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 the overpayment of individual income tax paid by ***** (the “Taxpayer”) for the taxable years ended December 31, 2018, 2019, and 2020.
FACTS
The Taxpayer filed Virginia individual income tax returns for the taxable years at issue in May 2024, requesting refunds. The Department issued a refund for the 2020 taxable year but denied the refunds for the 2018 and 2019 taxable years on the basis that the returns were filed outside of the statute of limitations. The Taxpayer submitted an application for correction, requesting that the Department issue the refunds because medical problems prevented him from timely filing the returns.
DETERMINATION
Financial Disability
Virginia Code § 58.1-301 provides, with certain exceptions, that the terminology and references used in Title 58.1 of the Code of Virginia will have the same meaning as provided in the Internal Revenue Code (IRC) unless a different meaning is clearly required. For individual income tax purposes, Virginia conforms to federal law, in that it starts the computation of Virginia taxable income with federal adjusted gross income (FAGI). Income properly included in the FAGI of a Virginia resident is subject to taxation by Virginia, unless it is specifically exempt as a Virginia modification pursuant to Chapter 3 of Title 58.1 of the Code of Virginia.
Under IRC § 6511, the statute of limitations to claim a federal income tax refund or overpayment credit may be tolled provided the taxpayer can prove he was “financially disabled,” defined as the inability to manage his financial affairs by reason of mental or physical impairment which can be expected to result in death or last longer than 12 months. Virginia’s conformity to federal law, however, extends only to the use of the same terms in the IRC as are used in Virginia’s tax statutes. Such statutes are separate and distinct from the IRC, and conformity does not automatically import each provision of the IRC into Virginia law. Title 58.1 of the Code of Virginia contains no reference to financially disabled taxpayers generally or to tolling the statute of limitations for such disability.
Instead, Virginia Code § 58.1-341 F provides that an individual who is unable to make a return because of a disability has the responsibility of having such return filed by a fiduciary or duly authorized agent. Thus, Virginia law addresses the requirements of filing returns for taxpayers who have disabilities. While a severe illness or medical condition may be considered a disability for purposes of Virginia Code § 58.1-341 F, the statute does not provide for the suspension of the statute of limitations for an individual who is mentally or physically disabled. See Public Document (P.D.) 10-204 (9/2/2010) and P.D. 17-194 (11/16/2017).
Statute of Limitations
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.]
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. The due dates for the Taxpayer’s 2018 and 2019 individual income tax returns were May 1, 2019, and May 1, 2020, respectively. As such, the returns were required to be filed by May 2, 2022 (May 1, 2022, was a Sunday), and May 1, 2023, respectively, in order to receive refunds. The Taxpayer did not file his returns for the taxable years at issue until May 15, 2024, well outside of the three-year limitations period.
CONCLUSION
Although the Department empathizes with the Taxpayer’s circumstances, 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 discussed above, the returns for the 2018 and 2019 taxable years were filed outside of the three-year limitations periods and, accordingly, the Taxpayer’s request for relief cannot be granted.
The Code of Virginia sections cited are available online at law.lis.virginia.gov. The public documents 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/5196.T