Was a Virginia sales-tax appeal timely when the taxpayer faxed it two days after the 90-day deadline?

Plain-English summary

Virginia dismissed the appeal because the fax arrived two days after the 90-day deadline. The assessment was issued February 1, 2012, so the complete administrative appeal had to be filed by May 1.

For a facsimile appeal, the regulation required the document to be both dated and received on or before the 90th calendar day. The taxpayer transmitted the appeal on May 3, and the Department received it that day.

The late filing barred Tax Commissioner review. The assessment was deemed correctly issued without a decision on the underlying sales-tax dispute.

Common questions

Q: Was the fax transmission date enough by itself?
A: No. It also had to be received by the deadline, and both events occurred on May 3.

Q: Did Virginia decide the substantive audit issues?
A: No. The limitations ruling ended the appeal procedurally.

Citations and references

• Va. Code § 58.1-1821.
• 23 VAC 10-20-165(C), (C)(4).

Subject

Taxpayer's appeal to the Tax Commissioner is barred by the statute of limitations

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 12-97

Original ruling text

June 13, 2012

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

Dear *:

This is in response to your correspondence in which you seek correction of the retail sales and use tax assessment issued to * (the "Taxpayer") for the period of November 2003 through November 2006.

Virginia Code § 58.1-1821 states, "Any 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 Department and shall fully set forth the grounds upon which the taxpayer relies and all facts relevant to the taxpayer's contention."

The retail sales and use tax assessment cited in the Taxpayer's application for correction was issued on February 1, 2012. According to Va. Code § 58.1-1821 and Title 23 of the Virginia Administrative Code (VAC) 10-20-165 C, a complete appeal was required to be filed with the Tax Commissioner within 90 days of the date of assessment, or by May 1, 2012.

Pursuant to Title 23 VAC 10-20-165 C 4, an administrative appeal that is delivered to the Department via facsimile "must be dated and received on or before the 90 th calendar day after the date of assessment to be considered timely filed." [Emphasis added.] The Taxpayer's application for correction was sent by facsimile with a transmission date of May 3, 2012, and was received on that same date. Because the appeal was not dated and received on or before the 90 th calendar day after the date of assessment ( i.e. , by May 1, 2012), the Taxpayer's appeal to the Tax Commissioner is barred by the statute of limitations and the assessment is deemed to be correctly issued.

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

Sincerely,

Craig M. Burns

Tax Commissioner

AR/1-5084584581.M