By Suzanne Palms and Pilar Mata

The Washington Department of Revenue determined that taxpayers have a right to rely on written but not oral instructions from the Department of Revenue. The taxpayer operated an Internet marketing business and sold its services to customers both inside and outside the state. In June 2011, the taxpayer amended its excise tax returns and requested a refund claiming that most of its sales were made outside the state and that, based on the new apportionment method set forth in Rule 19402, effective June 1, 2010, the taxpayer was due a refund of taxes paid on sales that should have been apportioned out of state. The Department granted the refund. Subsequently, the Department audited the taxpayer’s returns and determined that the taxpayer had incorrectly applied the apportionment method. The taxpayer explained that it had applied the apportionment methodology per the instructions given over the telephone by a Department representative. The auditor nonetheless redetermined the taxpayer’s apportionable income and issued an assessment that included penalties and interest. The taxpayer appealed, arguing that the assessment should be waived because of its reliance on the representative’s instructions. On appeal, the Department determined the assessment was properly calculated and that although RCW 82.32A.020 entitles a taxpayer to the right to rely upon written advice from the Department, taxpayers do not have the right to rely upon oral advice pursuant to Excise Tax Advisory (ETA) 3065.  ETA 3065 reasons that taxpayers cannot rely upon the Department’s oral instructions because there is: (1) no record of facts that were presented to the Department’s representative; (2) no record of instructions or information provided by the Department’s representative, which could have been incorrect or incomplete; and (3) no evidence that the taxpayer accurately understood or followed the instructions. A word to the wise: Most, if not all, states only allow taxpayers to rely on written advice. Washington Tax Det. No. 13-0397, 33 WTD 424 (August 28, 2014).