West Virginia State Income Tax Protest and Petition for Reassessment

WEST VIRGINIA STATE INCOME TAX PROTEST AND PETITION FOR REASSESSMENT

TABLE OF CONTENTS

1. Cover Letter to West Virginia Tax Division (Informal Protest)
2. Caption — Office of Tax Appeals
3. Verified Petition for Reassessment
4. Statement of Facts
5. Assignments of Error
6. Legal Argument
7. Relief Requested
8. Verification
9. Power of Attorney and Service
10. Reservation of Rights
11. Notice of Appeal to Circuit Court (Conditional)
12. West Virginia Practice Notes
13. Sources and References

1. COVER LETTER TO WEST VIRGINIA TAX DIVISION (INFORMAL PROTEST)

[DATE]

West Virginia Tax Division
Compliance and Taxpayer Services Division
1001 Lee Street East
Charleston, WV 25301

Re: Informal Protest of Proposed Personal Income Tax Adjustment
Taxpayer: [TAXPAYER NAME]
FEIN/SSN: [XXX-XX-XXXX]
Tax Period(s): [YEAR(S)]
Audit / Letter ID: [________________________________]

Dear Sir or Madam:

This letter constitutes a timely informal protest of the proposed assessment described in the West Virginia Tax Division's letter dated [DATE] (the "Proposed Assessment"). Taxpayer disputes the Proposed Assessment for the reasons set forth below and respectfully requests an informal conference with the assigned auditor and supervisor before any Notice of Assessment is issued.

1. Taxpayer Information. Taxpayer is [INDIVIDUAL / PARTNERSHIP / S-CORP / TRUST] with a domicile / principal place of business at [ADDRESS].

2. Adjustment Disputed. The Proposed Assessment increases West Virginia adjusted gross income by $[AMOUNT] and asserts additional tax of $[AMOUNT], plus interest of $[AMOUNT] and penalties of $[AMOUNT].

3. Grounds for Protest. The Proposed Assessment is incorrect because:
   - [FACTUAL GROUND 1 — e.g., the income at issue was not West Virginia-source income]
   - [FACTUAL GROUND 2 — e.g., the deductions disallowed are substantiated by the records produced]
   - [LEGAL GROUND 3 — e.g., the auditor misapplied W. Va. Code § 11-21-12]

4. Documents Enclosed. [LIST: amended return, federal Schedule, bank statements, etc.]

5. Requested Action. Taxpayer requests that the Tax Division (a) withdraw the Proposed Assessment, (b) reduce the proposed adjustment to $[AMOUNT], or alternatively (c) schedule a closing conference under TSD-450 before issuing a Notice of Assessment.

6. Reservation. This informal protest is without prejudice to Taxpayer's right to file a verified Petition for Reassessment with the West Virginia Office of Tax Appeals within sixty (60) days of any Notice of Assessment under W. Va. Code §§ 11-10-9 and 11-10A-9.

Respectfully,

[________________________________]
[TAXPAYER / REPRESENTATIVE NAME]
[TITLE]
Telephone: [NUMBER] | Email: [EMAIL]

2. CAPTION — OFFICE OF TAX APPEALS

STATE OF WEST VIRGINIA

OFFICE OF TAX APPEALS

DOCKET NO. [________________________________]

VERIFIED PETITION FOR REASSESSMENT
(W. Va. Code §§ 11-10-9 and 11-10A-9)

3. VERIFIED PETITION FOR REASSESSMENT

Petitioner [TAXPAYER NAME], by and through undersigned counsel, pursuant to W. Va. Code §§ 11-10-8, 11-10-9, 11-10A-8, 11-10A-9, and 11-10A-10, and 121 C.S.R. 1 (Procedural Rules of the Office of Tax Appeals), respectfully petitions the West Virginia Office of Tax Appeals ("OTA") for reassessment of the Notice of Assessment described herein, and in support states:

1.1. Petitioner. Petitioner is [an individual / a corporation / etc.] residing or having its principal place of business at [ADDRESS], in [COUNTY] County, West Virginia.

1.2. Respondent. Respondent is the West Virginia State Tax Commissioner, the chief executive officer of the West Virginia Tax Division, with offices at 1001 Lee Street East, Charleston, West Virginia 25301.

1.3. Tax Type. Personal income tax imposed under W. Va. Code § 11-21-1 et seq. (or [OTHER TAX]).

1.4. Tax Periods. Calendar / fiscal year(s) [YEAR(S)].

1.5. Notice of Assessment. The Tax Commissioner issued a Notice of Assessment dated [DATE], Letter ID [________], asserting tax of $[AMOUNT], interest of $[AMOUNT], additions of $[AMOUNT], and penalties of $[AMOUNT], for a total of $[AMOUNT] (the "Assessment"). A true and correct copy of the Notice of Assessment is attached as Exhibit A.

1.6. Date of Service. Petitioner was served with the Notice of Assessment on [DATE].

1.7. Timeliness. This Petition is filed within sixty (60) calendar days of service of the Notice of Assessment as required by W. Va. Code §§ 11-10-9 and 11-10A-9, and is therefore timely.

