Section 190. Protective claims (after payment)

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.

Historical Notes

Derived from VR630-1-1824, eff. January 1, 1985, with retroactive effect according to § 58.1-203 of the Code of Virginia; amended, Virginia Register Volume 25, Issue 8, eff. March 8, 2009.

Statutory Authority

§ 58.1-203 of the Code of Virginia.