Establishing Proof of Timely Mailing Under the IRS Mailbox Rule

Partner, Glast Phillips Murray Zopolsky, P.C.

TXCPA’s Federal Tax Policy Committee recently received an inquiry about the proper “proof of mailing” procedures for submitting remittances and correspondence to the IRS—particularly in situations where mail may not be opened or processed promptly, such as during a government shutdown. In this article, Ken Horwitz explains how to establish proof of timely mailing under the IRS “mailbox rule” noting proper procedures in all situations.

The rules for how to deliver paper documents to the IRS (or the Tax Court) so as to ensure compliance with filing deadlines are frequently misunderstood.

There is a simple rule in ANY mailing to the IRS, the Tax Court or other government agency that eliminates risk of a successful assertion of non-timely filing – whether or not (or when) the mailing is actually received by the IRS, etc.:

The mailing should occur by U.S. Post Office (USPO) certified mail, return receipt requested, with the white certified mail receipt properly notated as to envelope contents. The mailing should occur at a USPO post office with the white certified mail receipt stamped at the U.S. post office at the time of mailing. You must retain the stamped white certified mail receipt for your files. (This process does NOT include mailing with a mail carrier or a private postbox service.) See Section 7502 of the Internal Revenue Code.

In order to preserve proof, you should then take the retained USPO stamped receipt and attach it to an exact copy of the mailed document and either scan it into a computer properly associated with the correct client file and/or your permanent paper file. This should be your ordinary business practice. This procedure for proof of mailing is supported by numerous court decisions.

Any deviation from the above-described certified mail process runs a risk that the USPO will fail to timely deliver with a related significant risk of failure of timely filing. When the proper certified mail process is followed, the date of actual receipt of the documents by the addressee (IRS, etc.) becomes irrelevant because the filing occurs with the date of the USPO stamped white certified mail receipt and that mailing date is the date of filing. It becomes irrelevant as to whether the green card is ever returned (although if you receive the green card, it should also be associated with your file) or even whether the package was ever actually received by the addressee.

There are also regulatory rules under Section 7502 dealing with delivery by approved private delivery services and electronic filing, if either of those processes is desired. Care must be taken in such instances to follow the regulatory rules explicitly.

Simple mailing (as opposed to the certified mail process as discussed above) carries the risk as to whether the USPO date stamped on the envelope meets the required date for the timely filing (or even whether there is a legible USPO stamped date on the envelope at all). Unfortunately, the USPO has a current record of dismal failure to meet its delivery time goals. There are potential consequential risks for failure to observe these precise certified mailing rules, including the risk of significant tax penalties and/or a successful malpractice case.