Was a Virginia consumer use-tax appeal timely when the letter was dated one day after the 90-day deadline?

Subject

Consumer use-tax appeal was filed one day late

Plain-English summary

Virginia barred the consumer use-tax appeal because it was dated one day after the stated deadline. The assessment was dated June 18, 2008. Under the 90-day period quoted in the ruling, the taxpayer had through September 16 to apply for relief, but the protest letter was dated September 17.

The Commissioner therefore did not reach the substantive appeal. Even so, audit staff were instructed to review the report and remove any duplicate items before the updated bill was issued.

What this means for you

• A one-day delay can eliminate administrative review of the underlying tax dispute.
• Calculate the deadline from the assessment date under current rules and leave time for delivery.
• Preserve dated submission and mailing evidence.
• Obvious duplicate audit entries may still warrant correction even when a formal appeal is late.

Common questions

What was the deadline?

September 16, 2008.

When was the appeal letter dated?

September 17, 2008.

Did all audit adjustments automatically stand?

The formal appeal was barred, but audit staff still had to remove verified duplicates.

Citations and references

• Va. Code § 58.1-1821.
• Administrative Appeal Guidelines.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 09-5

Original ruling text

February 4, 2009

Re: § 58.1-1821 Application: Retail Sales and Use Tax

Dear *:

This letter is in response to the letter filed by you on behalf of * (the "Taxpayer"), in which you protest the assessment of consumer use tax issued for the period April 2002 through March 2006.

Virginia Code § 58.1 1821 provides 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." [Emphasis added.] In this case, the use tax assessment issued to the Taxpayer was dated June 18, 2008. The Department's records indicate the Taxpayer's administrative appeal letter is dated September 17, 2008. Pursuant to the provisions of Va. Code § 58.1-1821, the Taxpayer was required to file its administrative appeal with the Tax Commissioner no later than September 16, 2008. Therefore, the Taxpayer's application for correction is barred by the statue of limitations. Notwithstanding this determination, the audit staff will review the audit report and remove any duplicate items.

An updated bill, with interest accrued to date, will be sent to the Taxpayer. No additional interest will accrue provided the outstanding balance is paid within 30 days from the date of the bill. The Taxpayer should remit its payment to: Virginia Department of Taxation, 3600 West Broad Street, Suite 160, Richmond, Virginia 23230, Attention: *. If you have any questions concerning payment of the assessment, you may contact at **.

The Code of Virginia section cited and the Administrative Appeal Guidelines are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions about this response, you may contact * in the Department's Office of Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Janie E. Bowen

Tax Commissioner

AR/1-2753794350.T