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  Copyright© 2007, 2008 & 2011 Colin M. Cody, CPA and TraderStatus.com, LLC, All Rights Reserved.
 
Let's start off by addressing a common misconception, perpetrated by U.S. post office employees and even some IRS employees.  Let it be clearly understood that "proof of filing" and "proof of delivery" is not at all the same thing as proof of mailing or even hand delivery to an IRS office.  With very few exceptions, only certified mail should be used for delivering important paper documents to the IRS.

Date Considered Filed and Timely Mailed/Timely Filed Exception

A tax return filed before its due date is deemed filed on the due date (§6513(a))  A taxpayer seeking to establish that a return is timely filed can prove it by showing either:

  • physical delivery to the IRS;
  • proof of the postmark on the envelope in which the return was mailed; or
  • by showing the registered or certified mail receipt of the mailed return (§7502(a). See Regs. §301.7502-1(c)(2)) or receipt of a designated private delivery service. (§7502(f). See Notice 2004-83)
  • On August 23, 2011 IRS issued final regulations §301.7502-1 which specified:
    • The extra cost to obtain certified mail ($2.80) or registered mail ($10.60) is not substantial. Less expensive and other USPS services will not be acceptable, including specifically: Priority Mail, Cert of Mailing, Express Mail Receipt, Delivery Confirmation Receipt and Signature Confirmation.
    • Proper use of Certified Mail or Registered Mail establish prima facie evidence of delivery of a document to the IRS (but not delivery of a payment of tax)
    • Proper use of a duly designated PDS (such as certain services by FedEx and UPS) may be used in lieu of Certified Mail or Registered Mail 

      Ed. suggestion:
      do not take the chance that you are totally up to date on the specific services and what is the "proper use" of those services.  Use certified mail at a post office counter with hand canceling and scanning of the bar code, don't accept substitutes.  Do not use a postage meter and a drop off in a box for for pickup without cancellation and scanning, do not use a post office kiosk, do not use alternative postal acceptance stations.

Filing on time. Your paper return is filed on time if it is mailed in an envelope that is properly addressed, has enough postage, and is postmarked by the due date. If you send your return by registered mail, the date of the registration is the postmark date. The registration is evidence that the return was delivered. If you send a return by certified mail and have your receipt postmarked by a postal employee, the date on the receipt is the postmark date. The postmarked certified mail receipt is evidence that the return was delivered.

Private delivery services. If you use a private delivery service designated by the IRS to send your return, the postmark date generally is the date the private delivery service records in its database or marks on the mailing label. The private delivery service can tell you how to get written proof of this date.

The following are designated private delivery services.

  • DHL Express (DHL): DHL Same Day Service, DHL Next Day 10:30 am, DHL Next Day 12:00 pm, DHL Next Day 3:00 pm, and DHL 2nd Day Service.
  • Federal Express (FedEx): FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2Day, FedEx International Priority, and FedEx International First.
  • United Parcel Service (UPS): UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.

CAUTION: Private delivery services cannot deliver items to P.O. boxes. You must use the U.S. Postal Service to mail any item to an IRS P.O. box address.


IRS PROPOSED RULES (REG-138176-02) ON TIMELY MAILING TREATED AS TIMELY FILING  REG-138176-02  RIN 1545-BA99 Timely Mailing Treated As Timely Filing

The IRS currently accepts only a registered or certified mail receipt to establish a presumption of delivery if the IRS has no record of ever having received the document in question. This policy not only is consistent with section 7502(c) but also provides taxpayers with certainty that, under the Code, a certified or registered mail receipt will establish prima facie evidence of delivery. Accordingly, the proposed regulations merely clarify and confirm current IRS practice under the existing regulations. These proposed regulations provide that the final regulations, to which these proposed regulations relate, will be effective for all documents mailed after the publication date of these proposed regulations.


§301.7502-1 Timely mailing of documents and payments treated as timely filing and paying.

