State Tax Ruling

Plain-English summary

The Virginia Tax Commissioner denied a taxpayer's request to correct an individual income tax assessment for the 2010 tax year, because the taxpayer's appeal was filed far too late. Virginia law gives a taxpayer only 90 days from the date an assessment is mailed to file an administrative appeal with the Tax Commissioner under Va. Code § 58.1-1821. Here, the Department assessed the tax on January 16, 2014, which made the appeal deadline April 14, 2014 — but the taxpayer did not file an appeal until May 1, 2020, more than six years late.

The underlying dispute arose because the IRS had told Virginia that the taxpayer may have needed to file a Virginia return for 2010. When the Department asked the taxpayer to verify his filing obligation and got no response, it issued an assessment. The taxpayer eventually appealed, arguing he was not working and had no Virginia filing requirement for that year. The Commissioner never reached that underlying merits question, however, because the appeal itself was untimely.

Because the assessment date controls the 90-day clock under Va. Code § 58.1-1821, and Va. Code § 58.1-1820 confirms an assessment is "made" when notice is mailed to the taxpayer's last known address, the Commissioner ruled the appeal was barred by the statute of limitations. The result: the 2010 assessment remains due and payable, regardless of whether the taxpayer's factual argument about not owing the tax might otherwise have had merit.

What this means for you

Individual taxpayers who receive a Virginia assessment

If you disagree with a Virginia individual income tax assessment, you must file a complete administrative appeal with the Tax Commissioner within 90 days of the date the assessment notice was mailed to your last known address. Missing that window — even by a long stretch, as happened here — means the Commissioner cannot consider the merits of your dispute, no matter how strong your factual argument might be.

Business owners and accountants

The same 90-day rule under Va. Code § 58.1-1821 and 23 VAC 10-20-165 applies to any tax administered by the Department, not just individual income tax. Track assessment notice dates carefully for clients, since the clock runs from mailing to the last known address on file with the Department, not from when the taxpayer actually opens the mail or otherwise learns of the assessment.

Tax professionals handling late or lapsed appeals

This ruling illustrates that the statute of limitations is a threshold, jurisdictional-style bar: the Commissioner did not evaluate the taxpayer's underlying claim (that he had no Virginia filing obligation in 2010) at all once the appeal was found untimely. If a client's appeal window has already closed, an administrative appeal under § 58.1-1821 is unlikely to succeed regardless of the substantive facts.

Common questions

Q: How long do I have to appeal a Virginia tax assessment?
A: Under Va. Code § 58.1-1821, you generally have 90 days from the date the Department mails the assessment notice to your last known address to file a complete administrative appeal with the Tax Commissioner.

Q: Did the Commissioner decide whether the taxpayer actually owed the tax?
A: No. The ruling did not reach that question. It resolved the case entirely on timeliness grounds, finding the appeal was filed more than six years after the deadline, so the assessment stands regardless of the taxpayer's factual arguments.

Q: What happens if my appeal is filed after the 90-day deadline?
A: Based on this ruling, a late appeal will be barred by the statute of limitations, and the assessment will remain due and payable. The Commissioner did not identify any exception applied in this case.

Q: When is a Virginia assessment considered "made" for purposes of the deadline?
A: Va. Code § 58.1-1820 provides that an assessment is deemed made when the Department mails written notice to the taxpayer's last known address — that mailing date is what starts the 90-day clock.

Citations and references

Statutes and regulations:

• Va. Code § 58.1-1821 (90-day deadline to apply for correction of an assessment)
• Va. Code § 58.1-1820 (assessment deemed made when notice is mailed to taxpayer's last known address)
• 23 VAC 10-20-165 (administrative appeal procedures)

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 20-179

Original ruling text

October 13, 2020

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will reply to your letter in which you seek correction of the individual income tax assessment issued to * (the “Taxpayer”) for the taxable year ended December 31, 2010.

FACTS

The Department received information from the Internal Revenue Service (IRS) indicating that the Taxpayer may have been required to file a Virginia individual income tax return for the 2010 taxable year. The Department requested information to verify whether the Taxpayer was subject to Virginia income tax. When a response was not received, the Department issued an assessment. The Taxpayer appealed, contending he was not working and was not required to file a Virginia income tax return for the 2010 taxable year.

DETERMINATION

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 Tax Commissioner. Such application shall be in the form prescribed by the Department and shall fully set forth the grounds upon which the taxpayer relies and all facts relevant to the taxpayer’s contention.” Pursuant to Virginia Code § 58.1-1821 and Title 23 of the Virginia Administrative Code (VAC) 10-20-165, a complete appeal must be filed with the Department within 90 days from the date of assessment. In addition, Virginia Code § 58.1-1820 provides that assessments made by the Department are deemed to be made when a written notice of assessment is mailed to a taxpayer at his last known address.

In this case, the Department issued the assessment on January 16, 2014. Based on the provisions of Virginia Code § 58.1-1821, the Taxpayer was required to file an administrative appeal by April 14, 2014. The Taxpayer did not file an appeal until May 1, 2020. Therefore, the Taxpayer’s appeal application pursuant to Virginia Code § 58.1-1821 is barred by the statute of limitations. Accordingly, the assessment remains due and payable.

The Code of Virginia sections and regulations cited are available on-line at www.tax.virginia.gov in the Laws, Rules & Decisions section of the Department’s web site. If you have any questions regarding this determination, you may contact * in the Office of Tax Policy, Appeals and Rulings, at ***.

Sincerely,

Craig M. Burns

Tax Commissioner

AR/3404.A