I disputed a Virginia income tax assessment because I'm a military spouse who shouldn't have been taxed as a resident — why won't the Department even look at my case, three years later?

Plain-English summary

In April 2021, the Department assessed individual income tax against a taxpayer for the 2018 tax year. She wrote back explaining she was married to a military servicemember and that their state of residency was elsewhere — a fact potentially relevant to relief from Virginia tax under the federal Military Spouses Residency Relief Act (MSRRA). A round of correspondence followed, including a December 2021 letter from the Department explaining how separation or divorce can affect MSRRA eligibility. Then the file went quiet — until the Department filed a collection lien in May 2024, which finally prompted the taxpayer to submit a formal application for correction contesting her Virginia residency for 2018.

The 90-day deadline had long since run. Virginia Code § 58.1-1821 requires an appeal within 90 days of the date of assessment. The 2018 assessment was issued in April 2021; the application for correction wasn't filed until June 2024 — more than three years after the deadline. The informal back-and-forth in 2021, including the Department's own substantive letter about MSRRA, did not extend or restart that 90-day clock; 23 VAC 10-20-165 B 1 requires a complete appeal within 90 calendar days, period.

The fallback deadline had run too. Virginia Code § 58.1-1824 offers a separate route — a protective claim for refund — but it also requires action within three years of the assessment. That three-year window closed in April 2024, still two months before the taxpayer's June 2024 filing. With both deadlines expired, there was no procedural door left open.

Result: time-barred, case closed. The Department found the application for correction time-barred and closed the case. An updated bill, including accrued interest, was to follow, with the balance due within 30 days to avoid further interest and possible collection action.

What this means for you

Military spouses with an MSRRA residency argument

MSRRA can be a strong substantive argument — but it only matters if you get it in front of the Department in time. A residency dispute doesn't pause Virginia's appeal deadlines just because it involves federal military-spouse law.

Anyone in ongoing informal correspondence with the Department about an assessment

Letters back and forth, even substantive ones from the Department itself, are not the same as filing a timely, complete administrative appeal. If you haven't filed a formal application for correction within 90 days of the assessment, the clock is running regardless of how the informal conversation is going.

Accountants and tax professionals

Track BOTH deadlines independently for every assessed client: the 90-day appeal window (§ 58.1-1821) and the separate 3-year protective-claim-for-refund window (§ 58.1-1824). Missing the first doesn't necessarily mean the second is also gone — but here, by the time the taxpayer acted, both had already closed.

Common questions

Q: Does writing to the Department about a dispute preserve my appeal rights?
A: Not unless it constitutes a timely, complete administrative appeal under Va. Code § 58.1-1821 within 90 days of the assessment. Ordinary correspondence, even a substantive reply from the Department, does not extend that deadline.

Q: I missed the 90-day window — is there any other option?
A: Possibly a protective claim for refund under § 58.1-1824, but that also has its own 3-year deadline from the assessment date. In this case, both had expired by the time the taxpayer acted.

Q: Does being a military spouse change any of these deadlines?
A: Not based on this ruling — the MSRRA residency argument went to the merits of the tax dispute, not to whether the appeal deadlines applied.

Q: What happens now for this taxpayer?
A: The case is closed and the 2018 assessment stands. She'll receive an updated bill with accrued interest, due within 30 days to avoid further interest and collection action.

Citations and references

Statutes and regulations:

• Va. Code § 58.1-1821 — 90-day administrative appeal to the Tax Commissioner
• 23 VAC 10-20-165 B 1 — strict enforcement of the 90-day filing deadline
• Va. Code § 58.1-1824 — protective claim for refund (three-year deadline from the assessment)

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 25-25

Original ruling text

February 18, 2025

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will respond to your letter in which you seek correction of the individual income tax assessment issued to * (the “Taxpayer”) for the taxable year ended December 31, 2018.

FACTS

In April 2021, the Department issued an assessment of individual income tax to the Taxpayer for the 2018 taxable year. The Taxpayer replied, stating that she was married to a military servicemember and their state of residency was * (State A). The Department and the Taxpayer then began a series of correspondences in an attempt to resolve the matter. In December 2021, the Department sent a letter explaining the effects of separation and divorce on the Taxpayer’s eligibility for relief under the Military Spouses Residency Relief Act (MSRRA). No further correspondence was exchanged until the Department filed a lien in May 2024 in an attempt to collect the assessment. In response, the Taxpayer filed an application for correction, contending she was not a resident of Virginia in 2018.

DETERMINATION

Virginia Code § 58.1-1821 states that “[a]ny 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 “[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 instance, the assessment for the 2018 taxable year was issued in April 2021. The Taxpayer filed her application for correction to initiate her administrative appeal in June 2024, well after the 90-day limitations period. Further, the time within which the Taxpayer could have paid the assessment and filed a protective claim for refund under Virginia Code § 58.1-1824 expired in April 2024, three years after the assessment was issued. Accordingly, the Taxpayer’s application for correction is time-barred.

The Taxpayer will receive an updated bill that will include accrued interest to date. The Taxpayer should remit the balance due within 30 days of the bill date to avoid the accrual of additional interest and possible collection actions.

The Code of Virginia sections and regulation cited are available online at law.lis.virginia.gov. If you have any questions regarding this determination, you may contact * in the Office of Tax Policy and Legal Affairs, Tax Adjudication and Resolution Division, at or **.

Sincerely,

James J. Alex

Tax Commissioner

Commonwealth of Virginia

AR/4989.X