How do I get my tax refund if the state refuses to release based on other tax liabilities?
Full Question:
Having payed a tax payment found by the Virginia Tax Department in 2008, for taxes on a cashed in Insurance policy in 2005 of about $2,300.00. I paid the tax and penalties within a month of the notice (I have all the receipts and paper work) in April 2009 my bank account was seized for the money I had already paid. I contacted the VA Tax Department and sent them my receipt and all the other paper from 2005 showing I had paid the tax bill. I then received a letter stating that my 2008 Tax Refund was being applied to the 2005 tax that they stated I owed. Even sending them the receipts and the paper work they have refused to release my Tax Refund! I would like to know what recourse I have? To me the, the tax department has stolen my money, and I ought to have some recourse. Payments paid to the Virginia tax department must be sent through a tax web site, which I checked with and they stated that everything was filled incorrectly.
05/23/2009 |
Category: Taxes |
State: Virginia |
#16760
Answer:
An aggrieved taxpayer may bring a civil action in the circuit court to determine the proper application of payments/refunds. Please see the following VA statutes:
§ 58.1-1825. Application to court for correction of erroneous
or improper assessments of state taxes generally. —
A. Any person assessed with any tax administered by the
Department of Taxation and aggrieved by any such assessment,
or aggrieved by an action by the Department with respect to
a transferred credit or other tax attribute, may, unless
otherwise specifically provided by law, within(i)
three years from the date such assessment is made or
(ii)
one year from the date of the Tax Commissioner's
determination under § 58.1-1822, whichever is later, apply
to a circuit court for relief. The venue for such proceeding
shall be as specified in subdivision 13 b of § 8.01-261. The
application shall be before the court when it is filed in
the clerk's office.
B. Except as provided in subsection C, the court shall
require the applicant to pay the assessment before
proceeding with its application upon granting a motion by
the Tax Commissioner seeking to compel such payment and
showing to the satisfaction of the court that the Department
is likely to prevail on the merits of the case, that the
application is (i) not well grounded in fact; (ii) not
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law; (iii)
interposed for an improper purpose, such as to harass, to
cause unnecessary delay in the collection of the revenue, or
to create needless cost to the Commonwealth from the
litigation; or (iv) otherwise frivolous.
C. In lieu of the payment required in subsection B, the
taxpayer may, within 60 days of the court's ruling, (i) post
a bond pursuant to the provisions of § 16.1-107, with a
corporate surety licensed to do business in Virginia, or
(ii) file an irrevocable letter of credit satisfactory to
the Tax Commissioner as to the bank or savings institution,
the form and substance, and payable to the Commonwealth in
the face amount of the contested assessment increased by
twice the interest rate for underpayments published by the
Department and in effect at the time the application is
filed. The letter of credit shall be from a bank
incorporated or authorized to conduct banking business under
the laws of this Commonwealth or authorized to do business
in this Commonwealth under the banking laws of the United
States, or a federally insured savings institution located
in this Commonwealth. Such bond or irrevocable letter of
credit shall be conditioned upon payment by the applicant of
the amount of the taxes, penalty and interest ordered by the
court pursuant to § 58.1-1826, if any.
D. Any person whose assessment has been improperly collected
from property exempt from process may within three years
from the date such assessment is made, or if later, within
one year of the Tax Commissioner's decision on a process
exemption claim under § 58.1-1821 apply to a circuit court
for relief. The venue for such proceeding shall be as
specified in subdivision 13 b of § 8.01-261.
The Department shall be named as defendant, and the
proceedings shall be conducted as an action at law before
the court sitting without a jury. It shall be the burden of
the applicant in any such proceeding to show that the
assessment or collection or action on a transferred credit
or other tax attribute complained of is erroneous or
otherwise improper. The court's order shall be entered
pursuant to § 58.1-1826.
E. Nothing in this section shall prevent the Tax
Commissioner from collecting the assessment if he determines
that collection is in jeopardy.
58.1-1824. Protective claim for refund.
