My sales tax appeal was postmarked just 9 days after the 90-day deadline -- can the Department still consider it?

Plain-English summary

A business was audited and received sales and use tax assessments dated April 17, 2020, covering periods from May 2016 through April 2019. Virginia law gives taxpayers 90 days from the date of an assessment to file a complete administrative appeal, which in this case meant the appeal was due by July 16, 2020. The taxpayer mailed its appeal to the Department, but the envelope wasn't postmarked until July 25, 2020 -- nine days past the deadline.

The ruling is short and doesn't leave room for interpretation: the Department's own regulation says it "strictly enforces" the 90-day period, and there's no built-in tolerance for a short delay, however brief. Because the appeal's postmark date fell after the deadline, the appeal was rejected as untimely and the assessments were upheld exactly as issued, with the standard 30-day window to pay before additional interest would start accruing again.

What this means for you

Any business or individual planning to mail a Virginia tax appeal near the 90-day deadline

Don't cut it close. This ruling shows the Department treats "strictly enforces" literally -- a nine-day miss was enough to bar the appeal entirely, with no discretion exercised in the taxpayer's favor. Mail well before the deadline, and consider using a delivery method that gives you a verifiable, earlier-than-deadline timestamp.

Anyone unsure whether the postmark date or the received date controls a mailed appeal's timeliness

This ruling calculates timeliness based on when the appeal was postmarked, not when the Department actually received or processed it -- so the date you drop something in the mail is what counts, and mailing something the day of the deadline itself carries real risk if the postmark doesn't get applied until the following business day.

Anyone whose appeal has already been rejected as untimely

Once an appeal is found time-barred, the underlying merits of the assessment generally won't be reached at all -- as this ruling shows, the Department doesn't even discuss whether the assessment itself was correct once it determines the appeal missed the 90-day window.

Common questions

Q: How strictly does Virginia enforce the 90-day appeal deadline?
A: Very strictly, based on this ruling and the underlying regulation -- there's no exception built in for a short delay, and a miss of even a matter of days is enough to bar the appeal entirely.

Q: If I mail my appeal, does the postmark date or the date the Department receives it control?
A: Based on this ruling, the postmark date is what the Department used to determine timeliness -- the appeal was rejected because it was postmarked after the deadline, regardless of when it may have actually arrived.

Q: What happens to my case if my appeal is rejected as untimely?
A: The underlying assessment stands as issued without the Department reaching its merits. In this ruling, revised bills with accrued interest were issued, with a further 30-day window to pay before additional interest would begin accruing again.

Citations and references

• Va. Code § 58.1-1821 (90-day deadline to file an administrative appeal from an assessment)
• 23 VAC 10-20-165 B 1 (the Department strictly enforces the 90-day limitations period; a complete appeal must be filed within 90 calendar days of the assessment date)

Subject

Administration: Statute of Limitations; Appeal Not Timely Filed

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 21-163

Original ruling text

December 28, 2021

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 May 2016 through April 2019. I apologize for the delay in responding to your appeal.

FACTS

The Department audited the Taxpayer and issued assessments dated April 17, 2020 for the period noted above. The Taxpayer submitted an appeal of the audit assessment to the Department via U.S. mail pursuant to Virginia Code § 58.1-1821.

DETERMINATION

Virginia Code § 58.1-1821 states 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….” Title 23 of the Virginia Administrative Code (VAC) 10-20-165 B 1 provides that “the 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 instance, the assessments issued to the Taxpayer are dated April 17, 2020. Based on the provisions on Virginia Code § 58.1-1821 and Title 23 VAC 10-20-165, the Taxpayer’s complete appeal must have been filed by July 16, 2020. The Taxpayer mailed the appeal to the Department via the U.S. mail. The appeal was postmarked on July 25, 2020. The Taxpayer’s appeal is not timely filed, in accordance with the aforementioned authorities. Accordingly, the Taxpayer’s application for correction is barred by the statute of limitations.

Revised bills, with interest accrued to date, will be mailed shortly to the Taxpayer. No further interest will accrue provided the outstanding assessments is paid within 30 days from the date of this letter.

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/3498P