Tax Type
Individual Income Tax
Description
Amendment to filing status; Statute of limitations
Topic
Statute of Limitations
Date Issued
04-04-1985
April 4, 1985
RE: Virginia Code Section 58.1-1821 Application
Individual Income Tax /1979
Dear ****
This is in reply to your letter of November 29, 1984 in which you petition for correction of the department's decision to deny your client's claim for a refund for taxable year 1979 and to your letter of March 7, 1985 in which you furnished additional information.
FACTS
***** (hereinafter "Wife") acting under a valid power of attorney, timely filed a 1979 Virginia income tax return with (hereinafter "Husband") using filing status 4 "Married, filing separately on this combined return". A subtraction from federal adjusted gross income was claimed on the return equal to the amount of federal adjusted gross income reported for Husband. The taxpayers indicated on an attachment to the return that the subtraction represented the wages earned by Husband during his residence in Texas. They stated in the attachment that Husband was a resident of Texas for all of 1979.
The return was subsequently examined by the department, which concluded that Husband had not abandoned his Virginia domicile; therefore, the subtraction was incorrectly claimed. An assessment for tax and interest was issued and paid in full in February, 1983.
You now contend that Husband was not liable for Virginia income tax in 1979 and that the assessment was erroneously paid. On November 7, 1983 you filed an amended 1979 return on behalf of Wife using filing status 3 "Married filing separate returns", requesting a refund of the tax and interest paid as result of the department's assessment. The department disallowed this return and denied the refund. You now petition under Virginia Code Section 58.1-1821 for correction of the department's decision to deny the refund claimed on Wife's amended 1979 return.
DETERMINATION
Virginia Code Section 58.1-341 provides that:
B. If the federal income tax liability of husband or wife is determined on a separate federal return, their Virginia income tax liabilities and returns shall be separate. If the federal income tax liabilities of husband and wife (other than a husband and wife described in paragraph 2 of subsection A) are determined on a joint federal return, or if neither files a federal return:
1. They shall file a joint Virginia income tax return, and their tax liabilities shall be joint and several; or
2. They may elect to file separate Virginia income tax returns if they comply with the requirements of the Department in setting forth information (whether or not on a single form), in which event their tax liabilities shall be separate unless such husband and wife file separately on a combined return. The election permitted under this subsection may be made or changed at any time within three years from the last day prescribed by law for the timely filing of the return. (Emphasis added.)
The 1979 return was required to be filed on or before May 1, 1980 and the amended 1979 return that changed the filing status from "Married" filing separately on this combined return" to "Married filing separate returns" was not filed until November 7, 1983, more than "...three years from the last day prescribed by law for timely filing of the return."
Without the statutory provisions to accept amended returns filed after the time required by law, I have no alternative other than to deny your application for correction.
Sincerely,
W. H. Forst
Tax Commissioner
RE: Virginia Code Section 58.1-1821 Application
Individual Income Tax /1979
Dear ****
This is in reply to your letter of November 29, 1984 in which you petition for correction of the department's decision to deny your client's claim for a refund for taxable year 1979 and to your letter of March 7, 1985 in which you furnished additional information.
FACTS
***** (hereinafter "Wife") acting under a valid power of attorney, timely filed a 1979 Virginia income tax return with (hereinafter "Husband") using filing status 4 "Married, filing separately on this combined return". A subtraction from federal adjusted gross income was claimed on the return equal to the amount of federal adjusted gross income reported for Husband. The taxpayers indicated on an attachment to the return that the subtraction represented the wages earned by Husband during his residence in Texas. They stated in the attachment that Husband was a resident of Texas for all of 1979.
The return was subsequently examined by the department, which concluded that Husband had not abandoned his Virginia domicile; therefore, the subtraction was incorrectly claimed. An assessment for tax and interest was issued and paid in full in February, 1983.
You now contend that Husband was not liable for Virginia income tax in 1979 and that the assessment was erroneously paid. On November 7, 1983 you filed an amended 1979 return on behalf of Wife using filing status 3 "Married filing separate returns", requesting a refund of the tax and interest paid as result of the department's assessment. The department disallowed this return and denied the refund. You now petition under Virginia Code Section 58.1-1821 for correction of the department's decision to deny the refund claimed on Wife's amended 1979 return.
DETERMINATION
Virginia Code Section 58.1-341 provides that:
B. If the federal income tax liability of husband or wife is determined on a separate federal return, their Virginia income tax liabilities and returns shall be separate. If the federal income tax liabilities of husband and wife (other than a husband and wife described in paragraph 2 of subsection A) are determined on a joint federal return, or if neither files a federal return:
1. They shall file a joint Virginia income tax return, and their tax liabilities shall be joint and several; or
2. They may elect to file separate Virginia income tax returns if they comply with the requirements of the Department in setting forth information (whether or not on a single form), in which event their tax liabilities shall be separate unless such husband and wife file separately on a combined return. The election permitted under this subsection may be made or changed at any time within three years from the last day prescribed by law for the timely filing of the return. (Emphasis added.)
The 1979 return was required to be filed on or before May 1, 1980 and the amended 1979 return that changed the filing status from "Married" filing separately on this combined return" to "Married filing separate returns" was not filed until November 7, 1983, more than "...three years from the last day prescribed by law for timely filing of the return."
Without the statutory provisions to accept amended returns filed after the time required by law, I have no alternative other than to deny your application for correction.
Sincerely,
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner