Document Number
03-6
Tax Type
Individual Income Tax
Description
Refund for the overpayment of the individual income tax
Topic
Returns and Payments
Date Issued
02-03-2003

February 3, 2003




Re: § 58.1-1821 Application: Individual Income Tax


Dear *****:

This will reply to your letter in which you request a refund for the overpayment of the individual income tax paid by ***** (the "Taxpayers") for the 1997 taxable year.
FACTS

In June 2001, the Taxpayers sent a letter to the Department contesting an assessment for the 1998 taxable year, claiming they are due a refund for the 1997 taxable year. The Department had no record of receiving the 1997 tax return and did not issue a refund because the statute of limitations for requesting a refund had expired. The Taxpayers maintain that their 1997 Virginia individual income tax return was filed on April 28, 1998 and appeal the Department's denial of the refund request.
DETERMINATION

Va. Code § 58.1-499(A) provides that in the case of any overpayment of any tax, whether by reason of excessive withholding, overestimating and overpaying estimated tax, or error on the part of the taxpayer, the Tax Commissioner shall order a refund of the overpayment. Va. Code § 58.1-499(D) specifies, however, in pertinent part that:
    • No refund under this section . . . shall be made . . . whether on discovery by the Department or on written application of the taxpayer, if such discovery is not made or such written application is not received within three years from the last day prescribed by law for the timely filing of the return, or within sixty days from the final determination of any change or correction in the liability of the taxpayer for any federal tax upon which the state tax is based, whichever is later.

The first record the Department has regarding the Taxpayers' 1997 income tax return was received with your administrative appeal filed pursuant to Va. Code § 58.1-1821, dated April 12, 2002. The Department can find no earlier evidence of a filed return for 1997. Because the first record the Department has regarding the filing of the 1997 return was received more than three years from the last day prescribed by law for timely filing the return (May 1, 2001), the Department does not have the authority to make a refund with respect to an overpayment that may exist for the 1997 taxable year.

Based on the statutory language in Va. Code § 58.1-499(D), the Department has no alternative but to deny the Taxpayers' request for refund. If, within 60 days from the date of this letter, you can provide clear and convincing evidence that the original date of filing the 1997 return was on or prior to May 1, 2001, the Department will reexamine your claim. Such documentation should be sent to the Virginia Department of Taxation, Office of Policy and Administration, Appeals and Rulings, P. O. Box 1880, Richmond, Virginia 23218-1880, Attention: *****.

The Code of Virginia sections cited, along with other reference documents, are
available online in the Tax Policy Library section of the Department of Taxation's web
site, located at www.tax.state.va.us. If you have any questions regarding this
determination, you may contact ***** at *****.
                • Sincerely,


                • Kenneth W. Thorson
                  Tax Commissioner


AR/40023E




Rulings of the Tax Commissioner

Last Updated 08/25/2014 16:46