Tax Audit Protest and Appeal — West Virginia

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Tax Audit Protest and Appeal (WEST VIRGINIA)

Quick-Reference Summary

Part A — Informal Conference Request Letter (Pre-OTA Petition)

[TAXPAYER / FIRM NAME]
[________________________________]
[Street Address]
[________________________________]
[City], West Virginia [ZIP]
Telephone: [________________________________]
Email: [________________________________]
WV Tax Account No. / FEIN / SSN: [____________]
WV State Bar No.: [____________] (if attorney)

Date: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

TO:
West Virginia Tax Division
[Audit or Compliance Bureau]
[Auditor Name, Title]
P.O. Box 11514
Charleston, WV 25339-1514

RE: Request for Audit Closing / Informal Conference (Pre-Assessment)
Taxpayer: [TAXPAYER LEGAL NAME]
WV Tax Account No.: [____________]
Audit Case No.: [____________]
Tax Type: ☐ Personal Income Tax (§ 11-21) ☐ Corporate Net Income Tax (§ 11-24) ☐ Consumers Sales & Service Tax (§ 11-15) ☐ Use Tax (§ 11-15A) ☐ Severance Tax (§ 11-13A) ☐ Withholding ☐ Other: [____________]
Period(s): [__/__/____] – [__/__/____]
Proposed Adjustment: Tax $[__________] / Penalty $[__________] / Interest $[__________] / Total $[__________]

Dear [Auditor Name]:

Pursuant to the audit-closing procedure of the West Virginia Tax Division, Taxpayer respectfully requests an informal closing conference to discuss the proposed adjustments set out in the [Preliminary Audit Report / Notice of Proposed Adjustments] dated [__/__/____] prior to issuance of a Notice of Assessment under W. Va. Code § 11-10-7.

1. Items in Dispute.

2. Taxpayer's Position Summary.
[________________________________________________________________________
________________________________________________________________________]

3. Documentation Offered. ☐ Resale/exempt-use certificates; ☐ federal Forms 1040/1120/1120S/1065; ☐ apportionment workpapers (Form CNF-120APT); ☐ general ledger; ☐ bank statements; ☐ ☐ severance-tax exemption documentation; ☐ other: [____________].

4. Preservation of Rights. This request does not waive or extend the 60-day petition deadline under W. Va. Code § 11-10A-9 once a Notice of Assessment is issued. Taxpayer reserves all rights to file a timely petition with the OTA.

5. Availability. Counsel and taxpayer representatives are available [__________________________________].

Respectfully,

[________________________________]
[Name, Title]

Part B — Formal Protest / Petition to Office of Tax Appeals

BEFORE THE OFFICE OF TAX APPEALS
STATE OF WEST VIRGINIA

OTA Docket No. [TO BE ASSIGNED]

PETITION FOR REASSESSMENT / APPEAL
(W. Va. Code §§ 11-10A-8 and 11-10A-9)

TO:
West Virginia Office of Tax Appeals
P.O. Box 2751
Charleston, WV 25330-2751
Physical: 1012 Kanawha Boulevard East, Suite 300, Charleston, WV 25301

Date Filed (postmark or hand delivery to OTA controls): [__/__/____]

I. Petitioner Identification

1. Name: [TAXPAYER LEGAL NAME]
2. Entity Type: [Individual / Sole Proprietor / Partnership / LLC / S corp / C corp / Trust]
3. Address: [____________________________]
4. WV Tax Account No. / FEIN / SSN: [____________]
5. Telephone / Email: [____________] / [____________]
6. Counsel (REQUIRED for entities past settlement, § 11-10A-15): [Name, WV Bar No., Firm, Address, Phone, Email]

II. Decision of Tax Commissioner Being Appealed (Attach as Exhibit 1)

7. Document Type: ☐ Notice of Assessment (§ 11-10-7) ☐ Notice of Refund Denial (§ 11-10-14) ☐ Notice of Credit Denial ☐ License Denial/Revocation Order ☐ Other final decision: [____________]
8. Date Document Issued: [__/__/____]
9. Date Document Received by Petitioner: [__/__/____]
10. Document Number / Letter ID: [____________]
11. Tax Type and Statute: [Personal Income Tax (Ch. 11, Art. 21) / Corporate Net Income (Art. 24) / Consumers Sales & Service (Art. 15) / Use (Art. 15A) / Severance (Art. 13A) / Other]
12. Tax Period(s): [__/__/____] – [__/__/____]
13. Amount(s) Asserted: Tax $[__________] / Additions $[__________] / Penalty $[__________] / Interest $[__________] / Total $[__________]
14. Timeliness Statement: This Petition is filed (postmarked or hand-delivered) within 60 days of Petitioner's receipt of the document being appealed and is therefore timely under W. Va. Code § 11-10A-9(b).

