Tax Type
Retail Sales and Use Tax
Description
Assessments; statute of limitations
Topic
Collection of Delinquent Tax
Constitutional Provisions
Statute of Limitations
Date Issued
12-10-2004
December 10, 2004
Re: § 58.1-1821 Application: Retail Sales and Use Tax
Dear *******:
This is in response to your letter submitted on behalf of ***** (the "Taxpayer") concerning the retail sales and use tax assessment for the audit period of August 1989 through February 1995.
FACTS
The Taxpayer was assessed tax following an audit by the Department for the aforementioned period. A memorandum of lien was filed against the Taxpayer, with regard to the same audit period, on September 19, 1996. You maintain that the Taxpayer paid the tax to its suppliers at the time of purchase and that the assessment is erroneous.
DETERMINATION
Virginia Code § 58.1-1821 provides, in pertinent part, that "[a]ny person assessed with any tax administered by the Department of Taxation may, within ninety days from the date of such assessment, apply for relief to the Tax Commissioner."
Virginia Code § 58.1-1825 A provides, in pertinent part, that "[a]ny person assessed with any tax administered by the Department of Taxation and aggrieved by any such assessment may, unless otherwise specifically provided by law, within (i) three years from the date such assessment is made or (ii) one year from the date of the Tax Commissioner's determination under § 58.1-1822, whichever is later, apply to the circuit court for relief."
For assessments issued prior to August 15, 2003, the Department had a policy of accepting administrative appeals at any time within the three-year statute of limitations for pursuing a judicial remedy.
In this instance, the tax assessment issued to the Taxpayer was dated September 18, 1995. Pursuant to Va. Code §§ 58.1-1821 and 58.1-1825, and in accordance with the Department's policy as it existed at the time the assessment was issued, the Taxpayer was required to file its administrative appeal with the Tax Commissioner or its judicial appeal with the circuit court within three years of the date of assessment, or by September 18, 1998.
The Department's records indicate an administrative appeal was not filed with the Department until September 14, 2004 (the date of your letter). Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations. The Taxpayer is also barred by the statute of limitations from applying to the circuit court for correction of the assessment.
The Code of Virginia sections cited are available on-line in the Department's Tax Policy Library, located at www.policylibrary.tax.virginia.gov. If you have any questions about this response, you may contact ***** in the Department's Office of Policy and Administration, Appeals and Rulings, at *****.
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- Sincerely,
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Kenneth W. Thorson-
- Tax Commissioner
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AR/52570P
Rulings of the Tax Commissioner