Could Virginia extend the three-year deadline for sales-tax refunds voluntarily overpaid from February 2008 through March 2012?

Subject

Three-year deadline barred older sales-tax refunds

Plain-English summary

Virginia could not refund the older voluntary sales-tax payments after the three-year deadline. The taxpayer timely obtained refunds for April 2012-September 2013 but separately requested special treatment for February 2008-March 2012.

The latest older return's deadline had expired before the May 2015 request. The statute contained no applicable exception, and voluntary tax payments could be recovered only under an authorizing refund statute.

Result: no extension or refund was available for the older periods.

What this means for you

• File amended sales-tax returns before three years from each return's due date.
• A Department conversation does not extend the statutory period.
• Separate each reporting period when calculating deadlines.
• Voluntary payment alone does not create a refund right.

Citations and references

• Va. Code § 58.1-1823(A); 23 VAC 10-210-3040.

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 15-163

Original ruling text

August 18, 2015

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

Dear *:

This is in response to your letter submitted on behalf of * (the "Taxpayer), in which you request a refund of the Virginia retail sales and use tax paid to Virginia for the periods February 2008 through March 2012.

FACTS

The Taxpayer is a service provider. The Taxpayer states that it recently learned that it erroneously filed Virginia Retail Sales and Use Tax Returns, and remitted the tax to the Department, for the period February 2008 through September 2013. The Taxpayer states that it contacted the Department and was instructed that amended returns could be filed going back three years in order to request a refund. The Taxpayer filed amended returns for the periods April 2012 through September 2013 on May 7, 2015 and received a refund on June 8, 2015. The Taxpayer states that on May 7, 2015, it sent a separate letter to the Department requesting special consideration to receive refunds for the periods February 2008 through March 2012. The Taxpayer subsequently received a letter from the Department denying the refund request for this period because the filing deadline had passed. The Taxpayer requests an extension of the statue of limitations period for refunds.

DETERMINATION

Virginia Code § 58.1-1823 A states in pertinent part that "Any person filing a tax return or paying an assessment required for any tax administered by the Department of Taxation may file an amended return with the Department...three years from the last day prescribed by law for the timely filing of the return...."

Title 23 of the Virginia Administrative Code 10-210-3040 states, in pertinent part, that "Refunds cannot be authorized unless the request is made within three years from the due date of the return."

In Commonwealth v. Ferris, Co. , 120 Va. 827, 92 S.E. 804 (June 14, 1917), the Supreme Court of Virginia held that "The general rule is well stated that taxes voluntarily paid cannot be recovered in the absence of a statute providing for their repayment."

In this instance, the three year statute of limitations to file an amended return for refund for the latest period at issue (March 2012) expired on April 20, 2015. Virginia Code § 58.1-1823 does not provide for any exceptions to the three year limitations period other than those stated in the statute, which are not applicable in this case. In accordance with the aforementioned authorities, the Department is not authorized to issue a refund outside of the three-year statute of limitations. Accordingly, the Taxpayer's request for extension of the statute of limitations for refund for the periods February 2008 through March 2012 cannot be granted.

The Code of Virginia and regulation sections cited are available on-line at www.tax.virginia.gov in the Laws, Rules and Decisions 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,

Craig M. Burns
Tax Commissioner

AR/1-6095761583.P