November 20, 2025
Re: § 58.1-1821 Application: Individual Income Tax
Dear ***** :
This will respond to your letter in which you seek a refund of individual income tax paid by your clients, ***** (the “Taxpayers”), for the taxable year ended December 31, 2020.
FACTS
The Taxpayers timely filed their joint Virginia individual income tax return for the 2020 taxable year. Subsequently, the Taxpayers filed an amended return requesting a refund. The Department denied the refund on the basis that the amended return was filed outside of the statute of limitations. The Taxpayers submitted an application for correction, requesting that the Department issue the refund because the amended return was timely filed.
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 Department shall order a refund of the overpayment. Virginia Code § 58.1-499 D specifies, however, in pertinent part that:
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.]
In addition, under Virginia Code § 58.1-1823 the general rule is that an amended return must be filed within three years from the last day prescribed by law for the timely filing of the return to claim a refund. This code section includes a number of exceptions to the general rule when specific circumstances are present. In this case, none of those circumstances apply and thus the general three-year rule must be used to determine the date by which the Taxpayers must have filed the amended return to claim a refund.
Virginia Code § 58.1-341 A requires that taxpayers file individual income tax returns by May 1 of the year following the tax year for which the return is filed. For the 2020 taxable year, however, Governor Northam announced that Virginia would extend the individual income tax filing and payment deadline for calendar year filers from May 1, 2021, to May 17, 2021, and the corresponding extended due date from November 1, 2021, to November 17, 2021. See Virginia Tax Bulletin (VTB) 21-5 (4/9/2021).
Taxpayers are allowed to elect to take a six-month extension to file their returns. Although the filing extension is automatic in the sense that no application is required, taxpayers must elect to use the six-month filing extension. In order to elect an extension, a taxpayer must (i) file the return within the extended period, and (ii) on or before the original due date for the filing of the return, pay the full amount properly estimated as the balance of the tax due for the taxable year. See Virginia Code § 58.1-344 and Public Document (P.D.) 24-48 (5/16/2024).
The Taxpayers argue that their amended return was timely filed within three years of the extended due date. The Taxpayers, however, filed their original 2020 return on May 12, 2021, before the May 17, 2021, due date. Because they did not file their return within the extension period, they did not make a valid election to take a six-month extension. As such, the Taxpayers were required to file an amended return claiming a refund for the 2020 taxable year by May 17, 2024.
The provisions of Virginia Code § 58.1-499 D are clear and do not provide the Department with any discretion in enforcing the three-year limitations period to apply for a refund. As stated above, the Taxpayers had three years from May 17, 2021, to file a 2020 amended return. The Taxpayers filed their amended 2020 return on November 17, 2024, outside of the three-year statute of limitations. Accordingly, the request for a refund of the overpayment of Virginia income tax for the taxable year ended December 31, 2020, cannot be granted.
The Code of Virginia sections cited are available online at law.lis.virginia.gov. The public document and tax bulletin cited are available at tax.virginia.gov in the Laws, Rules, & Decisions section of the Department’s website. If you have any questions regarding this determination, you may contact ***** in the Office of Tax Policy and Legal Affairs, Tax Adjudication and Resolution Division, at ***** or *****.
Sincerely,
James J. Alex
Tax Commissioner
Commonwealth of Virginia
AR/5175.T