58.1-1021.04 - Failure to file return; fraudulent return; penalties; interest; overpayment of tax.
§ 58.1-1021.04. Failure to file return; fraudulent return; penalties;interest; overpayment of tax.
A. When any distributor fails to make any return or pay the full amount ofthe tax required by this article, there shall be imposed a specific penaltyto be added to the tax in the amount of five percent if the failure is fornot more than one month, with an additional two percent for each additionalmonth, or fraction thereof, during which the failure continues, not to exceed20 percent in the aggregate. In no case, however, shall the penalty be lessthan $10 and such minimum penalty shall apply whether or not any tax is duefor the period for which such return was required. If such failure is due toprovidential or other good cause shown to the satisfaction of the TaxCommissioner, such return with or without remittance may be acceptedexclusive of penalties. In the case of a false or fraudulent return wherewillful intent exists to defraud the Commonwealth of any tax due under thisarticle, or in the case of a willful failure to file a return with the intentto defraud the Commonwealth of any such tax, a specific penalty of 50 percentof the amount of the proper tax shall be assessed. All penalties and interestimposed by this article shall be payable by the distributor and collectibleby the Department in the same manner as if they were a part of the taximposed.
B. It shall be prima facie evidence of intent to defraud the Commonwealth ofany tax due under this article when any distributor reports his purchases at50 percent or less of the actual amount.
C. Interest at a rate determined in accordance with § 58.1-15 shall accrue onthe tax until the same is paid.
No deficiency, interest or penalty shall be assessed for any month after theexpiration of three years from the date set for the filing of the return forsuch month, except in cases of fraud, or where no return has been filed forsuch month.
D. If the Tax Commissioner determines that the amount paid the Commonwealthunder this article in regard to any monthly return was greater than theamount of tax due the Commonwealth, the excess may be taken as a credit bythe distributor against a subsequent month's tax imposed under this article.However, if such distributor requests a refund, such excess shall be refundedto the distributor within 45 days of the request. The refund shall includeinterest at the rate provided in § 58.1-15. Interest on such refunds shallaccrue from the due date of the return to which such excess is attributableto or the date such excess was paid to the Department, whichever is later,and shall end on a date determined by the Department preceding the date ofthe refund check by not more than seven days.
(2004, Sp. Sess. I, c. 3; 2005, c. 71.)