Not All Private Delivery Services Are Created Equal: Timely Mailed, Timely Filed Rule Is Strictly Construed and Applied

Dec. 12, 2013

The Internal Revenue Code (IRC) contains a “timely mailed, timely filed” rule that generally treats the postmark date as the filing date for tax returns (and other tax documents) received after the due date but mailed on or before the due date if mailed via United States Postal Service (USPS) or a “designated private delivery service,” as defined by the IRS. While the rule might seem straightforward, a recent Tax Court decision serves as a reminder that strict compliance with the requirements is necessary in order to qualify for protection under the timely mailed, timely filed rule.

In an opinion issued on Nov. 25, 2013, in Eichelburg v. Commissioner of Internal Revenue, the Tax Court held that a taxpayer who used a private delivery service that was not listed in IRS Notice 2004-83 as a designated private delivery service failed to qualify for protection under the timely mailed, timely filed rule. The Tax Court acknowledged that the result was harsh but emphasized that the rule must be strictly construed and applied.

To satisfy the mailing requirements of the IRC, a tax document or payment must be:

  • Postmarked (or recorded or marked by a designated private delivery service) on or before the date prescribed for filing or payment (including extensions)
  • Either deposited with the USPS or deposited with a designated private delivery service
  • In an envelope or other appropriate wrapper that is properly addressed with postage prepaid

Designated private delivery services are those identified by the IRS after they satisfy certain conditions. IRS Notice 2004-83 is the most recent guidance that provides a list of designated private delivery services. In particular, the IRS has designated only certain delivery options provided by DHL Express, Federal Express, and United Parcel Service.

In Eichelburg, the taxpayer used Federal Express’s Express Saver option, which is not specifically listed as a designated private delivery service in IRS Notice 2004-83. As a result, the taxpayer in Eichelburg did not qualify for protection under the timely mailed, timely filed rule.

The Eichelburg case is a reminder that the timely mailed, timely filed rule is strictly construed and applied. Accordingly, taxpayers seeking protection under the rule need to understand its intricacies.

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David Holets
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Kristy Rempalski
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