In Uncategorized on 09/16/2011 at 16:35


No decisions from Tax Court for the last three days, barring one 7463 concerning the tax home of a tugboat captain, and I’d covered that issue in my post “Home Is Where the Heart Is”, 7/21/11.

But take heart; there is news. On August 19, 2011, IRS issued final regulations, effective August 23, 2011 on prima facie proof of mailing of time-critical documents to IRS. See TD 9543, effective for documents mailed after 9/21/04 (that’s no typo, the IRS means 2004). Certified or registered mail is still the only kind of mail that generates the prima facie proof. Even Priority Mail with Proof of Delivery isn’t good enough as prima facie proof, says IRS, because Congress never amended Section 7502(c). You can certainly mail that way, but, if IRS contests receipt, you’ll have to prove that you sent it and that IRS got it, and the printout from USPS isn’t prima facie proof.

TD 9543 says: “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.”

Good luck with getting Congress to enact such legislation.

Private delivery services (PDS) are still includable as providing a means of prima facie proof of mailing, if Doug Shulman blesses the service in question.

For the other side of the coin, see my post “The IRS Loses a Double-Header”, 7/12/11, where the IRS couldn’t prove mailing of a determination in a 7623 whistleblower case.

And now, as Monty Python used to say, for something completely different.

Maybe a rant does help sometimes. I see the 2012 Nationwide Tax Forum is coming back to New York City in 2012, on August 28 through August 30. See you there, guys.

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