Final Regulations Govern Establishing Evidence of Delivery to the IRS

The IRS issued final regulations providing guidance on how taxpayers can prove the timely delivery of physical documents to the IRS or the Tax Court, absent direct proof of delivery (T.D. 9543). The regulations provide that proper use of registered or certified U.S. mail or a private delivery service, under criteria to be established by the IRS, will provide prima facie evidence of delivery.

Sec. 7502(c) establishes that if “any return, claim, statement, or other document” is sent to the IRS or the Tax Court by registered mail, the registration will serve as prima facie evidence of delivery. The IRS has previously extended this treatment to certified mail, too, under authority of Sec. 7502. The federal courts have split over the question of whether Sec. 7502(c) establishes the exclusive means to establish prima facie evidence of delivery so that taxpayers can raise a presumption of delivery only when they have used registered or certified mail.

Given the split in the courts, the final regulations are designed to clarify the prima facie evidence of delivery rule. Under the regulations, taxpayers will be able to establish prima facie evidence of delivery if they use a private delivery service under criteria that the IRS will establish in future guidance. However, direct proof of actual delivery, proof of proper use of registered or certified mail, and proof of proper use of a private delivery service designated in the future guidance will be the only ways taxpayers will be able to establish prima facie evidence of delivery of documents that have a filing deadline prescribed by the internal revenue laws.

Some commentators had suggested that additional services offered by the U.S. Postal Service, such as priority mail and delivery confirmation, be permitted to establish prima facie evidence of delivery. In the IRS’ view, because Sec. 7502 mentions only registered and certified mail, it does not have the authority to treat additional U.S. Postal Service services as prima facie evidence of delivery. For the same reason, it rejected a suggestion that regular first-class mail should suffice to establish prima facie evidence of delivery.

The final regulations apply to any payment or document delivered in an envelope postmarked after September 21, 2004.