Can I get a Virginia tax determination reconsidered if I missed the 45-day deadline, or if I claim I never received the original assessment notice?

Plain-English summary

In an earlier ruling (P.D. 23-35), the Department found that a couple's application to correct their 2018 and 2019 income tax assessments was filed too late under the statute of limitations. The couple asked the Tax Commissioner to reconsider that determination, arguing it was based on inaccurate facts because they never actually received the original assessment notices, which had been mailed on March 12, 2021.

The Department rejected the reconsideration request on two independent grounds. First, and dispositive on its own: a reconsideration request must be filed within 45 days of the final determination, and this one was filed on June 26, 2023 -- well past that window, so it was barred without even reaching the merits. Second, even looking at the merits, the Department explained that Virginia law only requires an assessment to be mailed to the taxpayer's last known address to be valid; it doesn't require proof the taxpayer actually received it. Since the Department's records showed proper mailing on March 12, 2021, the original 90-day appeal clock started then regardless of whether the couple's mail actually reached them. P.D. 23-35 was upheld as the Department's final determination, with interest continuing to accrue on the unpaid balance.

What this means for you

If you disagree with a final determination

You have only 45 days from a Tax Commissioner's final determination to request reconsideration under 23 VAC 10-20-165 F. Miss that window and your reconsideration request is barred outright -- the Department won't even reach whether your underlying argument has merit.

If you claim you never received an assessment notice

Not receiving a mailed notice, by itself, does not restart your appeal deadline. Virginia's rule is that an assessment is legally "made" when it's mailed to your last known address on file with the Department -- so keeping your address current with the Department (and with the IRS, since Virginia often gets addresses from federal data) is the practical way to make sure you actually see assessments when they're issued.

Accountants and tax professionals

This ruling is a clean two-layer illustration: a procedural timeliness bar (the 45-day reconsideration window) that ends the inquiry on its own, plus a substantive point (mailing to last known address, not actual receipt, satisfies Va. Code § 58.1-1820) that would have defeated the claim anyway even if it had been timely. When advising a client who missed a notice, check the address-of-record issue early -- it's often the real problem, not the merits of the underlying tax dispute.

Common questions

Q: How long do I have to ask for reconsideration of a final determination?
A: 45 days from the date of the Tax Commissioner's final determination, under 23 VAC 10-20-165 F.

Q: What if I never received the original assessment because it went to an old address?
A: The Department's duty is to mail the assessment to your last known address on file; if it does that, the assessment is valid even if you never actually received it. Keep your address current with the Department to avoid this problem.

Q: Does missing a deadline mean I automatically lose, even if I'm right on the facts?
A: In this case, yes -- the missed 45-day reconsideration deadline was enough to bar the request on its own, and the Department noted the underlying facts didn't support the taxpayer's position anyway.

Q: Does this ruling apply to my situation?
A: Not automatically. This is a published ruling based on this taxpayer's specific facts and the law as it stood in 2023; your deadlines and mailing history may differ.

Citations and references

• 23 VAC 10-20-165 F (45-day deadline for reconsideration requests)
• Va. Code § 58.1-1820 (assessment deemed made upon mailing to last known address)
• Va. Code § 58.1-1821 (90-day limitations period for appeals)
• P.D. 85-155, P.D. 18-35, P.D. 22-18 (mailing to last known address satisfies Department's duty)
• P.D. 23-35 (the underlying determination reconsideration was sought against)

Source

• Landing page: Virginia Laws, Rules & Decisions
• Ruling: P.D. 23-111

Original ruling text

October 19, 2023

Re: § 58.1-1821 Application: Individual Income Tax

Dear *:

This will respond to your letter submitted on behalf of your clients, * (the “Taxpayers”), in which you seek a reconsideration of the Tax Commissioner’s determination, issued as Public Document (P.D.) 23-35 (4/5/2023).

FACTS

In P.D. 23-35, the Department concluded that the Taxpayers’ application for correction of the assessments issued for the taxable years ended December 30, 2018, and December 31, 2019, was barred by the statute of limitations. The Taxpayers contend that the determination was based on an inaccurate statement of the facts because they did not receive the original assessments that were issued on March 12, 2021.

DETERMINATION

Under Title 23 of the Virginia Administrative Code (VAC) 10-20-165 F, a taxpayer who disagrees with the Tax Commissioner’s final determination may request a reconsideration of the determination within 45 days. The Taxpayers’ request for reconsideration is dated June 26, 2023, after the 45-day period expired. The Taxpayers’ appeal is thus barred from further review.

Even if the Taxpayers’ reconsideration request had been timely, P.D. 23-35 was not based on an inaccurate statement of the facts. 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 their last known address. The Department’s records indicate that the assessments at issue were mailed to the Taxpayers’ last known address on March 12, 2021. While it is unfortunate that the Taxpayers failed to receive the assessments, the Department fulfilled its statutory obligation by mailing the assessments to their last known address. See, e.g ., P.D. 85-155 (7/29/1985), P.D. 18-35 (3/26/2018), and P.D. 22-18 (1/25/2022). Accordingly, P.D. 23-35 correctly determined that the original appeal was not made within the 90-day limitations period provided in Virginia Code § 58.1-1821.

For the reasons discussed above, P.D. 23-35 is upheld. This letter constitutes the Department’s final determination regarding the assessments for the 2018 and 2019 taxable years. The Taxpayers will receive an updated bill that will include accrued interest to date. The Taxpayers should remit the balance due within 30 days of the bill date to avoid the accrual of additional interest and possible collection actions.

The Code of Virginia sections, regulation, and public documents cited are available online at www.tax.virginia.gov in the Laws, Rules, & Decisions section of the Department’s website. 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/4606.X

Related Documents

85-155

18-35

22-18

23-35