Tax Type
Individual Income Tax
Description
Refund of tax
Topic
Returns and Payments
Date Issued
11-05-1999
November 5, 1999
Re: Sec. 58.1-1821 Application: Individual Income Taxation
Dear***
This will reply to your letter in which you (the "Taxpayer') request a refund for the overpayment of your 1994 Virginia income tax.
FACTS
The Taxpayer filed his 1994 federal income taxes in April of 1998. He subsequently filed his 1994 Virginia income tax returns in October 1998. The Taxpayer was denied a refund on the overpayment of his 1994 income tax because the return was filed outside the limitation period.
The Taxpayer contends that he is entitled to a refund because Code of Virginia Sec. 58.1-1823, copy enclosed, requires that a request for refund be filed within three years of the return filing deadline and that the code section does not reference the filing due date. You also submit that this code section allows for the request of a refund for one year from a change or correction to federal tax liability by the Internal Revenue Service ("IRS') and the October 1998 filing qualifies as a "change or correction'.
DETERMINATION
You contend that Code of Virginia Sec. 58.1-1823 does not provide the last day prescribed by law for the filing of individual tax return. The department has previously ruled on this issue in Public Document ("P.D.') 95-95, (4/28/95), copy enclosed. Both Code of Virginia Sec.68.1-1823 and Code of Virginia Sec. 58.1-499 do provide that refund requests must be filed "within three years from the last day prescribed by law.' Code of Virginia Sec. 58.1-341, copy enclosed, prescribes that a calendar year individual's Virginia income tax return is due by May 1 of the year following the taxable year. Therefore, the Taxpayer's 1994 Virginia individual tax return would have been due by May 1, 1995. The three year limitation period to request a refund ended on May 1, 1998. As such, the Taxpayer's 1994 return was clearly filed beyond the statute of limitations in October 1998.
You also contend that under Code of Virginia Sec. 58.1-1823, the request for a refund should be allowed because it was filed within one year after a change or correction of federal tax liability. You believe your initial filing in October 1998 is essentially a change or correction of federal tax liability. In P.D. 99-148, (6/21/99), copy enclosed, the department ruled that the statute of limitations for amendments for a change to federal tax liability are limited to those made by the IRS. The Taxpayer's Virginia income tax liability is based on his federal tax liability stated on his federal income tax return filed in April of 1998. This federal tax liability has not been changed or corrected by the IRS. Thus, the statute of limitations period did not extend for one year after the Taxpayer's filing of the federal return.
Accordingly, the department must deny the Taxpayer's request. While I sympathize with the situation, the department is required to follow the Code of Virginia. If you have any questions about this determination, you may contact ***** at *****
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/23737B
Re: Sec. 58.1-1821 Application: Individual Income Taxation
Dear***
This will reply to your letter in which you (the "Taxpayer') request a refund for the overpayment of your 1994 Virginia income tax.
FACTS
The Taxpayer filed his 1994 federal income taxes in April of 1998. He subsequently filed his 1994 Virginia income tax returns in October 1998. The Taxpayer was denied a refund on the overpayment of his 1994 income tax because the return was filed outside the limitation period.
The Taxpayer contends that he is entitled to a refund because Code of Virginia Sec. 58.1-1823, copy enclosed, requires that a request for refund be filed within three years of the return filing deadline and that the code section does not reference the filing due date. You also submit that this code section allows for the request of a refund for one year from a change or correction to federal tax liability by the Internal Revenue Service ("IRS') and the October 1998 filing qualifies as a "change or correction'.
DETERMINATION
-
- Code of Virginia Sec. 58.1-499, copy enclosed, which provides in pertinent part:
In the case of any overpayment of any tax,... whether by reason of excessive withholding, overestimating and overpaying estimated tax, error on the part of the taxpayer,... the Tax Commissioner shall order a refund of the amount of the overpayment to the taxpayer.
... nor shall any 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.)
- Code of Virginia Sec. 58.1-499, copy enclosed, which provides in pertinent part:
-
- In addition, Code of Virginia Sec. 58.1-1823 provides in pertinent part:
Any person filing a tax return required for any tax administered by the Department of Taxation may file an amended return with the Department (I) within three years from the last day prescribed by law for the timely filing of the return... If the Department is satisfied, by evidence submitted to it or otherwise, that the tax assessed and paid upon the original return exceeds the proper amount, the Department may reassess the taxpayer and order that any amount excessively paid be refunded to him. (Emphasis added.)
- In addition, Code of Virginia Sec. 58.1-1823 provides in pertinent part:
You contend that Code of Virginia Sec. 58.1-1823 does not provide the last day prescribed by law for the filing of individual tax return. The department has previously ruled on this issue in Public Document ("P.D.') 95-95, (4/28/95), copy enclosed. Both Code of Virginia Sec.68.1-1823 and Code of Virginia Sec. 58.1-499 do provide that refund requests must be filed "within three years from the last day prescribed by law.' Code of Virginia Sec. 58.1-341, copy enclosed, prescribes that a calendar year individual's Virginia income tax return is due by May 1 of the year following the taxable year. Therefore, the Taxpayer's 1994 Virginia individual tax return would have been due by May 1, 1995. The three year limitation period to request a refund ended on May 1, 1998. As such, the Taxpayer's 1994 return was clearly filed beyond the statute of limitations in October 1998.
You also contend that under Code of Virginia Sec. 58.1-1823, the request for a refund should be allowed because it was filed within one year after a change or correction of federal tax liability. You believe your initial filing in October 1998 is essentially a change or correction of federal tax liability. In P.D. 99-148, (6/21/99), copy enclosed, the department ruled that the statute of limitations for amendments for a change to federal tax liability are limited to those made by the IRS. The Taxpayer's Virginia income tax liability is based on his federal tax liability stated on his federal income tax return filed in April of 1998. This federal tax liability has not been changed or corrected by the IRS. Thus, the statute of limitations period did not extend for one year after the Taxpayer's filing of the federal return.
Accordingly, the department must deny the Taxpayer's request. While I sympathize with the situation, the department is required to follow the Code of Virginia. If you have any questions about this determination, you may contact ***** at *****
Sincerely,
Danny M. Payne
Tax Commissioner
OTP/23737B
Rulings of the Tax Commissioner