III. Nature of the Case (§ 11-10A-9(a)(1))

15. [Summarize in one or two paragraphs: who Petitioner is, what was assessed/denied, why Petitioner contests it, and what relief is sought.]

IV. Facts on Which the Appeal Is Based (§ 11-10A-9(a)(2))

16. Fact 1: [____________________________]
17. Fact 2: [____________________________]
18. Fact 3: [____________________________]
19. Fact 4: [____________________________]
20. Fact 5: [____________________________]
21. (Add additional numbered paragraphs as needed.)

V. Each Question Presented for Review (§ 11-10A-9(a)(3))

22. Question 1: Whether the Tax Commissioner erred in [____________].
23. Question 2: Whether [____________] qualifies for exemption/exclusion under W. Va. Code § 11-[__-__].
24. Question 3: Whether the assessment is barred in whole or in part by the statute of limitations in W. Va. Code § 11-10-15.
25. Question 4: Whether penalties should be abated for reasonable cause under W. Va. Code § 11-10-18.
26. Question 5: Whether [constitutional / commerce clause / due process / equal protection] principles bar the assessment in whole or in part.

VI. Relief Requested

27. WHEREFORE Petitioner respectfully prays that the Office of Tax Appeals:

A. Cancel the Notice of Assessment / Refund Denial in its entirety, or in the alternative reduce the assessment by $[__________];
B. Order refund of $[__________] under W. Va. Code § 11-10-14;
C. Abate all penalties for reasonable cause (§ 11-10-18) and additions to tax;
D. Adjust interest in conformity with the adjusted tax;
E. Set the matter for status conference and, if necessary, hearing in Charleston;
F. Grant such other relief as is just and proper.

Dated: [__/__/____]

[________________________________]
[Counsel or Pro Se Petitioner]
WV Bar No. [____________] (if attorney)
[Firm Name]
[Address]
[Phone] · [Email]

Certificate of Service: I certify that on [__/__/____] a copy of this Petition has been served on the West Virginia Tax Commissioner, Tax Account Administration Division, P.O. Box 11514, Charleston, WV 25339-1514, by certified mail.

ATTACHMENTS

• Exhibit 1 — Notice of Assessment / decision being appealed
• Exhibit 2 — Power of Attorney (Form WV/IT-104.1 or equivalent)
• Exhibit 3 — Audit workpapers / federal returns / state returns
• Exhibit 4 — Resale / exempt-use certificates and supporting documentation

Part C — Appeal Cover Letter to Circuit Court (Post-OTA Decision)

C-1. Petition for Appeal from OTA Final Decision

IN THE CIRCUIT COURT OF [______] COUNTY, WEST VIRGINIA
(or Kanawha County under § 11-10A-19)

Civil Action No. [TO BE ASSIGNED]
OTA Docket No.: [____________]

PETITION FOR APPEAL OF OFFICE OF TAX APPEALS DECISION
(W. Va. Code § 11-10A-19; W. Va. Code § 29A-5-4)

Petitioner [NAME], by counsel, pursuant to W. Va. Code § 11-10A-19 and the State Administrative Procedures Act (§ 29A-5-4), petitions this Court for review of the Final Decision of the Office of Tax Appeals and states:

1. Parties and Venue. Petitioner [resides / has its principal place of business] in [______] County, West Virginia. Venue is proper in this Court under W. Va. Code § 11-10A-19. [Alternatively: Venue is proper in Kanawha County under § 11-10A-19.]

2. Decision Appealed From. Final Decision of the Office of Tax Appeals dated [__/__/____] in OTA Docket No. [____________], a copy of which is attached as Exhibit A.

3. Timeliness. This Petition is filed within 60 days of the OTA Final Decision and is timely under W. Va. Code § 11-10A-19.

4. Bond / Payment. Concurrently with this Petition, Petitioner has [☐ paid all tax, additions, and interest assessed; ☐ posted bond in the amount of $[__________] with sureties acceptable to the Court, as required by W. Va. Code § 11-10A-19].

5. Statement of Errors (§ 29A-5-4(g)). The Final Decision is:

a. In violation of constitutional or statutory provisions;
b. In excess of statutory authority or jurisdiction of the agency;
c. Made upon unlawful procedure;
d. Affected by other error of law;
e. Clearly wrong in view of the reliable, probative, and substantial evidence on the whole record; and/or
f. Arbitrary or capricious or characterized by abuse of discretion.

6. Specific Issues.

a. [____________________________]
b. [____________________________]
c. [____________________________]

7. Relief Requested. Reversal of the OTA Final Decision; redetermination of tax liability at $[__________]; abatement of penalties; refund of $[__________] with interest; costs; such other and further relief as is just.

