My accountant filed my Virginia tax appeal just one day late because of a personal emergency — will the Department make an exception?

Plain-English summary

A taxpayer was audited for October 2019 through November 2022 and assessed tax. Its application for correction was filed exactly one day after Va. Code § 58.1-1821's 90-day deadline, because the accountant responsible for the filing was dealing with unforeseen personal difficulties. The Department declined to review the application as untimely and closed the case. The taxpayer then asked for reconsideration, invoking the Virginia Taxpayer Bill of Rights and arguing that "exceptional circumstances" should excuse a one-day miss, and that a delay this small doesn't seriously impede tax administration.

No exception, no matter how sympathetic. The Department first noted that the reconsideration provisions in 23 VAC 10-20-165 F don't even apply here, because no complete appeal had ever been timely filed to reconsider. But rather than leave the deadline question unanswered, it treated the taxpayer's letter as a formal ruling request under Va. Code § 58.1-203, to clarify the rule generally. Its answer: the Department "strictly enforces" the 90-day period under 23 VAC 10-20-165 B 1 b — a rule that applies "regardless of actions by a taxpayer or practitioner," including filing a request for informal review or a mere statement of intent to appeal. The published Virginia Taxpayer Bill of Rights repeats this rigid enforcement in five separate places.

Why the Department can't just be lenient. The ruling points to the separation of powers: Virginia's Constitution lets the General Assembly set the Department's duties, and Va. Code § 58.1-202 charges the Tax Commissioner with administering assessments EQUITABLY WITHIN the statutory system the legislature built — not with overriding a deadline the legislature itself set. The ruling then quotes a string of U.S. Supreme Court cases on the nature of filing deadlines: that courts won't soften the legislature's chosen words even where it produces a "harsh outcome" (Lamie v. U.S. Trustee, quoting United States v. Locke); that deadlines "operate harshly and arbitrarily" toward people who fall just short, but "must be enforced" if they are to mean anything (Locke); that rigid deadlines exist precisely because "any less rigid standard would risk encouraging a lax attitude toward filing dates" (United States v. Boyle); and that forgiving a one-day miss invites a "cascade of exceptions" that would swallow the rule, since "regardless of where the cutoff line is set, some individuals will always fall just on the other side of it" (Carlisle v. United States, quoting Locke).

The case is closed, but not every door is. Because the application for correction wasn't timely, the Department closed the case and the assessment stands, with an updated bill to follow (interest stops accruing if paid within 30 days). But the ruling is careful to note an application for correction isn't the only way to dispute an assessment: a taxpayer can still pursue an offer in compromise (§ 58.1-105), a protective claim for refund after paying the assessment in full (§ 58.1-1824), or a suit in circuit court (§ 58.1-1825).

What this means for you

Anyone appealing a Virginia tax assessment

Treat the 90-day clock as absolute. There is no "close enough," no good-faith exception, and no relief for a preparer's personal emergency, however sympathetic. File early enough to survive any last-minute disruption — don't plan to file on day 89 or 90.

Accountants and tax professionals

Build in a buffer well before day 90, and have a backup plan (a colleague, a paralegal, a calendar alert to a second person) in case the preparer responsible for a filing becomes unexpectedly unavailable. The Bill of Rights specifically says even a notice of intent to appeal, filed timely, won't save a late complete appeal — so partial timely action doesn't help either.

If you've already missed the 90-day window

The correction-application route is closed, but you may still have options: an offer in compromise, a protective claim for refund (which requires paying the full assessment first), or a lawsuit in circuit court. Each has its own requirements and timing — evaluate them before assuming there's nothing left to do.

Common questions

Q: Is there ANY circumstance that excuses a late appeal filing?
A: Based on this ruling, no — the Department strictly enforces the 90-day deadline regardless of the taxpayer's or practitioner's circumstances, and the Tax Commissioner's authority doesn't extend to waiving a deadline the General Assembly itself set.

Q: Why did the Department answer this at all, if the reconsideration request didn't technically qualify for review?
A: It chose to treat the letter as a formal ruling request under Va. Code § 58.1-203, to clarify Virginia's statutory appeal deadline rule for future reference.

Q: What if I miss the 90-day appeal window — is the assessment final forever?
A: Not necessarily. You may still pursue an offer in compromise, a protective claim for refund (after paying the assessment in full), or a suit in circuit court — each governed by its own statute and deadlines.

Q: Does it matter that the delay was caused by the accountant, not the taxpayer personally?
A: No — the ruling notes the strict-enforcement rule applies "regardless of actions by a taxpayer or practitioner."

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 b, C — strict enforcement of the 90-day filing deadline
• Va. Code § 58.1-1845 — Virginia Taxpayer Bill of Rights
• Va. Code § 58.1-202 1 — Tax Commissioner's general powers and duties
• Va. Code § 58.1-203 — ruling request procedure
• Va. Code § 58.1-105 — offer in compromise
• Va. Code § 58.1-1824 — protective claim for refund (requires full payment)
• Va. Code § 58.1-1825 — judicial application for correction in circuit court

Other authorities cited: Virginia Tax Bulletin (VTB) 03-8 (7/15/2003); P.D. 06-140 (11/29/2006) (described here, not linked); and the U.S. Supreme Court's Lamie v. U.S. Trustee, 540 U.S. 526 (2004); United States v. Locke, 471 U.S. 84 (1985); United States v. Boyle, 469 U.S. 241 (1984); and Carlisle v. United States, 517 U.S. 416 (1996), on the strict enforcement of statutory filing deadlines.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 25-28

Original ruling text

February 18, 2025

Re: Ruling Request: General Provisions

Dear *:

This will reply to your letter in which you seek reconsideration of the Department’s decision to decline a review of the application of correction submitted by * (the “Taxpayer”) because it was filed after the application deadline.