Any person who has paid an assessment of taxes administered by the
Department of Taxation may preserve his judicial remedies by filing a
claim for refund with the Tax Commissioner on forms prescribed by the
Department within three years of the date such tax was assessed. Such
taxpayer may, at any time before the end of one year after the date of
the Tax Commissioner's decision on such claim, seek redress from the
circuit court under § 58.1-1825. The Tax Commissioner may decide such
claim on the merits in the manner provided in § 58.1-1822 for appeals
under § 58.1-1821, or may, in his discretion, hold such claim without
decision pending the conclusion of litigation affecting such claim. The
fact that such claim is pending shall not be a bar to any other action
under this chapter.
§ 58.1-1833. Interest on overpayments or improper collection. —
A. Interest shall be allowed and paid upon the overpayment of any tax
administered by the Department, the refund of which is permitted or
required under the provisions of this article, or on moneys improperly
collected from the taxpayer and refunded pursuant to § 58.1-1822, at
a rate equal to the rate of interest established pursuant to § 58.1-15.
Such interest shall accrue from a date sixty days after payment of the
tax, or sixty days after the last day prescribed by law for such
payment, whichever is later, and shall end on a date determined by the
Department preceding the date of the refund check by not more than thirty
days. Notwithstanding the above, any tax refunded pursuant to a court
order or otherwise as a result of an erroneous assessment shall bear
interest from the date the assessment was paid. No interest will be paid
on sales taxes refunded to a dealer unless the dealer agrees to pass such
interest on to the purchaser.
B.
1. Notwithstanding the provisions of subsection A, if an individual
overpays his individual income tax, the overpayment was for individual
income taxes for the immediately preceding taxable year, and the
overpayment has not been refunded, then interest shall accrue on the
amount of the overpayment, beginning:
(i) thirty days after payment of such tax if the individual filed
his individual income tax return via electronic means; or
(ii) sixty days after payment of such tax if the individual filed his
individual income tax return using a method other than electronic means.
In no case shall interest be paid for the overpayment of the same
tax pursuant to this subsection and subsection A.
2. For the purposes of this subsection, interest shall accrue at a rate
equal to the rate of interest established pursuant to § 58.1-15. Such
interest shall end on a date determined by the Department preceding the
date of the refund check by not more than seven days.
C. For purposes of this section:
1. Any individual income tax deducted and withheld at the source
and paid to the Department, and any amount paid as estimated tax,
shall be deemed to have been paid on the day on which the return
for such year's income was filed; and
2. Any corporate or estate and trust income tax deducted and withheld
at the source and paid to the Department, and any amount paid as
estimated tax, shall be deemed to have been paid on the day on which the
return for such year's income was filed, or the last day prescribed by
law for filing such return, whichever is later; and
3. Any overpayment of tax resulting from the carry-back of a net
operating loss or net capital loss shall be deemed to have been made on
the day on which the return for the year in which the loss occurred was
filed, or the last day prescribed by law for such filing, whichever is
later.
§ 58.1-1821. Application to Tax Commissioner for correction. —
Any person assessed with any tax administered by the
Department of Taxation may, within ninety days from the date
of such assessment, apply for relief to the Tax
Commissioner. Such application shall be in the form
prescribed by the Department, and shall fully set forth the
grounds upon which the taxpayer relies and all facts
relevant to the taxpayer's contention. The Tax Commissioner
may also require such additional information, testimony or
documentary evidence as he deems necessary to a fair
determination of the application. Any person aggrieved by an
action by the Department with respect to a transferred
credit or other tax attribute may apply for relief under
this section or request to join an application already filed
by another person assessed with tax or aggrieved by an
action with respect to the same credit or other tax
attribute. Notwithstanding the provisions of § 58.1-3, the
Tax Commissioner shall have the discretion to permit the
joinder of a party or consolidate proceedings on
applications filed by different taxpayers if the interest of
the party or the applications involve adjustments to credits
or other tax attributes arising from the same transaction or
occurrence, provided that no interests are prejudiced and
the joinder or consolidation advances administrative
economy.
On receipt of a notice of intent to file under this section,
the Tax Commissioner shall refrain from collecting the tax
until the time for filing hereunder has expired, unless he
determines that collection is in jeopardy.
Any person whose tax assessment has been improperly
collected by the Department may apply hereunder to assert a
claim that any amount so collected was exempt from process.
