Current through Register Vol. 41, No. 3, September 23, 2024
A. Filing.
1. If all assessed taxes, penalties and
accrued interest have been paid and taxpayer desires to preserve his judicial
remedies he may file a protective claim with the Tax Commissioner within three
years of the assessment.
2. There
is no form for applications for protective claims. The department will accept
any submission that sufficiently identifies the taxpayer, type of tax, taxable
period, remedy sought, date of assessment and the date of payment, a statement
signed by the taxpayer or duly appointed or authorized agent or attorney
setting forth each alleged error in the assessment, the grounds upon which
taxpayer relies, and all facts relevant to taxpayer's contention, and, if
appropriate, should show that determination of the facts or law applicable to
taxpayer depends upon the outcome of another case pending in the department or
the courts. See the department's website at
www.tax.virginia.gov for the appropriate
contact and mailing information.
3.
An application for a protective claim filed on behalf of a taxpayer by an
attorney, accountant or tax preparer must be signed by the taxpayer or
accompanied by a duly executed power of attorney in favor of such
representative who signs the application or claim.
4. Taxpayer may submit a protective claim
even if the merits have already been administratively considered under either
§ 58.1-1821 or 58.1-1823 of the Code of Virginia.
B. Issues held pending litigation. If the Tax
Commissioner determines that the protective claim involves facts or law which
depend upon resolution of a pending case, he may, in his discretion, hold that
portion of the protective claim without decision until the pending case has
been decided. Upon resolution of the pending case the Tax Commissioner will
decide those issues held pending such resolution. The provisions of this
subsection will be strictly limited to those issues which actually depend upon
resolution of a pending case; all other issues will be decided on the merits.
The Tax Commissioner may require additional information about the protective
claim as limited to particular issues involved in a pending case. Taxpayer will
be advised as to what portion, if any, of his protective claim is being held
without decision pending resolution of another case.
C. Statute of limitations.
1. Taxpayer may apply to the court under
§ 58.1-1825 of the Code of Virginia within one year after decision on
taxpayer''s protective claim, or three years from the assessment, whichever is
later.
2. If an application for
correction is pending under § 58.1-1821 of the Code of Virginia and
taxpayer desires to extend his right to apply to a court under § 58.1-1825
of the Code of Virginia, taxpayer may pay all assessed taxes, penalties and
accrued interest and, within three years of the assessment, reapply under this
section. Such reapplication may simply refer to the pending § 58.1-1821 of
the Code of Virginia application, state that the assessment has been paid and
request consideration under § 58.1-1824 of the Code of Virginia.
Statutory Authority
§ 58.1-203 of the Code of
Virginia.
