Td 9543

CFR part or section where
identified and described
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51.8T
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Current OMB
control No.
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Sarah Hall Ingram,
Deputy Commissioner for
Services and Enforcement.
Approved August 12, 2011.
Emily S. McMahon,
Acting Assistant Secretary
of the Treasury (Tax Policy).
(Filed by the Office of the Federal Register on August 8,
2011, 11:15 a.m., and published in the issue of the Federal
Register for August 18, 2011, 76 F.R. 51245)

Section 6651.—Failure to
File Tax Return or To Pay Tax
Notice 2011–76 provides limited penalty relief to
recipients who sold property in 2010 that they acquired from a decedent whose executor elected for
the provisions of section 1022 of the Internal Revenue
Code to apply to such property. See Notice 2011-76,
page 479.

Section 6662.—Imposition
of Accuracy-Related
Penalty on Underpayments
Notice 2011–76 provides limited penalty relief to
recipients who sold property in 2010 that they acquired from a decedent whose executor elected for
the provisions of section 1022 of the Internal Revenue
Code to apply to such property. See Notice 2011-76,
page 479.

Section 7502.—Timely
Mailing Treated as Timely
Filing and Paying
26 CFR 301.7502–1: Timely mailing of documents
and payments treated as timely filing and paying.

T.D. 9543
Timely Mailing Treated as
Timely Filing
AGENCY: Internal Revenue Service
(IRS), Treasury.
ACTION: Final regulations.

2011–40 I.R.B.

SUMMARY: This document contains regulations amending a Treasury Regulation
to provide guidance as to the only ways to
establish prima facie evidence of delivery
of documents that have a filing deadline
prescribed by the internal revenue laws,
absent direct proof of actual delivery. The
regulations provide that the proper use of
registered or certified mail, or a service of a
private delivery service (PDS) designated
under criteria established by the IRS, will
constitute prima facie evidence of delivery. The regulations are necessary to provide greater certainty on this issue and to
provide specific guidance. The regulations
affect taxpayers who mail Federal tax documents to the Internal Revenue Service or
the United States Tax Court.
DATES: Effective Date: These regulations
are effective on August 23, 2011.
Applicability Date: These regulations apply to any payment or document
mailed and delivered in accordance with
the requirements of this section in an envelope bearing a postmark dated after
September 21, 2004.
FOR
FURTHER
INFORMATION
CONTACT: Steven Karon,
(202)
622–4570 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in these final regulations has been
reviewed and approved by the Office of
Management and Budget in accordance
with the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)) under control
number 1545–1899. The collection of
information in these final regulations is
in §301.7502–1. This information is required in order for taxpayers to be able
to establish the postmark date and prima
facie evidence of delivery when using certified or registered mail.
An agency may not conduct or sponsor,
and a person is not required to respond to, a

470

1545–2209

collection of information unless it displays
a valid control number.
Books or records relating to a collection
of information must be retained as long
as their contents might become material in
the administration of any internal revenue
law. Generally, tax returns and return information are confidential, as required by
26 U.S.C. 6103.
Background
This document contains regulations
amending 26 CFR part 301 under section 7502 of the Internal Revenue Code
(Code). Section 7502(a) first appeared
as part of the recodification of the Code
in 1954. Section 7502(a) is commonly
known as the timely mailing/timely filing
rule. Section 301.7502–1 of the Procedure
and Administration Regulations provides
rules for taxpayers to follow to qualify for
favorable treatment under section 7502.
There is a conflict among the Federal circuit courts of appeal as to whether the
provisions in section 7502 provide the
exclusive means to establish prima facie
evidence of delivery of a document to
the IRS or the United States Tax Court.
Specifically, courts have reached differing
conclusions regarding whether a taxpayer
may raise a presumption of delivery of
Federal tax documents to the IRS and the
United States Tax Court only in situations
in which the taxpayer uses registered or
certified mail.
A notice of proposed rulemaking
(REG–138176–02, 2004–2 C.B. 710)
was published in the Federal Register
(69 FR 56377) on September 21, 2004.
The proposed regulations clarified that,
other than direct proof of actual delivery,
the exclusive means to establish prima
facie evidence of delivery of Federal tax
documents to the IRS and the United
States Tax Court is to prove the use of
registered or certified mail. Under section
7502(f)(3), the IRS may extend to a
service provided by a PDS a rule similar
to the prima facie evidence of delivery
rule applicable to certified and registered

October 3, 2011

mail. Prior to the publication of the notice
of proposed rulemaking, the IRS had not
received any comments or suggestions for
extending this rule, even though the IRS
and the Treasury Department previously
requested comments in a prior notice
of proposed rulemaking under section
7502. See Federal Register, 64 FR 2606
(January 15, 1999). Because the IRS
was clarifying what documentation it will
accept as proof of delivery, additional
comments were sought on this issue.
Accordingly, in the notice of proposed
rulemaking, the IRS and the Treasury
Department encouraged the public to make
comments regarding whether the prima
facie evidence of delivery rule should be
extended to a service provided by a PDS.
Eighteen written comments were received in response to the notice of proposed rulemaking. Three commenters
requested a public hearing. A notice of
public hearing on proposed rulemaking
was published in the Federal Register (69 FR 68282) on November 24,
2004. A public hearing was held on
January 11, 2005. Three commenters
appeared at the public hearing and
commented on the notice of proposed
rulemaking.
All comments were considered and are
available for public inspection upon request. After consideration of the written
comments and the comments provided at
the public hearing, the proposed regulations under section 7502 are adopted as revised by this Treasury Decision. The public comments, public hearing, and the revisions are discussed in this preamble.
Summary of Comments and
Explanation of Provisions
Four commenters expressed concern
that the proposed regulations limited the
proof to satisfy the timely mailing/timely
filing rule of section 7502(a) rather than
the prima facie evidence of delivery rule
of section 7502(c). These final regulations
do not limit the use of U.S. Mail, other
delivery options offered by the United
States Postal Service (USPS), or a PDS
for purposes of satisfying the timely mailing/timely filing rule of section 7502(a).
Instead, these final regulations clarify the
prima facie evidence of delivery rule of
section 7502(c).

October 3, 2011

Seven commenters suggested that the
proposed regulations provide that evidence of proper use of a service offered
by a PDS should establish prima facie
evidence of delivery of Federal tax documents to the IRS and the United States Tax
Court. Seven commenters observed that
PDSs offered services similar to certified
and registered mail, and that the services
offered by the PDSs were as reliable as
registered mail and certified mail. Two
commenters noted that PDSs generally
provide a greater level of detail with respect to tracking and delivery information
than certified and registered mail for purposes of establishing proof of delivery.
Three commenters expressed concern that
it is inconsistent to permit individuals to
rely upon PDSs to satisfy the timely mailing/timely filing rule of section 7502(a),
but not for section 7502(c). One commentator observed that section 7502(f)(3)
requires that the Treasury Secretary and
the IRS consider PDS alternatives as substitutes for certified and registered mail.
After considering comments received
on the proposed regulations, these final
regulations provide that the Treasury Department and IRS will issue guidance
that will establish the criteria to be used
to designate PDSs for purposes of the
prima facie evidence of delivery rule.
Cf. Notice 2004–83, 2004–2 C.B. 1030)
(listing PDSs that the Secretary has designated pursuant to section 7502(f)(2))
(see §601.601(d)(2)(ii)(b) of this chapter);
Rev. Proc. 97–19, 1997–1 C.B. 644 (providing the criteria to determine whether
a PDS qualifies as a designated private
delivery service under section 7502(f)
and the procedures under which a PDS
can apply to become a designated PDS)
(see §601.601(d)(2)(ii)(b) of this chapter).
Thus, these final regulations provide that,
other than direct proof of actual delivery,
proof of proper use of registered or certified mail (registered or certified mail
sender’s receipt), and proof of proper use
of a PDS duly designated under criteria established by the IRS, are the sole means to
establish prima facie evidence of delivery
of documents that have a filing deadline
prescribed by the internal revenue laws.
The existing regulations under section 7502 are being reorganized. Section
301.7502–1(e) will still be entitled “Delivery,” but will now focus on the requirement for actual delivery or the use of one

