When does Virginia's 90-day deadline to appeal a tax assessment start, and does a later bill restart the clock?

Plain-English summary

The Department received IRS information suggesting the taxpayer should have filed a 2021 Virginia return, asked him for information, got no response, and issued an assessment. The taxpayer then appealed, arguing he was not required to file. The Tax Commissioner ruled the appeal was filed too late and, separately, explained why the assessment was valid.

Two lessons:

1. The 90-day appeal clock runs from the "Notice of Assessment." Under Va. Code § 58.1-1821 a taxpayer has 90 days from the date of assessment to appeal, and the Department "strictly enforces" it. The assessment here was dated December 30, 2024; the appeal was filed April 19, 2025 — beyond 90 days. A later "consolidated bill notice" (March 28, 2025) is only a statement of balance due and, under 23 VAC 10-20-165, is not a new notice of assessment and does not restart the deadline. So the appeal was time-barred. (A protective claim for refund under § 58.1-1824 has a three-year window, but only if the assessment has first been paid in full — 23 VAC 10-20-190.)

2. On the merits, the assessment stood. A Virginia resident who must file a federal return must also file a Virginia return (§ 58.1-341), Virginia starts from federal adjusted gross income (§ 58.1-301), and the Department may obtain a resident's federal income data from the IRS under IRC § 6103(d). The IRS-reported W-2 and 1099 income exceeded the filing threshold, and the taxpayer offered no objective evidence it was wrong, so the assessment was upheld.

What this means for you

Anyone who receives a Virginia assessment

Calendar the 90-day deadline from the date printed on the official "Notice of Assessment" itself. Do not wait for, or rely on, a later bill — updated bills, interest statements, and consolidated balance-due notices are not new assessments and do not restart the appeal window.

If you have already missed the 90 days

Your remaining administrative route may be a protective claim for refund (three years from the assessment), but you must pay the assessment in full first. Otherwise the assessment becomes final and collectible.

Residents who didn't file because they think they owe nothing

Virginia can and does assess tax from IRS data. If you were a Virginia resident required to file a federal return and your income exceeded the filing threshold, you must file a Virginia return — and to overturn an assessment built on IRS data you need objective evidence that the data is incorrect.

Common questions

Q: When does the 90-day appeal period start?
A: From the date on the official Notice of Assessment (Va. Code § 58.1-1821; 23 VAC 10-20-165), which the Department strictly enforces.

Q: A later bill arrived — doesn't that give me a new 90 days?
A: No. A subsequent statement of balance due — including a consolidated bill or an updated-interest bill — is not a new notice of assessment and does not restart the clock.

Q: I missed the 90 days — is there any other option?
A: A protective claim for refund within three years, but only if you have paid the assessment in full.

Q: How did Virginia know about my income?
A: Under IRC § 6103(d), the Department can obtain your federal income information (W-2s, 1099s) from the IRS to determine a resident's Virginia tax liability.

Citations and references

Statutes and regulations:

• Va. Code § 58.1-1821 — 90 days from the date of assessment to apply to the Tax Commissioner for relief
• Va. Code § 58.1-1824 — protective claim for refund within three years (assessment must be paid in full)
• Va. Code § 58.1-301 — Virginia conforms to Internal Revenue Code terminology
• Va. Code § 58.1-341 — a Virginia resident required to file federally must file in Virginia (unless exempt under § 58.1-321)
• 23 VAC 10-20-165 — definitions of "date of assessment" and "notice of assessment"; strict 90-day rule
• 23 VAC 10-20-190 — protective claim requires full payment
• IRC § 6103(d) — Department may obtain federal return information from the IRS

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 26-26

Original ruling text

May 25, 2026

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 you (the “Taxpayer”) for the taxable year ended December 31, 2021.

FACTS

The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may have been required to file a Virginia income tax return for the 2021 taxable year. A review of the Department’s records showed that the Taxpayer had not filed a return. The Department requested additional information from the Taxpayer in order to determine if his income was taxable in Virginia. When no response was received, the Department issued an assessment. The Taxpayer submitted an application for correction, contending that he was not required to file a Virginia income tax return.

