Extensions Of Time

57.1. General. - Pursuant to W. Va. Code §11-21-57(a) the Tax Commissioner has discretionary authority to grant a reasonable extension of time for the payment of tax or estimated tax including any installments thereof, or for the filing of any return, declaration, statement or other document required to be filed under the provisions of the West Virginia Personal Income Tax Act, on such terms and conditions as he may require. Except for a taxpayer who is outside the United States, no such extension shall exceed six months.

57.1.1. Extensions Of Time For Filing Returns.

57.1.1.1. Automatic Extension Of Time. - Except as provided under Subsection 57.1.1.4 of this regulation, an extension of time for the filing of a taxpayer's federal income tax return shall automatically extend the time for the filing of the West Virginia Personal Income Tax Return for the same period as the extension for filing such federal return. A copy of the federal form requesting an extension of time must be attached to the West Virginia annual return when said return is filed. While an extension of time for filing a federal income tax return automatically extends the time for filing the West Virginia income tax return, it does not extend the time for payment of the balance of the West Virginia tax due.

57.1.1.2. Extension By Application. - An extension of time to file the West Virginia Personal Income Tax Return may be granted by the Tax Commissioner upon written application by the taxpayer where no extension of time has been sought for federal income tax purposes. No such extension shall be granted unless the taxpayer applies in writing to the Tax Commissioner and sets forth a full recital of the causes for the delay. The application must be filed on or before the regular due date of the return. Failure to timely file a written application for an extension constitutes automatic denial of such extension. An extension of time for filing a return does not operate to extend the time for payment of the tax or any part thereof.

57.1.1.2.a. An extension of time to file a return on an original application will be limited to a period of time not in excess of one hundred twenty (120) days. Longer periods of time will not be granted by the Tax Commissioner unless sufficient need for such extended period is clearly established by the taxpayer.

57.1.1.3. Where an additional extension of time is requested by a taxpayer, a copy of the last extension granted must be attached to the new request in every instance and such request must be made in writing and filed on or before the expiration of the preceding extension. This additional extension request must also contain a full recital of the causes necessitating further delay.

57.1.1.4. Limitation On Extensions To File Returns. - In no event shall any extension of time to file a West Virginia Personal Income Tax Return be granted in excess of six (6) months for taxpayers within the United States.

57.1.1.5. Payment Of Tax. - A taxpayer who is granted an extension of time for filing his or her annual income tax return whether such extension is automatic under Subsection 57.1.1.1 or by application under Subsection 57.1.1.2 of this regulation) is not automatically granted a similar extension for the payment of tax otherwise due on or before the regular due date of the return. Where an extension of time to file the West Virginia return has been granted and no corresponding extension of time for payment of tax has been granted or has been denied, the taxpayer must pay the balance of any tax on or before the statutory due date of the return. Failure to so pay will act to revoke any extension of time granted to file the West Virginia return.

57.1.1.5.a. If a taxpayer desires an extension of time for paying his or her West Virginia income tax, an application for such extension must be timely filed with the Tax Commissioner as provided in Subsection 57.1.3 of this regulation.

57.1.2. Extensions For Filing Declaration Of Estimated Tax.

57.1.2.1. An application for an extension of time for filing a declaration, or amended declaration, of estimated tax must be in writing, addressed to the Tax Commissioner, contain a full recital of the cause for the delay and be filed on or before the due date of the declaration of estimated tax. Payment of estimated tax must accompany the request for extension of time to file the declaration unless an extension of time to pay has been granted prior to the due date of the estimated tax payment.

57.1.2.2. An extension of time granted to a taxpayer for filing a declaration of estimated tax does not automatically extend the time for paying the first (1st) installment of estimated tax for the same period, or any subsequent installments that become due during the extension period for filing the declaration.

57.1.3. Extension Of Time For Payment Of Tax. - The Tax Commissioner may grant a reasonable extension of time for the payment of tax shown, or required to be shown, on the annual return, or for the payment of any installment of estimated tax for a period, such extension of time not to exceed six (6) months for a taxpayer who is not outside the United States. The basis for determining whether to grant an extension of time for payment depends on the taxpayer's ability to establish that payment of tax at the required date would work an undue hardship on the taxpayer.

57.1.3.1. Application For Extension. - A taxpayer desiring an extension of time for payment of tax must submit a written request for such extension detailing the assets and liabilities of the taxpayer, and the request must be accompanied by evidence of the undue hardship that would result to the taxpayer if the extension were to be denied. Application for extension must be filed on or before the date prescribed for payment of the tax. Failure to timely file a written request for an extension of time for payment constitutes automatic denial of such request.