The initial assessment of any tax administered by the
Department of Taxation shall include a notice to the
taxpayer that specifies all of the taxpayer's rights under
this section, including but not limited to the right to have
the Tax Commissioner refrain from collecting the tax upon
the Commissioner's receipt from the taxpayer of a notice of
intent to file for relief under this section.
§ 58.1-1827. Correction of double assessments. —
Irrespective of the foregoing provisions, when it is shown to the
satisfaction of the court that there has been a double assessment in any
case, one of which assessments is proper and the other erroneous, and
that a proper single tax has been paid thereon, the court may order that
such erroneous assessment be corrected, whether the erroneous tax has
been paid or not and even though the application was not made within the
period of limitation, as hereinbefore required.
§ 58.1-1823. Reassessment and refund upon the filing of
amended return or the payment of an assessment. —
A. Any person filing a tax return or paying an
assessment required for any tax administered by the
Department of Taxation may file an amended return with the
Department within the later of:
(i) three years from the
last day prescribed by law for the timely filing of the
return;
(ii) one year from the final determination of any
change or correction in the liability of the taxpayer for
any federal tax upon which the state tax is based, provided
that the refund does not exceed the amount of the decrease
in Virginia tax attributable to such federal change or
correction;
(iii) two years from the filing of an amended
Virginia return resulting in the payment of additional tax,
provided that the amended return raises issues relating
solely to such prior amended return and that the refund does
not exceed the amount of the payment with such prior amended
return;
(iv) two years from the payment of an assessment,
provided that the amended return raises issues relating
solely to such assessment and that the refund does not
exceed the amount of such payment; or
(v) one year from the
final determination of any change or correction in the
income tax of the taxpayer for any other state, provided
that the taxpayer previously claimed a credit for such tax
pursuant to § 58.1-332 and that the refund does not exceed
the amount of the decrease in Virginia tax attributable to
such change or correction.
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.
The Department may reduce such refund by the amount of any
taxes, penalties and interest which are due for the period
covered by the amended return, or any past-due taxes,
penalties and interest which have been assessed within the
appropriate period of limitations. Any order of the
Department denying such reassessment and refund, or the
failure of the Department to act thereon within three months
shall, as to matters first raised by the amended return, be
deemed an assessment for the purpose of enabling the
taxpayer to pursue the remedies allowed under this chapter.
B. Notwithstanding the statute of limitations established in
this section, any retired employee of a political
subdivision of the Commonwealth, established pursuant to
Chapter 627 of the 1958 Acts of Assembly, may file an
amended individual income tax return until May 1, 1990, for
taxable years beginning on and after January 1, 1985, and
before January 1, 1986, for taxes paid on retirement income
exempt pursuant to § 58.1-322.
C. Notwithstanding the statute of limitations contained in
subsection A, any individual who claimed an age subtraction
on his 1990 individual income tax return may file an amended
individual income tax return on July 1, 1994, for
taxable years beginning on and after January 1, 1990, and
ending before January 1, 1991, to claim an income deduction
as provided in § 58.1-322 D 5 in lieu of the income
subtraction originally claimed.
§ 8.01-261. Category A or preferred venue. —
In the actions listed in this section, the forums enumerated shall be
deemed preferred places of venue and may be referred to as "Category A"
in this title. Venue laid in any other forum shall be subject to
objection; however, if more than one preferred place of venue applies,
any such place shall be a proper forum. The following forums are
designated as places of preferred venue for the action specified:
1. In actions for review of, appeal from, or enforcement of state
administrative regulations, decisions, or other orders:
a. If the moving or aggrieved party is other than the Commonwealth or
an agency thereof, then the county or city wherein such party:
(1) Resides;
(2) Regularly or systematically conducts affairs or business activity;
or
(3) Wherein such party's property affected by the administrative action
is located.
b. If the moving or aggrieved party is the Commonwealth or an agency
thereof, then the county or city wherein the respondent or a party
defendant:
(1) Resides;
(2) Regularly or systematically conducts affairs or business activity;
or
(3) Has any property affected by the administrative action.
c. If subdivisions 1 a and 1 b do not apply, then the county or city
wherein the alleged violation of the administrative regulation,
decision, or other order occurred.
