability. After the assessment was issued on December 13, 2011, a 20% post amnesty penalty was applied to the assessment pursuant to subsection F 1 of Va. Code § 58.1-1840.1 because the assessment was not paid within 30 days of its issuance. The Taxpayer owes the outstanding post amnesty penalty in the amount of *.

The Code of Virginia sections and regulation cited 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 determination, you may contact * in the Department's Office of Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/1-5034615409.T