471

of the means discussed above to establish
a presumption of delivery. Former paragraph (e)(2) and the example in paragraph
(e)(3) are moved to paragraph (b)(2) to
consolidate the discussion of the effect of
section 7502 on certain claims for refund.
Seven commenters suggested that the
proposed regulations should permit additional services offered by the USPS to
establish prima facie evidence of delivery
of Federal tax documents to the IRS and
the United States Tax Court. Commenters
recommended that the following USPS
services should be permitted to establish
prima facie evidence of delivery: Priority
Mail, Certificate of Mailing, Express Mail
Receipt, Delivery Confirmation Receipt,
and Signature Confirmation.
Section 7502 does not authorize the
Treasury Department or the IRS to adopt
a rule that would permit USPS services in
addition to certified and registered mail
to establish prima facie evidence of delivery. Congress has been clear when it
intended to change section 7502 to allow
proof of delivery by other means. In 1958,
Congress amended section 7502 to provide the IRS with the authority to treat
certified mail the same as registered mail.
See Technical Amendments Act of 1958,
Public Law No. 85–866 (72 Stat. 1606
(1958)). Congress also amended section
7502 to authorize the IRS to publish rules
providing the extent to which a PDS is the
equivalent of certified mail. See Taxpayer
Bill of Rights 2, Public Law No. 104–168
(110 Stat. 1452 (1996)); Internal Revenue
Service Restructuring and Reform Act of
1998, Public Law No. 105–206 (112 Stat.
685 (1998)). Similar legislation would
be necessary to authorize the IRS to treat
additional USPS services as prima facie
evidence of delivery.
Two commenters expressed concern
that certified and registered mail services
are expensive and inconvenient in comparison to first class mail. These commenters
suggested that regular first class mail
should suffice to establish prima facie
evidence of delivery. As described above,
the prima facie evidence of delivery rule
provides an exception to the actual delivery rule. Absent actual delivery, however,
first class mail without additional services
provides nothing, such as certified or registered mail receipt, to establish proof of
delivery. Moreover, without legislative
action, the Treasury Department and the

2011–40 I.R.B.

IRS cannot adopt regulations extending
the prima facie evidence of delivery rule
to first class mail.
Special Analyses
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order
12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
does not apply to these regulations.
It is hereby certified that the collection
of information contained in this regulation will not have a significant economic
impact on a substantial number of small
entities. Accordingly, a regulatory flexibility analysis is not required. Although
the collection of information in this Treasury decision affects a substantial number
of small entities, the economic impact on
these small entities is not substantial. If
a small entity uses registered or certified
mail to file a document with the IRS, the
additional burden (filling out the appropriate United States Postal Service forms)
over and above using regular mail is not
substantial. Furthermore, the extra cost to
use registered or certified mail is not substantial as certified mail costs only $2.80
and registered mail can be used for as little as $10.60. Finally, the added burden
of retaining the certified or registered mail
sender’s receipt will be minimal as the receipt can be associated with the small entity’s copy of the document that it filed
with the IRS.
Pursuant to section 7805(f) of the Code,
the proposed rule that preceded this Treasury decision was submitted to the Chief
Counsel for Advocacy of the Small Business Administration for comment on its
impact on small businesses.
Drafting Information
The principal author of these regulations is Steven L. Karon of the Office of the
Associate Chief Counsel, Procedure and
Administration.
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2011–40 I.R.B.

Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 301 is
amended as follows:
PART 301—PROCEDURE AND
ADMINISTRATION
Paragraph 1. The authority citation for
part 301 is amended by removing the entry for §301.7502–1T to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.7502–1 is amended
by:
1. Revising paragraphs (b)(2) and (e).
2. Adding paragraphs (c)(3) and (g)(4).
The additions and revisions read as follows:
§301.7502–1 Timely mailing of documents
and payments treated as timely filing and
paying.
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(b) * * *
(2) Claims for refund—(i) In general.
In the case of certain taxes, a return may
constitute a claim for credit or refund. Section 7502 is applicable to the determination of whether a claim for credit or refund is timely filed for purposes of section
6511(a) if the conditions of section 7502
are met, irrespective of whether the claim
is also a return. For rules regarding claims
for refund on late filed tax returns, see
paragraph (f) of this section. Section 7502
is also applicable when a claim for credit or
refund is delivered after the last day of the
period specified in section 6511(b)(2)(A)
or in any other corresponding provision of
law relating to the limit on the amount of
credit or refund that is allowable.
(ii) Example. The rules of paragraph
(b)(2)(i) of this section are illustrated by
the following example:
Example. (A) Taxpayer A, an individual, mailed
his 2004 Form 1040, “U.S. Individual Income Tax Return,” on May 10, 2005, but no tax was paid at that
time because the tax liability disclosed by the return
had been completely satisfied by the income tax that
had been withheld on A’s wages. On April 15, 2008,
A mails, in accordance with the requirements of this
section, a Form 1040X, “Amended U.S. Individual
Income Tax Return,” claiming a refund of a portion of
the tax that had been paid through withholding during
2004. The date of the postmark on the envelope containing the claim for refund is April 15, 2008. The
claim is received by the IRS on April 18, 2008.

472

(B) Under section 6511(a), A’s claim for refund is
timely if filed within three years from May 10, 2005,
the date on which A’s 2004 return was filed. As a
result of the limitations of section 6511(b)(2)(A),
if A’s claim is not filed within three years after
April 15, 2005, the date on which A is deemed
under section 6513 to have paid his 2004 tax, A is
not entitled to any refund. Because A’s claim for
refund is postmarked and mailed in accordance with
the requirements of this section and is delivered
after the last day of the period specified in section
6511(b)(2)(A), section 7502 is applicable and the
claim is deemed to have been filed on April 15, 2008.

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(c) * * *
(3) Private delivery services. Under
section 7502(f)(1), a service of a private
delivery service (PDS) may be treated as
an equivalent to United States mail for purposes of the postmark rule if the Commissioner determines that the service satisfies
the conditions of section 7502(f)(2). Thus,
the Commissioner may, in guidance published in the Internal Revenue Bulletin (see
§601.601(d)(2)(ii)(b) of this chapter), prescribe procedures and additional rules to
designate a service of a PDS for purposes
of the postmark rule of section 7502(a).
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(e) Delivery—(1) General rule. Except
as provided in section 7502(f) and paragraphs (c)(3) and (d) of this section, section 7502 is not applicable unless the document or payment is delivered by U.S. mail
to the agency, officer, or office with which
the document is required to be filed or to
which payment is required to be made.
(2) Exceptions to actual delivery—(i)
Registered and certified mail. In the case
of a document (but not a payment) sent by
registered or certified mail, proof that the
document was properly registered or that a
postmarked certified mail sender’s receipt
was properly issued and that the envelope
was properly addressed to the agency, officer, or office constitutes prima facie evidence that the document was delivered to
the agency, officer, or office. Other than
direct proof of actual delivery, proof of
proper use of registered or certified mail,
and proof of proper use of a duly designated PDS as provided for by paragraph
(e)(2)(ii) of this section, are 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

October 3, 2011

evidence of delivery or raise a presumption
that the document was delivered.
(ii) Equivalents of registered and certified mail. Under section 7502(f)(3),
the Secretary may extend the prima facie evidence of delivery rule of section
7502(c)(1)(A) to a service of a designated
PDS, which is substantially equivalent to
United States registered or certified mail.
Thus, the Commissioner may, in guidance
published in the Internal Revenue Bulletin
(see §601.601(d)(2)(ii)(b) of this chapter), prescribe procedures and additional

October 3, 2011

rules to designate a service of a PDS for
purposes of demonstrating prima facie evidence of delivery of a document pursuant
to section 7502(c).
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(g) * * *
(4) Registered or certified mail as the
means to prove delivery of a document.
Section 301.7502–1(e)(2) will apply to
all documents mailed after September 21,
2004.

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Steven T. Miller,
Deputy Commissioner for
Services and Enforcement.
Approved August 10, 2011.
Emily S. McMahon,
Acting Assistant Secretary
(Tax Policy).
(Filed by the Office of the Federal Register on August 22,
2011, 8:45 a.m., and published in the issue of the Federal
Register for August 23, 2011, 76 F.R. 52561)

2011–40 I.R.B.