Use of private delivery services to provide evidence of delivery to the IRS.

• Author: Nevius, Alistair M.

The IRS issued final regulations providing guidance on how taxpayers can prove the timely delivery of physical documents to the IRS and the Tax Court, absent direct proof of delivery (T.D. 9543). The regulations provide that proper use of registered or certified U.S. mail or a private delivery service, under criteria to be established by the IRS, will provide prima facie evidence of delivery.

Sec. 7502(c) establishes that if "any return, claim, statement, or other document" is sent to the IRS by registered mail, the registration will serve as prima facie evidence of delivery. The IRS has previously extended this treatment to certified mail under the authority of Sec. 7502(c)(2). The federal courts have split over the question of whether Sec. 7502(c) provides the exclusive means to establish prima facie evidence of delivery so that taxpayers can raise a presumption of delivery only when they have used registered or certified mail.

Given the split in the courts, the final regulations are designed to clarify the prima facie evidence of delivery rule. Under the regulations, taxpayers will be able to establish prima facie evidence of delivery if they use a private delivery service under criteria that the IRS will issue in future guidance. However, direct proof of...