Tax Type
Consumer Use Tax
Retail Sales and Use Tax
Description
Strict enforcement of the 90-day limitations period for filing a timely appeal.
Topic
Statute of Limitations
Date Issued
12-30-2011
December 30, 2011
Re: § 58.1-1821 Application: Retail Sales and Use Tax
Dear *****:
This is in response to your letter in which you request correction of the consumer use tax assessment issued to ***** (the "Taxpayer") as a result of an audit for the period January 2005 through May 2010.
Because the appeal sent by facsimile was not legible, a representative of the Department's Appeals and Rulings Unit contacted you by letter dated July 21, 2011, and requested a legible copy of your appeal letter and certain documentation. You were also requested to provide a copy of an appeal and proof of delivery if filed prior to June 9, 2011. You did not respond to such requests. However, the Department's records indicate that you had also mailed a legible appeal that was dated July 12, 2011, but mailed on July 13, 2011.
In this case, a notice of assessment was issued to the Taxpayer on March 10, 2011. The reverse side of the notice of assessment contains the following statement: "You may appeal this assessment at any time within 90 days of the date of assessment." On March 8, 2011, ******** (the approving supervisor of the audit) sent you a letter notifying you that, "Your appeal must be submitted within 90 days of the audit assessment bill date."
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 assessment, apply for relief to the Tax Commissioner." Pursuant to Title 23 of the Virginia Administrative Code 10-20-165 C 1, the 90-day limitations period "begins on the calendar day after the date of assessment and continues for 90 consecutive calendar days (including weekends and holidays)."
Based on the foregoing, the Taxpayer was required to file a complete appeal by June 8, 2011. The Taxpayer, however, filed its administrative appeal on July 13, 2011. The Department strictly enforces the 90-day limitations period for filing a timely administrative appeal. As demonstrated by the notice of assessment and the letter from the approving audit supervisor, the Taxpayer was given sufficient notice in writing of the 90-day rule for appealing an assessment. Because the Taxpayer failed to file a timely appeal, its appeal is barred from consideration.
I understand that the Taxpayer paid all of the original audit liability. Because the payment was not timely remitted within 30 days from the date of assessment, the Taxpayer became liable for additional interest on the assessment. The reverse side of the notice of assessment states: "If the assessment is not paid within 30 days, interest will accrue on the unpaid balance." This statement is consistent with subsection A of Va. Code § 58.1-1812, which mandates the accrual of interest on the unpaid balance of an assessment if the taxes, penalties and interest are not paid within thirty days of the date of assessment. The Taxpayer owes such additional accrued interest in the amount of ***** which should be paid immediately to avoid further interest charges.
The Code of Virginia sections and regulation cited are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions about this determination, you may contact in the Department's Office of Tax Policy, Appeals and Rulings, at *****.
-
-
-
-
-
-
-
- Sincerely,
-
-
-
-
-
-
-
-
-
-
-
-
-
- Craig M. Burns
Tax Commissioner
- Craig M. Burns
-
-
-
-
-
-
AR/1-4831961920.R
Rulings of the Tax Commissioner