2. Except as provided in subdivision 1 of this section, where the
action is against one or more officers of the Commonwealth in an official
capacity, the county or city where any such person has his official
office.
3. The county or city wherein the subject land, or a part thereof, is
situated in the following actions:
a. To recover or partition land;
b. To subject land to a debt;
c. To sell, lease, or encumber the land of persons under disabilities;
d. [Repealed.]
e. To sell wastelands;
f. To establish boundaries;
g. For unlawful entry or detainer;
h. For ejectment; or
i. To remove clouds on title.
4. [Reserved.]
5. In actions for writs of mandamus, prohibition, or certiorari, except
such as may be issued by the Supreme Court, the county or city wherein is
the record or proceeding to which the writ relates.
6. In actions on bonds required for public contract, the county or city
in which the public project, or any part thereof, is situated.
7. In actions to impeach or establish a will, the county or city
wherein the will was probated, or, if not probated at the time of the
action, where the will may be properly offered for probate.
8., 9. [Repealed.]
10. In actions on any contract between a transportation district and a
component government, any county or city any part of which is within such
transportation district.
11. In attachments,
a. With reference to the principal defendant and those liable with or
to him, venue shall be determined as if the principal defendant were the
sole defendant; or
b. In the county or city in which the principal defendant has estate or
has debts owing to him.
12. [Repealed.]
13.
a. In any action for the collection of state, county, or municipal
taxes, any one of the following counties or cities shall be deemed
preferred places of venue:
(1) Wherein the taxpayer resides;
(2) Wherein the taxpayer owns real or personal property;
(3) Wherein the taxpayer has a registered office, or regularly or
systematically conducts business; or
(4) In case of withdrawal from the Commonwealth by a delinquent
taxpayer, wherein venue was proper at the time the taxes in question were
assessed or at the time of such withdrawal.
b. In any action for the correction of an erroneous assessment of state
taxes and tax refunds, any one of the following counties or cities shall
be deemed preferred places of venue:
(1) Wherein the taxpayer resides;
(2) Wherein the taxpayer has a registered office or regularly or
systematically conducts business;
(3) Wherein the taxpayer's real or personal property involved in such a
proceeding is located; or
(4) The Circuit Court of the City of Richmond.
14. In proceedings by writ of quo warranto:
a. The city or county wherein any of the defendants reside;
b. If the defendant is a corporation, the city or county where its
registered office is or where its mayor, rector, president, or other
chief officer resides; or
c. If there is no officer or none of the defendants reside in the
Commonwealth, venue shall be in the City of Richmond.
15. In proceedings to award an injunction:
a. To any judgment or judicial proceeding of a circuit court, venue
shall be in the court in the county or city in which the judgment was
rendered or such proceeding is pending;
b. To any judgment or judicial proceeding of a district court, venue
shall be in the circuit court of the county or city in which the judgment
was rendered or such proceeding is pending; or
c. To any other act or proceeding, venue shall be in the circuit court
of the county or city in which the act is to be done, or being done, or
is apprehended to be done or the proceeding is pending.
16. [Repealed.]
17. In disbarment or suspension proceedings against any
attorney-at-law, in the county or city where the defendant:
a. Resides;
b. Has his principal office or place of practice when the proceeding is
commenced;
c. Resided or had such principal office or place of practice when any
misconduct complained of occurred; or
d. Has any pending case as to which any misconduct took place.
18. In actions under the Virginia Tort Claims Act, Article 18.1 (§
8.01-195.1 et seq.) of Chapter 3 of this title:
a. The county or city where the claimant resides;
b. The county or city where the act or omission complained of
occurred; or
c. If the claimant resides outside the Commonwealth and the act or
omission complained of occurred outside the Commonwealth, the City of
Richmond.
19. In suits for annulment, affirmance, or divorce, the county or city
in which the parties last cohabited, or at the option of the plaintiff,
in the county or city in which the defendant resides, if a resident of
this Commonwealth, and in cases in which an order of publication may be
issued against the defendant under § 8.01-316, venue may also be in the
county or city in which the plaintiff resides.
20. In distress actions, in the county or city when the premises
yielding the rent, or some part thereof, may be or where goods liable to
distress may be found.
