Tax Type
Retail Sales and Use Tax
Description
Request to extend the 90-day period for filing an administrative appeal
Topic
Statute of Limitations
Date Issued
08-23-2006
August 23, 2006
Re: § 58.1-1821 Application: Retail Sales and Use Tax
Dear *****:
This will reply to your letter in which you seek correction of the retail sales and use tax assessment issued to ***** (the "Taxpayer") for the period April 2001 through April 2004.
The Department issued an assessment to the Taxpayer on August 27, 2004. You believe that the assessment is incorrect, contending use tax has been assessed on numerous nontaxable items. You assert that an administrative appeal was not filed within 90 days from the date of assessment because the Taxpayer's former controller mishandled the issue and you were not aware of the audit. Therefore, you request that the statute of limitations be reopened to allow the Taxpayer to contest certain items included in the audit assessment.
Virginia Code § 58.1-1821 provides 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." [Emphasis added.] In this case, the assessment issued to the Taxpayer was dated August 27, 2004. Pursuant to the provisions of Va. Code § 58.1-1821, the Taxpayer was required to file its administrative appeal with the Tax Commissioner no later than November 29, 2004 (the 90th day fell on Thanksgiving day).
The Department's records indicate your letter dated February 22, 2006 is the only correspondence from the Taxpayer regarding an administrative appeal of the assessment at issue. This filing is well after the expiration of the 90-day limitations period. Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations.
In regard to your request to reopen the statute of limitations, the law is quite clear and does not provide the Tax Commissioner with the authority to extend the 90-day period for filing an administrative appeal pursuant to Va. Code § 58.1-1821.
Accordingly, the assessment is correct as issued and remains due and payable. The Taxpayer will receive an updated bill with interest accrued to date. The bill should be paid within 30 days of the date of the bill to avoid the accrual of additional interest.
The Code of Virginia section cited, along with other reference documents, are available on-line at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. 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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- Janie E. Bowen
Tax Commissioner
- Janie E. Bowen
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AR/1-746492701P
Rulings of the Tax Commissioner