Tax Type
Employer Income Tax Withholding
Description
Adjustments to withholding tax returns; Statute of limitations
Topic
Withholding of Tax
Date Issued
10-08-1996
October 8, 1996
Re: § Section § 58.1-1821 Application: Withholding Tax
Dear****************
This will reply to your letter in which you request reconsideration of your application for the refund for overpayment of income tax withholdings for the tax years 1989 through 1991 by your client, the ***********(the "Taxpayer").
FACTS
In 1993, during the annual audit, the Taxpayer discovered that an employee had been embezzling funds from 1989 through 1993. Evidently, the employee was able to report the embezzled funds as wages, and both federal and state taxes were withheld. In May 1995, after the employee had been tried and convicted, the Taxpayer filed an amended Employers Annual or Final Summary of Virginia Income Tax Withheld (Form VA--6) for each period 1989 through 1993. Refunds were issued for 1992 and 1993, but no refunds were issued for 1989 through 1991 because the claims for those periods were filed beyond the statue of limitations.
The Taxpayer contends that the amended returns were filed timely subsequent to the judicial process.
DETERMINATION
Pursuant to Code of Virginia § 58.1-479(B), no overpayment of withholding tax will be refunded to the employer unless a written request of such overpayment is filed "within two years from the date the overpayment was made." The Taxpayer's requests for refund for 1989 through 1991 were not filed within the two years of when the overpayment occurred.
While I am sympathetic to the Taxpayer's situation, the code makes no exceptions to the statute of limitations. Accordingly, the department does not have the statutory authority to issue the refunds requested. If you have any additional questions regarding this ruling, please call ***** in the Office of Tax Policy at****************.
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/10691O
Rulings of the Tax Commissioner