Thursday, August 11, 2005
Robert Wearing has published The Mailbox Rule and Private Postage Meters, also available on the Tax Analysts web site as Doc 2005-16960, 2005 TNT 153-14. Here is the Introduction:
The mailbox rule of § 7502, that timely mailing is treated as timely filing, is the subject of many Tax Court opinions, and nearly as many Tax Notes practice articles. Often, Tax Court petitioners rely on the rule to defeat a jurisdictional challenge by the IRS. They attempt to overcome a late-arriving petition by demonstrating timely mailing. The many mailbox rule cases are not merely a reflection of the fact that many practitioners wait until the last possible moment to file a petition. Instead, the mailbox rule is often the subject of litigation because it is not as simple as the mantra 'timely mailing is timely filing' would suggest. The Tax Court has addressed the application of the mailbox rule to petitions sent using private delivery services, damaged petitions, and lost petitions. Circuit courts have even reached different conclusions on whether there is both a common law and statutory mailbox rule applicable to tax documents.
No aspect of the rule has been a more common subject of Tax Court opinions, however, than its application to mail bearing postmarks from private postage meters. Petitioners have lost almost every one of those cases, typically as a result of their inability to satisfy the requirements of a regulation1 that requires proof of facts that are, to some extent, self-evident yet quite difficult to prove. Together, the losses have provided little in the way of guidance on what it takes to satisfy the regulation. A recent case in which the petitioners prevailed, however, sheds some light on the subject. In Grossman v. Commissioner, T.C. Memo. 2005-164, the Tax Court held that a couple's properly addressed petition satisfied the timely mailing, timely filing requirements of § 7502 as it was privately postmarked by the deadline for filing but arrived late because of a USPS delay. Grossman comes seven years after the previous case in which a petitioner prevailed under the private postmark regulation. Viewed together the cases suggest that petitioners willing to do a little digging may not have too much to worry about if a privately postmarked petition arrives late.