Could taxpayers reopen a 2004-2006 residency determination after the 45-day reconsideration deadline or appeal 2007-2009 assessments after 90 days?

Plain-English summary

The taxpayers missed both administrative deadlines, so Virginia did not revisit their residency arguments. A July 12, 2010 final determination had held the husband domiciled in Virginia for 2004 through 2006. A reconsideration request had to arrive within 45 days and satisfy one of the regulation's specified grounds. The May 13, 2011 request was too late.

Virginia issued the 2007 assessment on December 8, 2010 and the 2008-2009 assessments on December 9. An assessment appeal had to be filed within 90 days. Even measured from the most recent assessment, the deadline was March 9, 2011, before the May appeal.

The 2004-2009 assessments remained due and payable.

Common questions

Q: How long did the taxpayers have to seek reconsideration of the final determination?
A: Forty-five days.

Q: How long did they have to appeal the later assessments?
A: Ninety days from each assessment date.

Citations and references

• Va. Code §§ 58.1-1821 and 58.1-1822.
• 23 VAC 10-20-165(F).
• Virginia Public Document 10-134 (July 12, 2010).

Subject

Administrative appeal not timely filed

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 12-139

Original ruling text

August 28, 2012

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will reply to your letter in which you seek reconsideration of the Department's determination letter issued as Public Document (P.D.) 10-134 (7/12/2010) to * (the "Taxpayers") for the taxable years ended December 31, 2004 through 2006. The Taxpayers, a husband and a wife, also appeal assessments issued for the taxable years ended December 31, 2007 through 2009. I apologize for the delay in responding to your letter.

FACTS

In P.D. 10-134, the Department determined that the husband was a domiciliary resident of Virginia for the 2004 through the 2006 taxable years. At the request of the Department, the Taxpayers filed joint individual income tax returns in December 2010 as Virginia residents for the 2007 through 2009 taxable years. No payments were made with these returns and assessments were issued.

The Taxpayers appeal the assessments, contending the husband was neither an actual nor a domiciliary resident of Virginia for the 2004 through 2009 taxable years.

DETERMINATION

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.] Title 23 of the Virginia Administrative Code (VAC) 10-20-165 provides additional requirements regarding the timely filing of administrative appeals. This regulation provides information to taxpayers about the process for appealing tax assessments, including how to file a complete and timely administrative appeal.

2004 through 2006 Taxable Years

Title 23 VAC 10-20-165 F provides that a taxpayer who disagrees with the Tax Commissioner's final determination issued pursuant to Va. Code § 58.1-1822 may request a reconsideration of the determination. In order for the Tax Commissioner to grant a request for reconsideration, the request must be received by the Department not later than 45 days after the date of the determination letter, and the taxpayer must meet one of four specific requirements set forth in that section.

The Department's determination letter for the 2004 through 2006 taxable years was issued July 12, 2010. See P.D. 10-134. The Taxpayers' request for reconsideration was not filed until May 13, 2011. As such, the Taxpayers failed to file their request for reconsideration within the 45-day limitations period. Accordingly, the Taxpayers' request for redetermination concerning whether husband was domiciliary resident of Virginia for the 2004 though 2006 taxable years is denied, and the assessments remain due and payable.

2007 through 2009 Taxable Years

The assessment for the 2007 taxable year was issued on December 8, 2010. The assessments for the 2008 and 2009 taxable years were issued on December 9, 2010. The Taxpayers appealed the assessments by letter dated May 13, 2011.

The 90-day limitations period for filing an appeal for the 2007 through 2009 taxable years under the provisions of Va. Code § 58.1-1821 expired on March 9, 2011 for the most recent assessment, well before the appeal was filed. As such, the Taxpayers' administrative appeal for the 2007 through 2009 taxable years is barred by the limitations period in Va. Code § 58.1-1821. Accordingly, the assessments remain due and payable.

The Code of Virginia sections, regulation and public document cited are available on­line 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, please contact * in the Office of Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/1-4776130367.E