301.7502-1(e)

301.7502-1(e)(1) Other than direct proof of actual delivery, proof of proper use of registered or certified mail is the exclusive means to establish prima facie evidence of delivery of a document to the agency, officer, or office with which the document is required to be filed. No other evidence of a postmark or of mailing will be prima facie evidence of delivery or raise a presumption that the document was delivered.

301.7502-1(g)

301.7502-1(g)(4) Registered or certified mail as the means to prove delivery of a document. The last two sentences of paragraph (e)(1) of this section, when published at final regulations, will apply to all documents mailed after September 21, 2004.

/s/ Mark E. Matthews

Deputy Commissioner for Services and Enforcement


To further beat a dead horse, because people seem to love to argue the point that they feel that they can use less-expensive US Postal Service Delivery Confirmation Receipts, or business Postage Meters (with or without the stamped date rolled back), or  the more-expensive FedEx and other "better" delivery services, or even making physical hand delivery of documents at the IRS offices.

These other methods should not be used.  Over the years we've seen too many times taxpayer's "improving" on their CPA's specific instructions to use certified mail with return receipt requested (the green post card) and then end up in trouble when the document is subsequently lost or misplaced by the USPS or the IRS.

The law is clear and simple in this regard and these "improvements" thought up by taxpayers, are anything but...



Timely Mailing/Timely Filing

In General
A tax return is filed when it is received by the IRS. 27 A return is deemed timely filed on the date of the postmark of the envelope or the date a receipt is issued by the post office for either certified or registered mail. 28 Where the postmark shows that a return was mailed on or before a due date, the return is considered timely filed regardless of when it is received by the IRS. 29 However, where a timely mailed return is lost in the mail, the return is not considered filed - the taxpayer assumes the risk of nondelivery and cannot thus presume the timely filing of a return unless the return is sent by registered or certified mail. 30 If the return is mailed after the due date, it is not considered filed until actually received by the IRS. 31 In accordance with IRS policy, a return mailed by a taxpayer in a foreign country will be accepted as timely if mailed from and officially postmarked by the country on or before midnight of the last date prescribed for filing, including any extension of time for such filing. 32

/Footnote/ 27 Miller v. U.S., 784 F.2d 728, 730 (6th Cir. 1986).
/Footnote/ 28 §7502. See Regs. §301.7502-1(c)(1) and 301.7502-1(c)(2).
/Footnote/ 29 Hotel Equities Corp. v. Comr., 65 T.C. 528 (1975), aff'd, 546 F.2d 725 (7th Cir. 1976). See also Mitchell Est. v. Comr., 250 F.3d 696 (9th Cir. 2001) (Deficiency notice for estate taxes was timely; §7502 mailbox rule is inapplicable to tax return filed on timely basis under §7503).
/Footnote/ 30 Walden v. Comr., 90 T.C. 947 (1988).
/Footnote/ 31 Regs. §301.7502-1(c)(1)(ii).
/Footnote/ 32 Rev. Rul. 2002-23, 2002-18 I.R.B. 811. See IRS Policy Statement P-2-9; CCA 200012085.

Personal delivery of a tax return to an IRS agent does not constitute a filing that begins the running of the limitations period on assessment since the agent was not authorized to accept such returns for filing. 33 Where an IRS agent used the returns to formulate a request for information from the taxpayer is not considered a filing that begins the running of such limitations period. 34 The taxpayer's intent and conduct in these regards are relevant. 35

/Footnote/ 33 Metals Refining Limited v. Comr., T.C. Memo 1993-115.
/Footnote/ 34 Friedmann v. Comr., T.C. Memo 2001-207, aff'd, 2003-1 USTC ¶50,520 (3d Cir. 2003). See Berenbeim v. Comr., T.C. Memo 1992-272.
/Footnote/ 35 Florsheim Bros. Drygoods Co. v. U.S., 280 U.S. 453, 462 (1930); Allnutt v. Comr., T.C. Memo 2002-311; Friedmann v. Comr., T.C. Memo 2001-207, aff'd, 2003-1 USTC ¶50,520 (3d Cir. 2003). See Lucas v. Pilliod Lumber Co., 281 U.S. 245, 249 (1930).

