Was a Virginia tax appeal filed by fax two days after the 90-day deadline considered timely?

Subject

Complete appeal required within 90 days of assessment

Plain-English summary

Virginia dismissed the taxpayer's sales-and-use-tax appeal because it was filed two days late. The assessment was dated November 5, 2013. The 90-calendar-day period ended February 3, 2014, but the taxpayer transmitted its appeal by fax on February 5.

The Department said it strictly enforced the limitations period and required a complete appeal within 90 days after the assessment date. Because the filing missed that deadline, the Tax Commissioner could not consider the application for correction.

What this means for you

• Calendar the appeal deadline from the assessment date, not from later collection activity.
• Submit a complete appeal early enough to resolve delivery or completeness problems.
• A short delay can bar the appeal without any review of the underlying tax dispute.

Common questions

Q: Did the ruling address whether the assessment itself was correct?
A: No. The late filing prevented review of the merits.

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

Q: What happened next?
A: The Department said it would issue an updated bill and begin collection if payment was not received within 30 days.

Citations and references

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

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 14-36

Original ruling text

March 19, 2014

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 November 2007 through June 2013.

FACTS

The Department audited the Taxpayer and issued an assessment dated November 5, 2013 for the period noted above. On February 5, 2014, the Taxpayer filed an appeal of the audit assessment by facsimile transmission pursuant to Va. Code § 58.1-1821.

DETERMINATION

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) 10­ - 20-165. 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 November 5, 2013. 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 February 3, 2014. The facsimile transmission date on the Taxpayer's appeal is February 5, 2014, which is two 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 bill 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, additional interest will accrue on the outstanding balance and collection action will begin.

The Code of Virginia and regulation sections cited are available on-line at www.tax.virginia.gov in the Laws, Rules and Decisions section of the Department's website. 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/1-5621914838.Q