February 21, 2024
Re: § 58.1-1821 Application: Retail Sales and Use Tax
Dear *****:
This is in response to your letter in which ***** (the “Taxpayer”), appeals the denial of a refund request for the use tax remitted to the Department for the period July 2017 through December 2017. I apologize for the delay in responding to your appeal.
FACTS
The Taxpayer, through ***** (the “Representative”), filed a refund claim and amended returns with the Department for the taxable period at issue. The refund claim was denied on the basis that the claim was filed outside the statute of limitations period and that the power of attorney (POA) submitted with the claim was not properly signed by employees of the representative. The Taxpayer appeals, contending that the refund claim was timely filed, and requests that the refund be allowed, or that a proper refund audit be conducted.
DETERMINATION
Pursuant to Virginia Code § 58.1-1823, a refund request must be made by a taxpayer within “three years from the last day prescribed by law for the timely filing of a return....”. The due date of the Form ST-8 was the 20th day in the month following the end of the taxable period. In this case, the Department’s auditor concluded that the refund request was filed on August 21, 2020 because the package was not received by the post office until August 21, 2020. Even if this was the case, the only taxable period out of statute would be July 2017. All the other months would be within the statute of limitations.
Title 23 of the Virginia Administrative Code (VAC) § 10-20-30 provides:
When remittance of a tax return or a tax payment is made by mail, receipt of the return or payment by the person with whom the return is required to be filed or the payment is required to be made shall constitute timely filing or payment, provided that (a) the tax return or tax payment is received in a sealed envelope with sufficient postage; and (b) the envelope bears a postmark on or before midnight of the day the return is required to be filed or the payment be made without penalty or interest.
The Taxpayer, however, has provided a certified mail receipt showing that the local post office received the refund request package on August 19, 2020. The postal tracking shows that the package was received by the regional postal facility on August 21, 2020. Based on this evidence, the Taxpayer has shown that the refund request package was in fact timely received within the three-year statutory period.
The auditor further contends that the refund request was not timely filed because the power of attorney form was not properly signed by employees of the representative when the refund request package was submitted. The Taxpayer asserts that the request was timely and properly filed regardless of the POA’s lack of signatures.
Nothing in the Virginia tax statutes, regulations, or the Guidelines for Retail Sales and Use Tax Refund Claim Procedures, issued as Public Document 17-98 (6/12/2017), require that a properly executed POA be a necessary part of a valid refund claim. Rather, a properly executed and signed power of attorney form is merely required for tax personnel to discuss confidential tax information with a party that is not the taxpayer. As such, whether the power of attorney form submitted with the refund request was properly completed is irrelevant as to whether the refund request package was timely filed.
As such, I find that the Taxpayer’s refund request was filed within the statute of limitations period. Accordingly, the case will be remanded to the auditor in order conduct a complete refund audit. Once the auditor’s review is complete, a revised audit report will be issued. If any issues should remain, the Taxpayer may submit an appeal within 90 days of the refund audit revision in accordance with Virginia Code § 58.1-1821 and Title 23 VAC § 10-20-165.
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 the refund audit, you may contact the auditor. If you have any questions about the appeals process, please contact ***** in the Department’s Office of Tax Policy, Appeals and Rulings, at *****.
Sincerely,
Craig M. Burns
Tax Commissioner
AR/3815.B