U.S. Mail
If a return is mailed by the taxpayer by ordinary mail but is lost by the U.S. Postal Service before delivery to the IRS, the return is not deemed filed. The taxpayer generally bears the risk of non-delivery, 36 requiring the taxpayer to prove delivery of the return/form to the postal service. 37 To avoid this result, a taxpayer should mail the return by certified or registered mail 38 or by one of the IRS designated private delivery services. If the return is sent by U.S. registered mail, the date of registration of the document is treated as the postmark date. If the return is sent by U.S. certified mail and the sender's receipt is postmarked by the postal employee to whom the document or payment is presented, the date of the U.S. postmark on the receipt is treated as the postmark date of the return. 39 The return is deemed to be filed on the date of the postmark stamped on the envelope. 40

/Footnote/ 36 Surowka v. U.S., 909 F.2d 148 (6th Cir. 1990); Walden v. Comr., 90 T.C. 947 (1988). See also Higbee v. Comr., T.C. Summary Op. 2002-128; Smith v. Comr., T.C. Summary Op. 2001-130.
/Footnote/ 37 Some courts allow proof of timely postmark by extrinsic evidence where the envelope containing the return is lost by the IRS. Lewis v. U.S., 144 F.3d 1220 (9th Cir. 1998) (Taxpayer offered strong circumstantial evidence of timely mailing; IRS must bear adverse inference drawn when it fails to preserve envelope); Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Wood Est. v. Comr., 909 F.2d 1155 (8th Cir. 1990) (Affidavit of postal clerk sufficient to establish that taxpayer had filed return). See Sorrentino v. U.S., 383 F.3d 1187 (10th Cir. 2004) (Timely mailing/timely filing provisions of §7502 do not entirely supplant common law mailbox rule, but taxpayer must offer proof of postmark or dated receipt, not just self-serving testimony). But see Prop. Regs. §301.7502-1(e)(1), REG-138176-02, 69 Fed. Reg. 56377 (9/21/04) (Other than direct proof of actual delivery, proof of proper use of registered or certified mail is the exclusive means to establish prima facie evidence of delivery of a document to the IRS).
/Footnote/ 38 Walden v. Comr., 90 T.C. 947 (1988).
/Footnote/ 39 Regs. §301.7502-1(c)(2). The rules regarding use of a designated private delivery service are discussed in ¶3860.01.A.2.c., below.
/Footnote/ 40 Regs. §301.7502-1(a). See §7502(f), which allows returns and documents sent by designated private delivery services to take advantage of the timely mailing/timely filing rules discussed further in ¶3880. See also SCA 1998-051 (12/17/98) (U.S. Postal Service Certificate of Mailing (Form 3817) does not conclusively prove date of mailing of tax return).

Additionally, the filing of an amended return does not affect the statutory period of limitation, which begins to run on the filing of the original return. 41

/Footnote/ 41 Robinson Est. v. Comr., 101 T.C. 499 (1993); Northern Anthracite Coal Co. v. Comr., 21 B.T.A. 1116 (1931).

Private Delivery Services
Taxpayers can use commercial or private delivery services and take advantage of the timely mailing/timely filing rule. 42 Private delivery services are defined as any delivery service provided by a trade or business and "designated" as such by the Secretary. The Secretary may designate a delivery service only if the Secretary determines that such service-

  • Is available to the general public;
  • Is at least as timely and reliable on a regular basis as the U.S. mail;
  • Records electronically to its data base, kept in the regular course of its business, or marks on the cover in which any item is to be delivered, the date on which such item was given to such trade or business for delivery, and
  • Meets such other criteria as the Secretary may prescribe. 43

/Footnote/ 42 §7502(f). See Rev. Rul. 2002-23, 2002-18 I.R.B. 811 (For taxpayer in a foreign country, the IRS deems timely filed a document required or permitted to be filed by the IRS or by the Tax Court if that document is given to a PDS designated for international delivery before midnight on last day prescribed for filing).
/Footnote/ 43 §7502(f).

