Tax Type
Individual Income Tax
Description
Late file return denied request for refund
Topic
Filing Extensions
Statute of Limitations
Date Issued
05-28-2009
May 28, 2009
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will reply to your letter in which you appeal the Department's decision denying a refund for Virginia individual income tax overpaid by ***** (the "Taxpayer"), for the taxable year ended December 31, 2003.
FACTS
In April 2008, the Taxpayer filed Virginia individual income tax returns for the 2003 through 2007 taxable years. The Department processed the returns for the 2004 through 2007 taxable years and issued the appropriate refunds. The refund claimed on the 2003 return was not issued because the return was not filed within the applicable statute of limitations. The Taxpayer requests that the Department reconsider its position and issue the refund claimed on the 2003 taxable year return.
DETERMINATION
Virginia 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. Virginia Code § 58.1-499 D specifies, however, in pertinent part:
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- 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 . . . . [Emphasis added.]
Virginia Code § 58.1-341 A requires that a taxpayer file an individual income tax return by May 1 of the year following the tax year for which the return is filed. The Taxpayer's original return for the 2003 taxable year was required to be filed by May 1, 2007 (absent an extension). The return was filed in April 2008, well after the expiration of the statute of limitations.
The Taxpayer states he filed an extension for the 2003 taxable year but was unable to file the return by that date due to his health. However, the Taxpayer's return was not filed within three years of the extended due date for the 2003 taxable year (November 1, 2007).
Under Va. Code § 58.1-344, the Department only has the authority to allow an extension of time to file an individual income tax return for six months after the due date for filing such a return except under specific circumstances enumerated in the statute. Based on the facts, the Taxpayer does not meet one of the exceptions under Va. Code § 58.1-344 D, E, F, and G. Further, when a return is not filed within the extended period of time, the extension becomes void and such return is processed as if no extension was granted. See Va. Code § 58.1-344 C.
While I empathize with your situation, I am bound by the clear requirements under the law. Accordingly, I must deny your request for refund for the 2003 taxable year.
The Code of Virginia sections cited 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 regarding this determination, 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
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AR/1-3082785788.o
Rulings of the Tax Commissioner