Tax Type
Individual Income Tax
Description
Statute of Limitations. Persons subject to file income tax
Topic
Federal Conformity
Statute of Limitations
Taxable Income
Date Issued
07-22-2013
July 22, 2013
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 assessments issued to ***** (the "Taxpayer") for the taxable years ended December 31, 2008 and 2009.
FACTS
The Department received information from the Internal Revenue Service (IRS) that tax documents for the 2008 and 2009 taxable years were sent to the Taxpayer at a Virginia address. The Department requested additional information from the Taxpayer in order to determine if his income was subject to Virginia income tax. When the Taxpayer did not respond to the information requests, the Department concluded that the Taxpayer was a resident of Virginia and issued assessments. The Taxpayer appeals the assessments, contending he was a resident of ***** (State A) during the taxable years at issue.
DETERMINATION
Appeal — Statute of Limitations
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 Va. Code § 58.1-1821 and Title 23 of the Virginia Administrative Code 10-20-165, a complete appeal must be filed with the Tax Commissioner within 90 days from the date of assessment.
In this case, the Department issued the assessment to the Taxpayer for the 2008 taxable year on January 4, 2012. Based on the provisions of Va. Code § 58.1-1821, the Taxpayer was required to file a complete administrative appeal for this assessment by April 4, 2012. The Taxpayer did not file his appeal for the 2008 assessment until April 11, 2013.
For the 2009 taxable year, the Department issued the assessment on August 29, 2012. The deadline for filing an appeal pursuant to Va. Code § 58.1-1821 for this assessment was November 27, 2012. The Taxpayer's appeal of the 2009 assessment was filed on June 3, 2013.
Both appeals were submitted well after the expiration of the 90-day limitations period. Therefore, the Taxpayer's applications for correction pursuant to Va. Code § 58.1-1821 are barred by the statute of limitations.
Assessments Based on Available Information
The assessments at issue were made based on the best information available to the Department pursuant to Va. Code § 58.1-111. Virginia Code § 58.1-205 provides that in any proceeding relating to the interpretation of the tax laws of Virginia, an "assessment of a tax by the Department shall be deemed prima facie correct." As such, the burden of proof is on the Taxpayer to show he was not subject to income tax in Virginia. Further, Va. Code § 58.1-1826 precludes a court from granting relief to taxpayers seeking correction of erroneous state tax assessments in cases in which the assessment was attributable to a taxpayer's willful failure or refusal to provide the Department with necessary information as required by law.
The Taxpayer may have additional information that more accurately reflects his Virginia taxable income. Accordingly, the Taxpayer is hereby requested to file Virginia income tax returns for the 2008 and 2009 taxable years to more accurately reflect his Virginia income tax liability.
The Taxpayer should file the requested returns within 30 days of the date of this letter. Please send the return and payment for the corresponding liability to: Virginia Department of Taxation, Office of Tax Policy, Appeals and Rulings, P.O. Box 27203, Richmond, Virginia 23218-7203, Attention: *****. Once the returns are received, they will be processed and the assessments will be adjusted accordingly. If such returns are not filed within the allotted time, the assessments will be considered to be correct as issued and collection action will resume.
The Code of Virginia sections and regulation 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 ruling, you may contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
-
-
-
-
-
-
-
- Sincerely,
-
-
-
-
-
-
Craig M. Burns
Tax Commissioner
AR/1-5386247659.B
Rulings of the Tax Commissioner