The IRS has designated certain delivery services of three private companies as "designated private delivery services." Thus, the types of services designated for these purposes are:

  • DHL Express (DHL) - DHL Same Day Service, DHL Next Day 10:30 am, DHL Next Day 12:00 pm, DHL Next Day 3:00 pm, and DHL 2nd Day Service.
  • Federal Express - Priority Overnight, Standard Overnight, 2 Day service, International Priority, and International First.
  • United Parcel Service - Next Day Air, Next Day Air Saver, 2nd Day Air, 2nd Day Air A.M., Worldwide Express Plus, and Worldwide Express. 44

/Footnote/ 44 Notice 2004-83, 2004-52 I.R.B. 1030, modifying Notice 2002-62, 2002-39 I.R.B. 574, modifying Notice 2001-62, 2001-40 I.R.B. 307, modifying Notice 99-41, 1999-2 C.B. 325, modifying Notice 97-26, 1997-1 C.B. 413, and Rev. Proc. 97-19, 1997-1 C.B. 644. In Notice 2002-62, FedEx International Priority, and FedEx International First were added to the list published in Notice 2001-62. Both of these services provide delivery services to the United States from foreign countries.

No other service offered by these companies qualifies for the timely mailing/timely filing rule. Moreover, taxpayers using companies not on this list will not qualify for the timely mailing/timely filing rule. The designations are effective until the IRS issues a revised list. The IRS will publish a new list only when a designated private delivery service is added to, or removed from, the current list. To qualify for the timely mailing/timely filing rule, taxpayers must make sure that the designated private delivery service actually is given or picks up the document on or before its due date. 45

/Footnote/ 45 Notice 2004-83, 2004-52 I.R.B. 1030, modifying Notice 2002-62, 2002-39 I.R.B. 574, modifying Notice 2002-62, 2002-39 I.R.B. 574, modifying Notice 2001-62, 2001-40 I.R.B. 307, modifying Notice 99-41, 1999-2 C.B. 325, modifying Notice 97-26, 1997-1 C.B. 413, and Rev. Proc. 97-19, 1997-1 C.B. 644. Notice 2004-83 states that the IRS will publish a subsequent notice setting forth a new list only if a designated PDS (or service) is added to, or removed from, the current list, or if there is a change to the application and/or appeal procedures. Delivery services that wish to be designated in time for an upcoming filing season must continue to submit applications by June 30th of the year preceding that filing season, as required by Rev. Proc. 97-19, as modified by Notice 97-50, 1997-2 C.B. 305. Notice 97-26 continues to provide special rules used to determine the date that will be treated as the postmark date for purposes of §7502.


IR Code §7502(f)(3) Equivalents Of Registered And Certified Mail
The Secretary may provide a rule similar to the rule of paragraph (1) with respect to any service provided by a designated delivery service which is substantially equivalent to United States registered or certified mail.

Electronically Filed Returns
To keep up with changing technologies and to encourage electronic filing of returns, Congress authorized the IRS to issue regulations outlining the extent to which the prima facie evidence of delivery and the postmark rules apply to electronic filing. 46

/Footnote/ 46 See §7502(c)(2).

The regulations provide that a document filed electronically with an electronic return transmitter 47 is deemed to be filed on the date of the electronic postmark given by the authorized electronic return transmitter. 48 Thus, if the electronic postmark is timely, the document is considered filed timely although it is received by the agency, officer, or office after the last date, or the last day of the period, prescribed for filing such document. 49

/Footnote/ 47 Regs. §301.7502-1(d)(3)(i). The IRS may enter into an agreement with an electronic return transmitter or prescribe in forms, instructions, or other appropriate guidance the procedures under which the electronic return transmitter is authorized to provide taxpayers with an electronic postmark to acknowledge the date and time that the electronic return transmitter received the electronically filed document. Regs. §301.7502-1(d)(2).
/Footnote/ 48 Regs. §301.7502-1(d)(1).
/Footnote/ 49 Id. An electronic postmark is defined to mean a record of the date and time (in a particular time zone) that an authorized electronic return transmitter receives the transmission of a taxpayer's electronically filed document on its host system. Regs. §301.7502-1(d)(3)(ii). If the taxpayer and a transmitter are in different time zones, the time in the taxpayer's time zone controls the timeliness of the filed document. Id.


