Tax Type
Estate Tax
Description
Substitute Probate Tax Return
Topic
Collection of Tax
Date Issued
06-27-1985
[Opinion - Virginia Attorney General: 1985 at 407]
REQUEST BY: Honorable Ronald P. Livingston Clerk, Circuit Court of Chesterfield County
OPINION BY: Gerald L. Baliles, Attorney General
OPINION:
You have asked whether a form used by the clerk of court, known as a "Memorandum of Facts," may be used as a probate tax return for purposes of § 58.1-1714 of the Code of Virginia. The "Memorandum of Facts" form is used to gather information for probate orders and includes, inter alia, the value of a decedent's personal and real estate.
Section 58.1-1714 provides:
"When the value of an estate exceeds $ 1000, a return shall be made and filed with the clerk of court at the time the will is offered for probate or the grant of administration is sought in such court. Such return shall state, to the best of the knowledge and belief of the persons submitting the will for probate or requesting the grant of administration, (i) the value of the decedent's real estate as set forth in § 58.1-1713 based on the actual value, if known, or if actual value is not known, the appraised value of such property for local real estate tax purposes, and (ii) the estimated value of the decedent's personal property as of the date of the decedent's death. Such return shall be subject to the provisions of § 58.1-11, and the information set forth therein shall be entitled to the privilege accorded by § 58.1-3. For the purpose of § 58.1-3, the information set forth in such return shall not be deemed to be required by law to be entered on any public assessment roll or book."
Generally, a "return" is a schedule of information required by governmental bodies. See Black's Law Dictionary 1184 (5th ed. 1979). Unlike other statutes regarding tax returns, § 58.1-1714 does not prescribe a specific form to be used as a probate tax return.1 It does require, however, that the probate return reflect the value of the decedent's real estate (such value to be determined pursuant to § 58.1-1713) and the estimated value of the decedent's personal property.
The Department of Taxation provides a probate tax return form which meets the requirements of § 58.1-1714 and is available upon request. Any alternate form should include in its title the words "Probate Tax Return" so that it is clear on the face of the form that it is the return required to be filed pursuant to § 58.1-1714.
Based on the foregoing, I am of the opinion that if the "Memorandum of Facts" form is also designated as a probate tax return, and if the values stated on the form reflect the information required by § 58.1-1714 and are calculated in accordance therewith, such form meets the requirements of a probate tax return.2
1 Cf. §§ 58.1-3517 (forms of returns for reporting tangible personal property, machinery and tools, and merchants' capital either shall be prescribed and furnished by the Department of Taxation, or a local form may be used in lieu of the form prescribed by the Department), 58.1-3905 (the Department of Taxation shall prescribe and furnish the necessary forms for the assessment of omitted taxes), 58.1-3923 (the Department of Taxation shall prescribe the form for delinquent property lists).
2 The form would be subject to the provisions of §§ 58.1-3 and 58.1-11 as provided in § 58.1-1714. Note that § 630-8-1714 of Virginia Tax Regulations, Virginia Department of Taxation (January 1, 1985), requires that a probate tax return be filed by the person submitting the will for probate or requesting the grant of administration.
Attorney General's Opinion