Dated: [__/__/____]

[________________________________]
[Counsel Name], WV Bar No. [____________]
[Firm], [Address], [Phone], [Email]

Certificate of Service: Served on the West Virginia Tax Commissioner, the Office of Tax Appeals, and the West Virginia Attorney General by certified mail on [__/__/____].

Part D — Pre-Filing Checklist

Critical Deadlines

☐ 60-day OTA petition deadline from RECEIPT of the appealable document (W. Va. Code § 11-10A-9(b)). This deadline cannot be extended absent extremely rare circumstances.
☐ 60-day circuit-court appeal deadline from OTA Final Decision (§ 11-10A-19).
☐ 3-year / 5-year / unlimited SOL on assessment (§ 11-10-15).
☐ Refund claim: 3 years from due date or 2 years from payment, whichever later (§ 11-10-14).

Threshold Decisions

☐ Confirm that the document being appealed is appealable (Notice of Assessment, refund/credit denial, license action, or other Tax Commissioner decision under § 11-10A-8). Distinguish from a statement of account (not appealable).
☐ When in doubt about appealability, file — OTA jurisdictional question can be addressed later. The 60-day deadline is unforgiving.
☐ Property tax appeal? Use the OTA "Petition for Property Tax Appeal" form at taxappeals.wv.gov — not this petition form.

Petition Content (§ 11-10A-9(a))

☐ Petitioner identification (name, address, WV account no., contact info, counsel).
☐ Identification of the Tax Commissioner document being appealed (type, date, document number).
☐ Nature of the case stated succinctly.
☐ Facts on which the appeal is based.
☐ Each question presented for review.
☐ Attach the Notice of Assessment (or other appealable document) as an exhibit.
☐ Verification not statutorily required, but recommended.
☐ Power of Attorney for representative.

Filing

☐ Mail to OTA, P.O. Box 2751, Charleston, WV 25330-2751 OR hand-deliver to 1012 Kanawha Blvd. East, Suite 300, Charleston, WV 25301 via Certified Mail RRR. "Filed" = postmarked or received at OTA office (§ 11-10A-9(b)).
☐ Serve a copy on the Tax Commissioner.
☐ Retain Form 3811 / tracking number.

Settlement and Hearing Stage

☐ Comply with OTA telephonic status conference scheduling (substantial work is done by phone).
☐ Engage in settlement discussions with assigned Tax Department counsel.
☐ If entity petitioner (corporation, LLC, partnership): retain WV-licensed attorney for any proceedings past settlement (§ 11-10A-15; UPL).
☐ Marshal documentary evidence: federal/state returns, audit workpapers, exemption certificates, contracts.
☐ Identify expert witnesses (accountant, valuation expert, industry expert) if needed.

Appeal of OTA Decision

☐ Compute 60-day circuit-court deadline from OTA Final Decision (§ 11-10A-19).
☐ Pay all tax + interest assessed OR post bond as condition precedent to circuit-court review (§ 11-10A-19).
☐ Choose venue: taxpayer's residence/PPB county or Kanawha County.
☐ File Petition for Appeal with circuit court; serve Tax Commissioner, OTA, and Attorney General.
☐ Designate administrative record; order transcript.
☐ Calendar onward appeal: Circuit Court → Intermediate Court of Appeals of WV → WV Supreme Court of Appeals (W. Va. R. App. P. 5).

Sources and References

• W. Va. Code § 11-10A-8 (OTA jurisdiction) — https://codes.findlaw.com/wv/chapter-11-taxation/wv-code-sect-11-10a-8/
• W. Va. Code § 11-10A-9 (Petition; 60 days) — https://code.wvlegislature.gov/11-10A-9/
• W. Va. Office of Tax Appeals — https://www.taxappeals.wv.gov
• OTA Petition for Reassessment instructions (PDF) — https://tax.wv.gov/documents/ota/petitionforreassessment4.ota.pdf
• W. Va. Code Chapter 11 (Taxation) — https://code.wvlegislature.gov/11/
• W. Va. Code § 29A-5-4 (Administrative Procedures Act — judicial review) — https://code.wvlegislature.gov/29A-5-4/
• W. Va. Tax Division — https://tax.wv.gov/
• W. Va. Tax Procedure & Administration Act (§ 11-10-1 et seq.) — https://code.wvlegislature.gov/11-10/
• W. Va. Intermediate Court of Appeals — appellate jurisdiction over tax matters — https://www.courtswv.gov/intermediate-court/about
• 110 W. Va. C.S.R. § 10A (OTA Rules of Procedure) — https://apps.sos.wv.gov/adlaw/csr/series.aspx?agency=110