Was a Virginia sales-tax appeal timely when the 90th day fell on Sunday but the envelope was postmarked Tuesday?

Subject

Tuesday postmark missed Monday's extended appeal deadline

Plain-English summary

The appeal was one day late and could not be considered. The assessments were issued May 4, 2015. The 90th day was Sunday, August 2, so the regulation moved the deadline to Monday, August 3, the Commonwealth's next business day.

For an appeal sent by U.S. mail, the postmark or meter date had to fall on or before that deadline. The envelope was postmarked Tuesday, August 4.

Result: Virginia was barred from reviewing the taxpayer's challenges to estimated gross and exempt sales. The assessments remained due with interest.

What this means for you

• Count 90 consecutive calendar days beginning the day after assessment.
• If day 90 is a weekend or qualifying holiday, use the next Commonwealth business day.
• For U.S. mail, preserve a timely postmark or meter date.
• File early enough to avoid disputes over delivery evidence.

Common questions

Q: Did Sunday make Tuesday timely?

A: No. The deadline moved only to Monday.

Q: Did Virginia consider the sales-audit merits?

A: No. The late filing barred the application for correction.

Citations and references

• Va. Code § 58.1-1821; 23 VAC 10-20-165(C).

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 15-203

Original ruling text

October 19, 2015

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

Dear *:

This is in response to your letter submitted on behalf of * (the "Taxpayer") in which you seek correction of the retail sales and use tax assessments issued for the period July 2011 through February 2015.

FACTS

As a result of the Department's audit, the Taxpayer submits an appeal contesting the calculation of the estimated gross sales and the estimated exempt sales in the audit. The Taxpayer also contends that all taxable sales were properly paid and remitted timely to the Department during the audit period. The Taxpayer requests that the assessments be abated in full.

DETERMINATION

Virginia Code § 58.1-1821 provides, in pertinent part, that "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." [Emphasis added.] Title 23 of the Virginia Administrative Code (VAC) 10-20-165 C provides further clarification regarding the 90-day statute of limitations and states in pertinent part that:

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).

2. Regardless of the delivery method used, if the 90th calendar day after the date of assessment is a Saturday, Sunday, federal holiday or Virginia state holiday, the administrative appeal will be considered timely if filed on the Commonwealth's next business day.

3. An administrative appeal that is delivered to the department using the United States mail must be postmarked or have a metered date that is on or before the 90th calendar day after the date of assessment to be considered timely filed.

In this instance, the assessments being contested by the Taxpayer were issued to the Taxpayer on May 4, 2015. The 90th calendar day from the date the assessments were issued occurred on Sunday, August 2, 2015. In accordance with Title 23 VAC 10-20-165 C, the statute of limitations to file an appeal expired on the Commonwealth's next business day, Monday, August 3, 2015. The Taxpayer's correspondence to the Department is postmarked on Tuesday, August 4, 2015. In accordance with Title 23 VAC 10-20-165 C, the Taxpayer's correspondence to the Department had to have been postmarked on Monday, August 3, 2015 in order to be timely filed. The Taxpayer's correspondence is not postmarked for this date and, therefore, is not a timely filed appeal with the Department. Accordingly, the Taxpayer is barred from filing an application for correction of the assessments.

The assessment bills, with interest accrued to date, will be mailed shortly to the Taxpayer. No further interest will accrue provided the outstanding assessments are paid within 30 days from the dates of the bills. Please remit payment to: Virginia Department of Taxation, 600 E. Main Street, 15 th Floor, Richmond, Virginia 23219, Attn: *. If you have any questions concerning payment of the assessments, you may contact at **.

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

Sincerely,

Craig M. Burns
Tax Commissioner

AR/1-6119056855.P