1.8. Jurisdiction. OTA has subject-matter jurisdiction over this Petition under W. Va. Code § 11-10A-8.

4. STATEMENT OF FACTS

2.1. [BACKGROUND — describe Petitioner's residency / domicile, business activity, source of income at issue.]

2.2. [RETURN AS FILED — describe what was reported on the WV income tax return for the tax periods at issue, including federal AGI starting point and WV-specific modifications under W. Va. Code § 11-21-12.]

2.3. [AUDIT — describe initiation of audit, IDRs issued, records produced, dates of audit conferences, and identity of the auditor.]

2.4. [ADJUSTMENT — describe specifically the adjustment(s) the auditor proposed and the rationale stated by the auditor.]

2.5. [NOTICE OF ASSESSMENT — describe issuance of the Notice and any errors apparent on its face.]

2.6. [INTERVENING EVENTS — federal RAR, amended federal return, refund-claim filings, prior administrative correspondence.]

5. ASSIGNMENTS OF ERROR

Petitioner asserts that the Assessment is erroneous in the following particulars:

3.1. Error No. 1 — [SHORT TITLE]. The Tax Commissioner erred in [SPECIFIC ADJUSTMENT] because [FACTUAL/LEGAL BASIS].

3.2. Error No. 2 — Misclassification of Source Income. The Tax Commissioner erred in classifying $[AMOUNT] as West Virginia-source income; the income was earned [OUTSIDE WV / FROM NON-WV SOURCES] and is not taxable under W. Va. Code § 11-21-32.

3.3. Error No. 3 — Disallowed Deductions / Modifications. The Tax Commissioner erred in disallowing the modifications claimed under W. Va. Code § 11-21-12(c) for [ITEM].

3.4. Error No. 4 — Penalties and Additions. The Tax Commissioner erred in imposing penalties because Petitioner had reasonable cause and acted in good faith within the meaning of W. Va. Code § 11-10-18a.

3.5. Error No. 5 — Statute of Limitations. The Assessment is barred in whole or in part by the three-year limitations period of W. Va. Code § 11-10-15.

3.6. Error No. 6 — Computational Errors. The Assessment contains arithmetic and computational errors set forth in Exhibit B.

6. LEGAL ARGUMENT

4.1. Standard of Review and Burden. OTA hearings are de novo under W. Va. Code § 11-10A-10, and Petitioner bears the burden of proof by a preponderance of the evidence on factual issues; Respondent bears the burden on penalties asserted under W. Va. Code § 11-10-18a once Petitioner makes a prima facie case of reasonable cause.

4.2. Source of Income. Under W. Va. Code § 11-21-32, only income derived from sources within West Virginia is taxable to a nonresident. [APPLY TO FACTS.]

4.3. Statutory Modifications. W. Va. Code § 11-21-12(c) authorizes the modifications claimed because [BASIS].

4.4. Penalty Abatement. Penalties imposed under W. Va. Code § 11-10-18 must be abated where the taxpayer demonstrates reasonable cause and absence of willful neglect; Petitioner satisfies that standard because [FACTS].

4.5. Statute of Limitations. No assessment may be made more than three (3) years after the later of the due date or the filing date of the return, absent fraud or a 25%+ omission of income. W. Va. Code § 11-10-15.

7. RELIEF REQUESTED

WHEREFORE, Petitioner respectfully requests that the Office of Tax Appeals enter an order:

• A. Cancelling the Notice of Assessment in its entirety; or alternatively
• B. Reducing the Assessment to $[AMOUNT] consistent with the corrections set forth herein;
• C. Abating all penalties and additions to tax;
• D. Awarding interest, costs, and attorney's fees to the extent permitted by law; and
• E. Granting such further relief as is just and equitable.

8. VERIFICATION

STATE OF WEST VIRGINIA

COUNTY OF [COUNTY]

I, [TAXPAYER NAME], being first duly sworn, depose and state under oath that I am the Petitioner (or duly authorized officer of Petitioner) in the foregoing Petition; that I have read the foregoing Petition; and that the facts stated therein are true and correct to the best of my knowledge, information, and belief.

[________________________________]

[TAXPAYER NAME / TITLE]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

9. POWER OF ATTORNEY AND SERVICE

A completed West Virginia Tax Division Form WV-2848 (Power of Attorney) authorizing the undersigned to represent Petitioner before the Tax Division and OTA is attached as Exhibit C.

Date: [DATE]

Respectfully submitted,

[LAW FIRM / CPA FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], W.Va. State Bar No. [####]

Counsel for Petitioner

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER] | Email: [EMAIL]

Certificate of Service

I hereby certify that on this [____] day of [_______________], 20[____], a true and correct copy of the foregoing VERIFIED PETITION FOR REASSESSMENT was filed with the West Virginia Office of Tax Appeals, 1900 Kanawha Boulevard, East, Building 3, Suite 100, Charleston, WV 25305, and served upon the West Virginia State Tax Commissioner via certified U.S. mail, return receipt requested, and via email to the Tax Division's Legal Division.

