You know the mantra—if the return is timely mailed, it’s timely filed and the tax is timely paid. So says Section 7502 of the Internal Revenue code. In general, proving the mailing is “timely” is a matter of providing a receipt from the mail service.
But what mail service? Besides the US Post Office, section 7502 says the Secretary of the Treasury can designate certain “private delivery services” for purposes of the rule. The Secretary did, in Notice 2004-83, updated December 27, 2004. The delivery services include DHL Express, Federal Express, and United Parcel Service.
Unfortunately for the taxpayer in T.C. Memo. 2013-269 (Eichelburg), there’s a bit more detail in Notice 2004-83.
The taxpayer received a notice from the IRS via certified mail on June 11, 2012. He had 90 days to respond, until September 10, 2012, which was not a Saturday, Sunday, or Federal holiday in the District of Columbia (the location of the tax court).
He mailed his petition on September 10, 2012, using a Federal Express delivery service denominated “FedEx Express Saver.” The petition was received and filed by the court on September 12, 2012.
The IRS said the petition was late, because the timely mailed/timely filed rule did not apply to that particular delivery service.
The tax court agreed, pointing to the specific listing in Notice 2004-83, which does not include “FedEx Express Saver.”
1. DHL Express (DHL): DHL Same Day Service; DHL Next Day 10:30 am; DHL Next Day 12:00 pm; DHL Next Day 3:00 pm; and DHL 2nd Day Service;
2. Federal Express (FedEx): FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International First; and
3. United Parcel Service (UPS): UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.