Was a Virginia sales-tax appeal timely when postmarked nine days after the 90-day deadline?

Plain-English summary

Virginia refused to hear the sales-tax appeal because it was postmarked nine days after the strict 90-day deadline. The assessment was dated July 24, 2012, so a complete appeal had to be filed by October 22.

The taxpayer filed on October 31. Va. Code § 58.1-1821 and the cited regulation required strict enforcement of the 90-calendar-day limitations period.

Because the filing was untimely, Virginia barred the application without considering the audit merits. The assessment remained due with accrued interest.

What this means for you

• Calendar the appeal deadline from the assessment date immediately.
• A complete appeal—not merely an intention to appeal—must be timely filed.
• Keep postmark or approved electronic-filing proof.
• Missing the deadline can prevent any review of the underlying tax dispute.

Common questions

Q: How late was the appeal?
A: Nine days.

Q: Did Virginia consider the tax arguments?
A: No. The filing deadline barred the application.

Q: What happened to the assessment?
A: It remained due with interest.

Citations and references

• Va. Code § 58.1-1821.
• 23 VAC 10-20-165 B 1 b.

Subject

Timely Filing of an Appeal

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 13-151

Original ruling text

August 2, 2013

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

Dear *:

This will reply to your letter in which you seek the correction of a retail sales and use tax assessment issued to * (the "Taxpayer") for the period August 2008 through September 2011. I apologize for the delay in this response.

FACTS

The Department audited the Taxpayer and issued an assessment dated July 24, 2012 for the period noted above. On October 31, 2012, the Taxpayer filed an appeal of the audit assessment pursuant to Va. Code § 58.1-1821.

DETERMINATION

Timely Filing of Appeal

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 such assessment, apply for relief to the Tax Commissioner...." An interpretation of Va. Code § 58.1-1821 is provided in Title 23 of the Virginia Administrative Code (VAC) 10­20-165. Title 23 VAC 10-20-165 B 1 b states that "[t]he department strictly enforces the 90-day limitations period for filing a timely administrative appeal. A taxpayer must file a complete appeal within 90 calendar days after the date of assessment."

In this case, the assessment issued to the Taxpayer is dated July 24, 2012. Based on the provisions of Va. Code § 58.1-1821 and Title 23 VAC 10-20-165, the Taxpayer was required to file a complete administrative appeal by October 22, 2012. The postmark date of the Taxpayer's appeal is October 31, 2012, which is 9 days after the statutory 90-day deadline to file a timely appeal. In accordance with Va. Code § 58.1-1821, the Taxpayer's application for correction is barred by the statute of limitations.

An updated notice of assessment with interest accrued to date will be mailed to the Taxpayer. The bill should be paid within 30 days to avoid the accrual of additional interest. If payment is not received within 30 days, an updated bill with additional accrued interest will be issued to the Taxpayer and collection action will begin.

The Code of Virginia and regulation sections cited, along with other reference documents, are available on-line at www.tax.virginia.gov in the Laws, Rules and Decisions section of the Department's web site. If you have any questions concerning this determination, please contact * in the Department's Office of Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/1-5241259229.S