[________________________________]

[ATTORNEY NAME]

10. RESERVATION OF RIGHTS

Petitioner reserves the right to amend or supplement this Petition, to add additional assignments of error, to introduce additional evidence at hearing, and to assert any defense not specifically pleaded above.

11. NOTICE OF APPEAL TO CIRCUIT COURT (CONDITIONAL)

IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA

Civil Action No. [________________________________]

NOTICE OF APPEAL FROM ADMINISTRATIVE DECISION OF THE OFFICE OF TAX APPEALS

Pursuant to W. Va. Code § 11-10A-19, Petitioner-Appellant gives notice of appeal from the administrative decision of the West Virginia Office of Tax Appeals dated [DATE], in OTA Docket No. [____________]. This Notice of Appeal is filed within sixty (60) days after service of the OTA decision and is therefore timely.

The grounds for appeal are set forth in the accompanying Petition for Appeal, including: [GROUNDS].

Date: [DATE]

[________________________________]

[ATTORNEY NAME], W.Va. State Bar No. [####]

Counsel for Petitioner-Appellant

12. WEST VIRGINIA PRACTICE NOTES

• 60-day jurisdictional deadline. A petition for reassessment must be filed with OTA within sixty (60) calendar days of service of the Notice of Assessment. W. Va. Code §§ 11-10-8, 11-10-9, 11-10A-9. Late filings are routinely dismissed for want of jurisdiction; OTA has consistently held that the deadline cannot be equitably tolled.
• Office of Tax Appeals — basics. OTA is an independent administrative agency separate from the Tax Division. It began operations January 1, 2003, and its proceedings are governed by W. Va. Code §§ 11-10A-1 et seq. and 121 C.S.R. 1. Hearings are de novo; the taxpayer ordinarily bears the burden of proof.
• Form of petition. Petitions must be in writing, verified under oath, and must attach the Notice of Assessment (or denied refund letter) being appealed. The petition must contain assignments of error stated with particularity. 121 C.S.R. 1, § 4.
• Filing — addresses. OTA: 1900 Kanawha Boulevard, East, Building 3, Suite 100, Charleston, WV 25305. The petition is filed with OTA, with a copy served on the Tax Commissioner. Filing fees are nominal but should be confirmed against current OTA schedule.
• Power of attorney. Form WV-2848 is required for any representative filing or appearing on behalf of the taxpayer. OTA will accept copies; original signatures are not required for OTA business.
• Discovery and prehearing. OTA conducts proceedings under the contested-case provisions of W. Va. Code § 29A-5. Discovery is limited and largely by leave; subpoenas issue under § 11-10A-12.
• Hearing scheduling. OTA assigns a hearing date and notifies parties at least twenty (20) days in advance; hearings are typically scheduled within forty-five (45) days of the Tax Commissioner's answer due date, subject to continuance for good cause. W. Va. Code § 11-10A-10.
• Decision and judicial review. OTA must issue a written decision generally within six months after submission. Either party may appeal to the Circuit Court of Kanawha County (or the circuit court of the county where the taxpayer resides or maintains its principal place of business, as provided in § 11-10A-19) within sixty (60) days of service of the decision.
• Payment of disputed tax. Filing a petition does NOT automatically stay collection of all tax. Interest continues to accrue under W. Va. Code § 11-10-17. Counsel should evaluate whether to pay-and-protest under W. Va. Code § 11-10-14 and pursue a refund claim parallel track.
• Statute of limitations on assessment. Three (3) years from the later of due date or filing under W. Va. Code § 11-10-15; six (6) years where there is an omission of more than 25% of gross income; unlimited for fraud or failure to file.
• Federal RAR adjustments. Taxpayer must report federal RAR changes to the WV Tax Division within 90 days under W. Va. Code § 11-21-77; failure to do so extends the WV statute of limitations.
• Innocent spouse / equitable relief. West Virginia generally conforms to federal innocent-spouse principles; raise the issue affirmatively in the petition.

13. SOURCES AND REFERENCES

• W. Va. Code Ch. 11, Art. 10 (Procedure and Administration) — https://code.wvlegislature.gov/11-10/
• W. Va. Code Ch. 11, Art. 10A (Office of Tax Appeals) — https://code.wvlegislature.gov/11-10A/
• W. Va. Code Ch. 11, Art. 21 (Personal Income Tax) — https://code.wvlegislature.gov/11-21/
• 121 C.S.R. 1 — OTA Procedural Rules — https://taxappeals.wv.gov/SiteCollectionDocuments/Procedural%20Rules.pdf
• WV Office of Tax Appeals — https://taxappeals.wv.gov/
• WV Tax Division (forms, TSD bulletins) — https://tax.wv.gov/
• TSD-4 — Taxpayer Bill of Rights — https://tax.wv.gov/Documents/TSD/tsd4.pdf
• TSD-450 — Audits — https://tax.wv.gov/Documents/TSD/tsd450.pdf
• Form WV-2848 — Power of Attorney — https://tax.wv.gov/

Disclaimer: This template is provided for informational purposes only and does not constitute legal or tax advice. A West Virginia-licensed tax attorney must review and customize this document before filing. Statutory deadlines are jurisdictional. Verify all citations and current OTA procedures before use.