May 20, 2016
Re: § 58.1-1821 Refund Application: Retail Sales and Use Tax
Dear *****:
This is in response to your letter submitted on behalf of ***** (the “Taxpayer”), in which you seek a refund of the overpayment of the Taxpayer's 2010 Accelerated Sales Tax payments. The overpayment includes five separate Virginia retail locations for a total refund or credit in the amount of apologize for the delay in responding to your correspondence.
FACTS
In May 2015, the Taxpayer contacted the Department and requested that a sales tax overpayment resulting from a 2010 Accelerated Sales Tax payment be credited toward the June 2015 Accelerated Sales Tax amount. The Taxpayer was advised that due to the three-year statute of limitations for sales tax refunds or credits found in Va. Code § 58.1-1823, the credit would not be granted. The Taxpayer was advised to file an appeal with the Tax Commissioner.
The Taxpayer's basis for the refund request is as follows: (1) the Taxpayer received no notification from the Department between 2010 and 2014 that there was a three year statute of limitations; (2) there is no information on the Department's website referencing the statutory statute of limitations; and (3) a Google search of Virginia's statute of limitations did not direct the Taxpayer back to the Department's website. The Taxpayer is seeking relief from the statute of limitations and approval of a refund or credit for sales taxes paid in 2010.
DETERMINATION
Virginia Code § 58.1-1823 states in pertinent part that “Any person filing a tax return or paying an assessment required for any tax administered by the Department of Taxation may file an amended return ... three years from the last day prescribed by law for the timely filing of the return....” Title 23 of the Virginia Administrative Code (VAC) 10-210-3040 addresses the refund of sales tax to dealers and provides, in pertinent part, that “Refunds cannot be authorized unless the request is made within three years from the due date of the return.”
In this instance, the Taxpayer is requesting a refund of taxes paid in June 2010 as a result of the Virginia Accelerated Sales Tax Payment Program. According to Department's records, the Taxpayer's original refund request was received by the Department in October 2014. As the June 2010 sales tax payment was originally due on July 20, 2010, this refund request is clearly outside the three year statute of limitations as prescribed under Va. Code § 58.1-1823 and Title 23 VAC 10-210-3040.
The Taxpayer is seeking exemption from the statute of limitation, stating that it was unaware of the statutory requirement and that the Department's website makes no mention of the three-year statute of limitations. Virginia Code § 58.1-1823 and VAC 10-210-3040 can be found in the Laws, Rules and Decision section of the Department's website at www.tax.virginia.gov. Additionally, the Department has issued Guidelines each year since 2010 explaining the Accelerated Sales Tax Program. The Guidelines offer a thorough explanation of the Accelerated Sales Tax payment and reconciliation process.
Public Document 10-46 (5/6/10), Guidelines and Rules for the Accelerated Sales Tax Payment, provides that:
TAX will provide reconciliation tax forms to each Dealer to reconcile his actual tax liability for June against the accelerated payment. The Dealer will enter the amount of the accelerated sales tax payment as his “Accelerated Tax Payment” in order to subtract it from his June Retail Sales and Use Tax liability. The Dealer will be responsible for paying the difference and filing a reconciliation tax return on or before July 20. If the accelerated payment creates an overpayment for June, the Dealer will be able to claim a credit on the return for July due in August. (Source: Acts of Assembly 2010, Chapters 872 and 874) [Emphasis added].
Based on the cited authorities, there are no exceptions to the three-year statute of limitations and therefore, I cannot approve the Taxpayer's request for a refund or credit of sales taxes paid for the period June 2010.
The Code of Virginia section, regulation and guidelines cited are available on-line at www.tax.virginia.gov in the Laws, Rules and Decisions section of the Department's web site. If you have any questions about this response, you may contact ***** in the Department's Office of Tax Policy, Appeals and Rulings, at *****.
Sincerely,
Craig M. Burns
Tax Commissioner
AR/1-6142472147.P