DETERMINATION

Deadline For Filing Appeals

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 2021 taxable year was issued on December 30, 2024. The Taxpayer filed this application on April 19, 2025, after the 90-day limitations period. Further, although the time to file a protective claim for refund under Virginia Code § 58.1-1824 does not expire until three years after the assessment was issued, a protective claim is only available as a remedy if the assessment has been paid in full. See Title 23 VAC 10-20-190 A 1.

The Taxpayer appears to believe that the issuance of a consolidated bill notice on March 28, 2025, started the 90-day period for filing an application for correction under Virginia Code § 58.1-1821. “Date of assessment” is defined, in part, as the date stated on the “notice of assessment.” See Title 23 VAC 10-20-165 A.

Title 23 VAC 10-20-165 A further defines “notice of assessment” as:

The Department’s official form labeled “Notice of Assessment” that contains written information that sets out the date of the assessment, amount of assessment, the tax type, taxable period, account number, bill number and name of the taxpayer. A subsequent statement of balance due the department does not constitute a new notice of assessment. Such subsequent statements include reports of payments applied to assessments, updated bills reflecting additional accrued interest, or other changes to an assessment. [Emphasis added.]

Under this regulation, the consolidated bill notice dated March 28, 2025, does not constitute a notice of assessment that would extend the Taxpayer’s time for filing an application for correction of the original assessment. Accordingly, the Taxpayer’s application is time-barred.

Taxation of Virginia Residents

The statute of limitations issue notwithstanding, the Department will explain the basis for the assessment for informational purposes. Virginia Code § 58.1-301 provides, with certain exceptions, that the terminology and references used in Title 58.1 of the Code of Virginia will have the same meaning as provided in the Internal Revenue Code (IRC) unless a different meaning is clearly required. Conformity does not extend to terms, concepts, or principles not specifically provided in the Code of Virginia . For individual income tax purposes, Virginia conforms to federal law, in that it starts the computation of Virginia taxable income (VTI) with federal adjusted gross income (FAGI). Income properly included in the FAGI of a Virginia resident is subject to taxation by Virginia, unless it is specifically exempt as a Virginia modification pursuant to Chapter 3 of Title 58.1 of the Code of Virginia .

Further, Virginia Code § 58.1-341 provides that a Virginia resident who is required to file a federal income tax return is also required to file a Virginia income tax return, unless the resident is exempt from filing under Virginia Code § 58.1-321. When a resident does not file a proper Virginia return, IRC § 6103(d) authorizes the Department to obtain information from the IRS that will help in determining the resident's tax liability. See Public Document (P.D.) 14-33 (3/7/2014) and P.D. 24-86 (9/13/2024).

In this case, it appears that the Taxpayer was a resident of Virginia for the taxable year at issue. As such, he would have been subject to Virginia income tax and required to file a Virginia resident income tax return if he had sufficient income to exceed the filing threshold.

Based on the information the Department received from the IRS, the Taxpayer had income reported on Forms W-2, 1099-B, and 1099-MISC. The total amount of income exceeded the filing threshold, and the assessment was based on such amounts. By letter dated May 15, 2025, the Department provided the Taxpayer with a detailed list of the reported income. As a courtesy, a copy of that letter is enclosed.

CONCLUSION

The Taxpayer failed to timely file an application for correction of the assessment or make a valid protective claim for refund for the 2021 taxable year. Even if he had, the Department’s assessment was based on information obtained from the IRS as permitted under Virginia law, and the Taxpayer has not provided any objective evidence that the information was incorrect.

Therefore, the assessment for the 2021 taxable year is upheld. 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 regulations cited are available online at law.lis.virginia.gov. The public documents cited are available at tax.virginia.gov in the Laws, Rules & Decisions section of the Department’s website. 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,

Kristin L. Collins
Tax Commissioner
Commonwealth of Virginia

AR/5186.Y

Related Documents

14-33

24-86