Tax Type
Employer Income Tax Withholding
Individual Income Tax
Description
Substitute wage and tax statement
Topic
Reports
Returns/Payments/Records
Date Issued
12-23-1987
December 23, 1987
Re: Virginia Code §58.1-1821 Application
Individual Income Tax
Dear *****************
This is in reply to your letter of September 25, 1987 in which you make application for correction of the individual income tax assessment issued to you for taxable year 1986.
FACTS
Your former employer declared bankruptcy and his assets were seized before you had received your Form W-2, Wage and Tax Statement for taxable year 1986. After repeated attempts to obtain this information from your employer failed, you filed federal Form 4852, Substitute for Form W-2, Wage and Tax Statement, with your federal income tax return to substantiate the amount that you reported as wages and the amount of income tax withheld. You attached a copy of this federal Form 4852 to your 1986 Virginia Individual Income Tax Return to substantiate the amount that you reported as wages and the amount of income tax withheld for Virginia income tax purposes.
In processing your Virginia Individual Income Return, the department disallowed the portion of the Virginia income tax withheld which was substantiated by federal Form 4852. You now protest this action by the department and make application for correction of the assessment that was issued due to the disallowance of this portion of Virginia income tax withheld.
DETERMINATION
It has been the long-standing policy of the department to accept federal Form 4852, Substitute Wage and Tax Statement, in lieu of Form W-2. However Virginia Code §58.1-468 necessitates that the department impose one additional requirement upon the individual that must use this form. This section provides, "[t]he burden of proving that such an employer deducted and lawfully withheld state income tax shall rest upon the employee." In view of this requirement, the taxpayer must certify in writing on Form 4852 that the tax withheld by the employer is Virginia income tax withheld.
Lacking such a statement on the copy of federal Form 4852 submitted with your 1986 Virginia income tax return, the department properly disallowed the amount of Virginia income withheld which was substantiated by federal Form 4852.
However, Virginia Code §58.1-1823 provides that you may file an amended income tax return within "three years from the last prescribed by law for the timely filing of the return." Therefore, upon receipt of an amended return with a properly completed and certified Form 4852 attached, the department will revise the assessment to allow the appropriate credit for Virginia income tax withheld. Please submit such an amended return with a copy of this letter to:
Virginia Department of Taxation
Technical Services Section
P. O. Box 6-L
Richmond, Virginia 23282
The department will withhold any collection action for 90 days to allow you sufficient time to prepare and to file the amended return.
Sincerely,
W. H. Forst
Tax Commissioner
Rulings of the Tax Commissioner