57.1.3.2. Undue Hardship Required For Extension. - An extension of time for payment of tax will be granted only upon a satisfactory showing that payment of tax at the time prescribed by statute will result in undue hardship. The extension will not be granted on a general statement of hardship.

57.1.3.2.a. Undue Hardship Defined. - The term "undue hardship" means more than an inconvenience to the taxpayer. It must appear that substantial financial loss, such as selling assets at a sacrifice price, will result to the taxpayer from making payment on the due date of the amount with respect to which the extension is desired. If a market exists for assets owned by the taxpayer, the sale of such assets at the current market price is not ordinarily considered as resulting in undue hardship.

57.1.3.2.b. Except in extremely unusual circumstances, an extension of time to pay will not be granted to a taxpayer who can borrow the amount needed to make timely payment from a bank or other financial organization or institution. It is to be presumed that a taxpayer has the ability to borrow until the taxpayer affirmatively proves otherwise.

57.1.4. Filing Returns And Declarations, And Paying Tax Where Extensions Have Been Granted.

57.1.4.1. Where an extension of time to file the annual return or a declaration of estimated tax has been granted the return or declaration must be filed on or before the date the extension period expires and the return or declaration must include a copy of the document granting the extension. In the case of an automatic extension discussed under Subsection 57.1.1.1 of this regulation, a copy of the federal application for automatic extension must be attached to the West Virginia income tax return filed on or before the expiration of the extension.

57.1.4.2. Where an extension of time has been granted for the payment of tax, the taxpayer shall remit, on or before the last day of the extension period, the entire tax due plus nonwaivable interest and or nonwaivable additions to tax as provided under W. Va. Code §§11-10-17, 11-10-17a and 11-10-18a.

57.1.4.3. Under no circumstances shall an extension to file a return or declaration be construed to automatically extend the time for payment of tax otherwise due. Likewise, an extension of time to pay shall not constitute an extension of time to file.

57.2. Amount Determined As Deficiency. - The Tax Commissioner may extend the time for payment of an amount he determines to be a deficiency of the tax imposed under the provisions of the West Virginia Personal Income Tax Act for a period not to exceed eighteen (18) months from the date fixed for payment of the deficiency so determined. In exceptional cases, a further period of time not to exceed twelve (12) months may be granted. An extension under this Subsection may be granted only where it is established to the satisfaction of the Tax Commissioner that payment of the deficiency upon the date fixed for payment thereof will result in undue hardship to the taxpayer. (See Subsection 57.1.3.2.a for a definition of the term "undue hardship").

57.2.1. No Extension For Certain Deficiencies. - No extension shall be granted under Subsection 57.2 of this regulation for any deficiency of tax, additions to tax, penalties or other charges if such deficiency is due to negligence, intentional disregard of Tax Department rules and regulations, or to fraud with intent to evade tax.

57.2.2. Application For Extension Of Time For Payment Of Amount Determined As Deficiency. - Taxpayers seeking an extension of time for payment of an amount determined to be a deficiency shall file a written request with the Tax Commissioner for such an extension on or before the time fixed by the Tax Commissioner for payment of the deficiency. Such request shall set forth the relevant facts including a statement of the assets and liabilities of the taxpayer, the reason for the taxpayer's inability to pay the amount determined as a deficiency and a statement of the undue hardship that would result to the taxpayer if the extension were to be denied.

57.2.3. An extension of time for the payment of an amount determined to be a deficiency shall not constitute an extension of time for filing any other return or document due during the extended period for payment.

57.2.4. No extension of time shall be granted for the payment of an amount determined to be a deficiency unless the Tax Commissioner finds that exceptional circumstances exist and that to require payment of the deficiency at the date prescribed by the Tax Commissioner would work an undue hardship on the taxpayer.

57.2.5. If the time for payment of an amount determined to be a deficiency is extended, nonwaivable additions to tax at the rate established under W. Va. Code §11-10-18a and accruing from the statutory due date of the tax until the tax and all additions relating to the deficiency are paid, shall be added to such tax.

57.3. Claims In Bankruptcy Or Receivership Proceedings. - An extension of time for payment of any portion of a claim for tax allowed in bankruptcy, receivership or similar proceedings, which is unpaid, may be granted by the Tax Commissioner, subject to the same provisions and limitations as in the case of a deficiency in such tax as detailed under Subsection 57.2 of this regulation.

57.4. Furnishing Of Security. - As a prerequisite to granting an extension of time for payment of any tax or deficiency, the Tax Commissioner may require the taxpayer to furnish a bond or other security. Such bond or other security shall be in an amount not exceeding twice the amount of any tax or deficiency for which the extension of time for payment is granted.