Tax Type
Retail Sales and Use Tax
Description
Untaxed retail sales, taxed retail sales not remitted to the Department.
Topic
Appropriateness of Audit Methodology
Collection of Tax
Penalties and Interest
Records/Returns/Payments
Date Issued
02-29-2008
February 29, 2008
Re: § 58.1-1821 Application: Retail Sales and Use Tax
Dear *****:
This is in response to your letter dated January 2, 2008, in which you submit an appeal of the retail sales and use tax assessment issued to ***** (the Taxpayer) as a result of an audit for the period July 2004 through June 2007.
FACTS
The Taxpayer is a wholesaler and retailer of granite. An audit resulted in the assessment of sales tax on untaxed retail sales, as well as, taxed retail sales for which the Taxpayer failed to remit to the Department.
The Taxpayer requests waiver of the entire assessment because it relied upon the advice of an independent accountant that sales tax should not be collected on any sales made to customers. I note that the Taxpayer is making partial payments every month towards the assessment.
DETERMINATION
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 assessment, apply for relief to the Tax Commissioner." The Administrative Appeal Guidelines for Tax Assessments, issued as Public Document (P.D.) 06-140 (11/29/06), provides additional details regarding the timely filing of administrative appeals. This document provides information to taxpayers about the process for appealing tax assessments including the filing of a Notice of Intent and a complete administrative appeal. Section 3 D of P.D. 06-140 states:
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- An administrative appeal that is delivered to the Department by hand, by common carrier or delivery service, facsimile transmission, electronic mail ("e-mail") or any means of delivery other than the United States mail, must be dated and received on or before the 901" calendar day after the date of assessment to be considered timely filed.
In this case, the assessment was issued to the Taxpayer on October 2, 2007. Pursuant to the provisions of Va. Code § 58.1-1821 and P.D. 06-140, and the fact that December 31, 2007 and January 1, 2008 were state holidays, the Taxpayer was required to file its administrative appeal with the Tax Commissioner no later than January 2, 2008. Although the date on the Taxpayer's appeal letter is January 2, 2008, the date of receipt of the facsimile transmission is January 9, 2008. As such, the Taxpayer has not filed a complete administrative appeal with the Department within the 90-day limitation period. Therefore, the Taxpayer's application for correction pursuant to Va. Code § 58.1-1821 is barred by the statute of limitations.
CONCLUSION
Based on this determination, the assessment remains due and payable. The Taxpayer should continue with its partial payment arrangement until the assessment is paid in full.
The Code of Virginia section and public document 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 website. If you have any questions regarding this response, you may contact ***** in the Office of Tax Policy, 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/1-2052902218.R
Rulings of the Tax Commissioner