Tax Type
Individual Income Tax
Description
Refunds of tax; Statute of limitations
Topic
Returns and Payments
Date Issued
08-06-1996
August 6, 1996
Re: § 58.1-1821 Application: Individual Income Tax
Dear**********
This will reply to your letter dated January 25,1996, concerning the 1991 Virginia nonresident income tax return of ***** (the "Taxpayers").
FACTS
The Taxpayers filed for an income tax extension for the taxable year 1991. They stated that they filed a 1991 return in September 1992. The department, however, has no record of receiving the 1991 return. Another 1991 return was filed with their appeal letter on January 25, 1996. The return indicated that an overpayment of tax, **** was to be credited to the 1992 estimated income tax account. In that the statute of limitations period expired on November 1, 1995, for this return, the overpayment was disallowed by the department. The Taxpayers indicate that had they known the 1991 return was not received by the department, they would have filed another return before the expiration of the statute of limitations period. The Taxpayers are requesting that the 1991 return be accepted and the overpayment be allowed.
DETERMINATION
Code of Virginia § 58.1-499 provides, in pertinent part, that:
-
- [N]o refund . . . of any amount under this section 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.)
When a Taxpayer files an application to extend the filing date of the return, the statute of limitations expires three years after the extended due date of the return. In the instant case, the original due date for the 1991 return was May 1, 1992. The due date was extended to November 1, 1992, because the Taxpayers filed a Form 760E, Application for Extension of Time to File Individual Income Tax Return. Accordingly, the statute of limitations period for the 1991 return expired on November 1, 1995. Because the department received the 1991 return with your January 25, 1996, appeal letter, the return was filed after to the statute of limitations period, and the overpayment was disallowed. Public Document (PD) 91-116 (July 9, 1991), copy enclosed, addresses a similar situation in which refunds were disallowed because the taxpayer filed income tax returns after the statute of limitations periods.
Based on the information provided, there is no basis to allow the overpayment claimed on the 1991 return. If the Taxpayers, however, remit within 30 days, the amount of ********** which represents********in tax and *****in interest accrued through the date of your appeal letter, I will waive any subsequent interest. In a conversation with a member of my staff, I understand that you also wish to pay the balance of your 1993 assessment, which represents*********** in tax and in interest. Please remit a total of******** to the attention of ********** Office of Tax Policy, Virginia Department of Taxation, P. O. Box 1880, Richmond, Virginia 23218-1880. If you have further questions, please contact ******* at*************.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/10847N
Rulings of the Tax Commissioner