§301.7502-1(d) Electronically filed documents--
§301.7502-1(d)(1) In general.
A document filed electronically with an electronic return transmitter (as defined in paragraph (d)(3)(i) of this section and authorized pursuant to paragraph (d)(2) of this section) in the manner and time prescribed by the Commissioner is deemed to be filed on the date of the electronic postmark (as defined in paragraph (d)(3)(ii) of this section) given by the authorized electronic return transmitter. Thus, if the electronic postmark is timely, the document is considered filed timely although it is received by the agency, officer, or office after the last date, or the last day of the period, prescribed for filing such document.

§301.7502-1(d)(2) Authorized electronic return transmitters.
The Commissioner may enter into an agreement with an electronic return transmitter or prescribe in forms, instructions, or other appropriate guidance the procedures under which the electronic return transmitter is authorized to provide taxpayers with an electronic postmark to acknowledge the date and time that the electronic return transmitter received the electronically filed document.

§301.7502-1(d)(3) Definitions--
§301.7502-1(d)(3)(i) Electronic return transmitter.
For purposes of this paragraph (d), the term electronic return transmitter has the same meaning as contained in section 3.01(4) of Rev. Proc. 2000-31 (2000-31 I.R.B. 146 (July 31, 2000))(see Section 601.601(d)(2) of this chapter) or in procedures prescribed by the Commissioner.

§301.7502-1(d)(3)(ii) Electronic postmark.
For purposes of this paragraph (d), the term electronic postmark means a record of the date and time (in a particular time zone) that an authorized electronic return transmitter receives the transmission of a taxpayer's electronically filed document on its host system. However, if the taxpayer and the electronic return transmitter are located in different time zones, it is the taxpayer's time zone that controls the timeliness of the electronically filed document.


 



Refund Claims and the Saturday-Sunday-Holiday Rule of Sec. 7503

When the last day prescribed by federal tax law for per-     forming an act falls on a Saturday, Sunday, or legal holiday, Sec. 7503 treats performance as timely if the act is performed on the next succeeding day that is not a Saturday, Sunday, or legal holiday.

Example 1: If the due date of a corporate taxpayer’s federal income tax return is March 15, 2008, and March 15 is a Saturday, under Sec. 7503 a return filed on Monday, March 17, 2008, will be considered timely. That “extension” applies, however, only if the taxpayer files the return on March 17. If the taxpayer does not, the normal March 15 due date applies for purposes of computing penalties, etc.

In two revenue rulings issued almost 40 years apart, the IRS explored the effect of the Saturday-Sunday-holiday rule on the limitation periods applicable to refund claims.

Limitation Periods

Sec. 6511 provides two limitation periods. The first determines whether a claim for refund is timely; the second determines how much money, if any, can be refunded to the taxpayer, assuming its claim is meritorious. Both limitation periods must be satisfied, because a timely refund claim would be pointless if the taxpayer could not obtain the requested refund.

Sec. 6511(a) provides that in order for a refund claim to be timely it must be filed within three years from the time the relevant return was filed, or two years from the date the tax was paid, whichever is later. As shown in the following example, the interplay between this rule and Sec. 7503 is fairly straightforward.

Example 2: If a taxpayer’s original 2004 return was filed on March 15, 2005, and March 15, 2008, is a Saturday, a refund claim filed on Monday, March 17, 2008, would be considered timely.

Sec. 6511(b) limits the amount that may be refunded. If a taxpayer files a refund claim within three years from the date its return was filed, Sec. 6511(b)(2)(A) provides that the amount of the refund shall not exceed the amount of tax paid during a lookback period that begins on the date the refund claim is filed. The lookback period is three years, plus the period of any extension of time obtained by the taxpayer for filing the relevant return. The interplay between this rule and Sec. 7503 can be complicated.

