How long do I have to claim a Virginia individual income tax refund, and does relying on my accountant extend that deadline?

Plain-English summary

A nonresident taxpayer overpaid Virginia individual income tax (through withholding) for 2020 and later filed a special nonresident return to claim the refund. The Department denied it as filed too late, and the Tax Commissioner upheld the denial.

Virginia law (§ 58.1-499 D) gives you three years from the return's original due date to claim a refund of overpaid income tax. For 2020, Virginia extended the filing deadline to May 17, 2021 (Virginia Tax Bulletin 21-5), so the three-year window closed in May 2024. The taxpayer filed the 2020 return in June 2024 — just past the deadline. Even though he had relied on an accountant who never submitted the Virginia return and filed as soon as he discovered the omission, the Commissioner held that the statute is "clear and do[es] not provide the Department with any discretion in enforcing the three-year limitations period." Taxpayers remain responsible for making sure their returns are actually filed on time.

What this means for you

Anyone owed a Virginia refund

Claim it within three years of the return's original due date (generally May 1 of the following year — but check for emergency extensions like the 2020 COVID extension to May 17, 2021). After that window closes the money is lost: the Department has no discretion to waive the deadline, even for sympathetic circumstances.

People who use a preparer or accountant

Relying on a preparer does not extend the deadline or excuse a missed filing. Confirm that your Virginia return was actually filed — not just your federal or another state's return. Filing "as soon as you found out" does not help if the three years have already run.

Nonresidents with Virginia withholding

If Virginia tax was withheld from your pay but you did not owe it, you must file the special nonresident claim within the same three-year window to get it back.

Common questions

Q: How long do I have to claim a Virginia income tax refund?
A: Three years from the last day for timely filing the return (its original due date), under Va. Code § 58.1-499 D.

Q: My accountant forgot to file — can I still get my refund?
A: Not if the three years have run. Reliance on an accountant does not extend the deadline; the responsibility to ensure the return is filed stays with the taxpayer.

Q: Does the Department have any discretion to make an exception?
A: No. The Commissioner held that § 58.1-499 D leaves no discretion once the three-year period has passed.

Q: What was the deadline for a 2020 return?
A: Three years from the extended May 17, 2021 due date (Virginia Tax Bulletin 21-5) — so mid-May 2024.

Citations and references

Statutes:

• Va. Code § 58.1-499 A — the Department shall order a refund of an overpayment
• Va. Code § 58.1-499 D — no refund unless the written application is received within three years from the last day for timely filing the return
• Va. Code § 58.1-341 A — individual income tax returns are due May 1 of the following year

Guidance:

• Virginia Tax Bulletin 21-5 (4/9/2021) — extended the 2020 individual filing/payment deadline to May 17, 2021

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 26-28

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 a refund of the overpayment of individual income tax paid by you (the “Taxpayer”) for the taxable year ended December 31, 2020.

FACTS

The Taxpayer filed a Virginia special nonresident claim for individual income tax withheld for the 2020 taxable year, claiming a refund of his overpayment. The Department denied the refund because the return was filed beyond the refund period allowed by Virginia’s statute of limitations. The Taxpayer applied for correction contending that he relied on his accountant to submit the return and that he submitted the return as soon as he became aware that it had not been submitted.

DETERMINATION

Virginia Code § 58.1-499 A provides that, in the case of any overpayment of any tax, whether by reason of excessive withholding, overestimating and overpaying estimated tax, or error on the part of the taxpayer, the Department shall order a refund of the overpayment. Virginia Code § 58.1-499 D specifies, however, in pertinent part that:

No refund under this section . . . shall be made . . . whether on discovery by the Department or on written application of the taxpayer, if such discovery is not made or such written application is not received within three years from the last day prescribed by law for the timely filing of the return . . . [Emphasis added.]

Virginia Code § 58.1-341 A requires that taxpayers file individual income tax returns by May 1 of the year following the tax year for which the return is filed. For the 2020 taxable year, however, Governor Northam announced that Virginia would extend the individual income tax filing and payment deadline for calendar year filers from May 1, 2021, to May 17, 2021, and the corresponding extended due date from November 1, 2021, to November 17, 2021. See Virginia Tax Bulletin (VTB) 21-5 (4/9/2021). Accordingly, the Taxpayer had three years from the original due date, May 17, 2021, in which to file a timely request for refund. The Taxpayer filed his 2020 return in June 2024, after the statute of limitations for claiming a refund for the 2020 taxable year expired.

The Taxpayer explains that he relied on his accountant to file his returns and that he was unaware that his Virginia return had not been filed with his federal and ** (State A) returns. He states that he submitted the Virginia return as soon as he became aware of the omission. It is incumbent upon taxpayers to ensure their tax returns are received by the Department on a timely basis. A taxpayer’s reliance on an accountant to prepare and submit income tax returns, while understandable, does not relieve the taxpayer of the responsibility for ensuring that the return is filed.

Although the Department empathizes with the Taxpayer’s circumstances, the provisions of Virginia Code § 58.1-499 D are clear and do not provide the Department with any discretion in enforcing the three-year limitations period to apply for a refund. As discussed above, the return for the 2020 taxable year was filed outside of the three-year limitations period and, accordingly, the Taxpayer’s request for relief cannot be granted.

The Code of Virginia sections cited are available online at law.lis.virginia.gov. The tax bulletin cited is 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/5103.Y

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