FACTS

An audit was conducted on the books and records of the Taxpayer for the period October 2019 through November 2022 resulting in an assessment. The Taxpayer filed an application for correction contesting the assessment. The Department found that the application was not filed until after the 90-day limitations period permitted by law and, therefore, could not consider the Taxpayer’s request. The Taxpayer seeks a reconsideration of the Department’s findings, asserting that the application was only one day late and the Virginia Taxpayer Bill of Rights permits an extension of the application for correction deadline if exceptional circumstances caused delays in responding to notices.

DETERMINATION

When a complete application for correction has not been submitted, the reconsideration provisions of Title 23 VAC 10-20-165 F would not apply to the Taxpayer’s request for a review the 90-day filing deadline. Regardless, in order to clarify Virginia’s statutory deadline for seeking administrative relief under Virginia Code § 58.1-1821, the Department has decided to treat this request as a request for ruling under Virginia Code § 58.1-203.

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.” Further, Title 23 of the Virginia Administrative Code (VAC) 10-20-165 B 1 b 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.” Based on the provisions of Virginia Code § 58.1-1821 and Title 23 VAC 10-20-165, the Taxpayer failed to file a complete appeal within 90 calendar days after the date of assessment.

The Taxpayer argues that the accountant responsible for filing the application experienced unforeseen personal difficulties that impacted their ability to meet deadlines. Based on these exceptional circumstances, the Taxpayer believes that the Department has the authority to extend the period under which an application for correction under Virginia Code § 58.1-1821 may be filed. The Taxpayer also offers that equitable tax administration supports reconsideration in cases where a delay does not seriously impede the process. Under this reasoning, the Taxpayer believes that missing the deadline by one day was a minimal impediment and occurred in a good faith effort to provide a complete and accurate response.

Virginia Code § 58.1-1845 sets out the Virginia Taxpayer Bill of Rights. One of the statutory rights granted to taxpayers permits them to seek review, either formally or informally, of any assessments for other adverse decisions resulting from examinations, audits, or collections processes. The statutory rights are expanded and explained in a publication of the same name issued by the Department and posted on its website. Contrary to the Taxpayer’s assertion, under the section titled “Appeal to the Tax Commissioner Under Va. Code § 58.1-1821,” the publication specifically provides that the Department will strictly enforce the 90-day limitation for filing an application for correction, regardless of actions by a taxpayer or practitioner including the filing of a request for an informal review or a statement of intent to file an application. In addition, the rigid enforcement of the 90-day deadline is addressed in 5 other sections of the Virginia Taxpayer Bill of Rights. See also Virginia Tax Bulletin (VTB) 03-8 (7/15/2003), Public Document (P.D.) 06-140 (11/29/2006), and Title 23 VAC 10-20-165 C.

With regard to administration, Article V, Section 9 of the Constitution of Virginia permits the General Assembly to statutorily prescribe the functions, powers, and duties of the administrative departments, divisions, and agencies of the Commonwealth, including the Department. Virginia Code § 58.1-202 sets forth the general powers and duties of Tax Commissioner. More specifically, Virginia Code § 58.1-202 1 charges the Department with supervising the administration of Virginia’s tax laws as they relate to taxpayers subject to Virginia tax and any assessments thereon, with an understanding that assessments should be equitable. Under this statute, the Department is limited to ensuring its assessments are equitably made under the statutory system established by the General Assembly. Virginia’s General Assembly has limited the period under which a taxpayer may file an application for correction under Virginia Code § 58.1-1821 to 90 days from the date of assessment.

The United States Supreme Court has been unwilling to soften the chosen words of the legislature even if “the words lead to a harsh outcome.” See Lamie v. U.S. Trustee, 540 U.S. 526, 538 (2004) (quoting United States v. Locke , 471 U.S. 84, 95 (1985)). “Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced.” United States v. Locke , 471 U.S. 84 at 101. “Deadlines are inherently arbitrary; fixed dates, however, are often essential to accomplish necessary results. … Any less rigid standard would risk encouraging a lax attitude toward filing dates.” United States v. Boyle, 469 U.S. 241, 249, (1984). “If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it.” Carlisle v. United States , 517 U.S. 416, 430 (1996) (quoting Locke , 471 U.S. at 95). Based on Virginia’s statute and regulations, the Taxpayer’s application fell on the other side of the cutoff line.

Further, an application for correction is not the only manner in which a taxpayer may dispute an assessment by the Department. Other methods for seeking to resolve a disputed assessment include filing an offer in compromise under Virginia Code § 58.1-105, filing a protective claim for refund under Virginia Code § 58.1-1824 upon payment of the full amount of the assessment, or filing suit in court under Virginia Code § 58.1-1825.

Because an application for correction was not timely filed, the Department is closing this case and the assessment remains outstanding. An updated bill, with interest accrued to date, will be mailed to the Taxpayer. No further interest will accrue provided the outstanding assessment is paid within 30 days from the date of the bill.

The Code of Virginia sections and regulation cited are available online at law.lis.virginia.gov. The public document and tax bulletin cited are available online at www.tax.virginia.gov in the Laws, Rules, & Decisions section of the Department’s website. If you have any questions regarding this response, 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/5084.o

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