In Example 2, a refund claim filed on Monday, March 17, 2008, would be timely with respect to an original return that was filed on March 15, 2005. However, applying the lookback rule of Sec. 6511(b)(2)(A) to that situation appears to present a problem for the taxpayer. Tracing back three years from March 17, 2008, only gets to March 17, 2005, and under Sec. 6513(b) the taxpayer’s estimated tax payments for 2004 (as well as any withholding and prior year’s overpayment applied to 2004 estimated tax) are deemed to have been paid on March 15, 2005, which is outside the lookback period.

Rev. Rul. 66-118

The IRS took a pragmatic approach to the situation presented in Example 2 in Rev. Rul. 66-118. While acknowledging that nothing in Sec. 7503 affects the time when tax is paid or deemed paid, the IRS held that imposing the limitation of Sec. 6511(b)(2)(A) “would obviously nullify the full effectiveness” of Sec. 7503. Accordingly, the IRS ruled that Sec. 7503 not only makes the refund claim filed on the Monday at issue timely, but for purposes of the lookback rule of Sec. 6511(b) the filing of the claim is considered to have occurred on the preceding Saturday (i.e., on the actual due date). As a result, the date on which the taxpayer’s withholding credits are deemed paid falls within the lookback period.

Rev. Rul. 2003-41

Rev. Rul. 2003-41 provides guidance on three other factual situations involving refund claims and Sec. 7503.

First, if the due date of a return falls on a Saturday, Sunday, or legal holiday but the taxpayer files its return before the due date (and is not relying on the “timely mailing equals timely filing” rule under Sec. 7502), Sec. 7503 does not apply. Instead, under Sec. 6513(a), the return will be deemed to be filed on the actual due date. Accordingly, in order to be timely, a refund claim must be filed within three years of the actual due date.

Second, if the due date of a return falls on a Saturday, Sunday, or legal holiday and the taxpayer files a valid extension for the return but fails to file its return by the extended due date, for purposes of the “three year plus extensions” lookback period of Sec. 6511(b)(2)(A), Sec. 7503 is not treated as having extended the return’s due date.

For example, assume the facts are the same as in Example 1, except the taxpayer does not file the return until March 31, 2008. Because Sec. 6513(b) treats withholding and estimated tax payments as having been paid as of the actual unextended due date of the return (Saturday, March 15, 2008), in order to obtain a refund the taxpayer must file its claim by March 15, 2011.

A refund claim filed on March 17, 2011, creates something of a paradox. The claim would be timely (since it would be filed within three years of March 31, 2008, the date on which the taxpayer actually filed its 2007 return), but a refund attributable to excess withholding or estimated tax payments would be barred by Sec. 6511(b)(2)(A) because tracing back three years from the March 17, 2011, claim date only gets to March 17, 2008. Since the taxpayer did not file its return on Monday, March 17, 2008, Sec. 7503 is not treated as providing the two-day extension necessary to bring the deemed payment date of March 15, 2008, within the lookback period of Sec. 6511(b)(2)(A).

Third, if the due date of a return falls on a Saturday, Sunday, or legal holiday and the taxpayer files its return on the next succeeding day that is not a Saturday, Sunday, or legal holiday, Sec. 7503 applies and is treated as having extended the due date of the return to that next succeeding day. For example, assume again the facts from Example 1. In this situation, Sec. 7503 is treated as having extended the due date from Saturday, March 15, 2008, to Monday, March 17, 2008. As a result, a refund claim filed on March 17, 2011, would be both timely and effective to obtain a refund. The claim would be timely because it would be filed exactly three years after the return was filed. The taxpayer’s estimated and/or withholding tax payments would be refundable because the date on which they were deemed paid—March 15, 2008—falls within the lookback period of Sec. 6511(b)(2)(A). As in the second situation addressed by Rev. Rul. 2003-41, tracing back three years from the March 17, 2011, claim date only gets to March 17, 2008, but here the taxpayer did file its return on that date. Therefore, Sec. 7503 is treated as providing the two-day extension necessary to bring the deemed payment date of March 15, 2008, within the lookback period of Sec. 6511(b)(2)(A).

From Michael A. Urban, J.D., MLT, Washington, DC


https://aicpa.org/pubs/taxadv/jul2008/clinic5.html

 






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