Is the Timely-Mailing, Timely-Filing Statute Exclusive (1/19/13)

In Stocker v. United States, 705 F.3d 225 (6th Cir. 2013), here, the Sixth Circuit applied its precedent in holding that the statutory time-mailing, timely-filing rule in Section 7502, here, is the exclusive exception to actual timely filing requirement for returns and similar documents.  Here is the key holding with the circuit split noted in the footnote and even quoting the Sixth Circuit's expressed prior reservations about its precedent.

Nonetheless, the Stockers insist that the two methods set forth in § 7502 for establishing timely filing are not the sole avenues of proof for overcoming the physical delivery rule, and that taxpayers remain free to prove timely filing through other means.  This contention, however, runs directly counter to our decision in Miller, in which we expressly held that "the only exceptions to the physical delivery rule available to taxpayers are the two set out in section 7502." 784 F.2d at 731. In that case, the plaintiff sought to rely on an affidavit from his attorney stating that he had timely sent a claim for a refund by ordinary mail, but the IRS had no record of ever receiving this claim. Because the plaintiff could not produce a postmarked envelope that could confirm the timely filing of his claim, and because this claim had been sent by ordinary rather than registered or certified mail, we found that "the exceptions in section 7502 do not apply to the filing of [the plaintiff's] refund claim." Id. at 730. We then rejected the plaintiff's contention that the two exceptions set forth in § 7502 merely created "safe harbor[s]" to which a taxpayer could appeal "without question, while not barring him from relying on other exceptions created by the courts." Id. Instead, we elected to follow the decisions of other courts holding that the "exceptions embodied in [§ 7502] [a]re exclusive and complete." Id. at 731 (following Deutsch v. Comm'r, 599 F.2d 44, 46 (2d Cir. 1979), and other cases cited therein). n5
   n5 As noted by the Stockers, there is a circuit split on this issue, with other circuits having concluded that § 7502 does not altogether displace the common-law rules, such as the mailbox rule, that the courts have invoked to determine whether a tax return or other document has been timely filed with the IRS. See, e.g., Philadelphia Marine Trade Ass'n — Int'l Longshoremen's Ass'n Pension Fund v. Comm'r, 523 F.3d 140, 150 (3d Cir. 2008) (reasoning that Congress's intent in enacting § 7502 "was to supplement, not supplant, [the] means by which taxpayers can timely file documents with the IRS"); Anderson v. United States, 966 F.2d 487, 491 (9th Cir. 1992) ("[W]e decline to read section 7502 as carving out exclusive exceptions to the old common law physical delivery rule."). We, of course, are bound to adhere to this Circuit's resolution of this issue in the published Miller decision. See Carroll v. Comm'r, 71 F.3d 1228, 1232 (6th Cir. 1995) (expressing reservations about the ruling in Miller but confirming that it "remain[s] good law in the Sixth Circuit").

I offer the following discussion from the current draft of my Tax Procedure Book (footnotes omitted):

2. Common Law Mailbox Rules.

a. General.

The Supreme Court has summarized the common-law mailbox rule as follows:

The rule is well settled that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.

This rule may apply in tax cases, although the decisions are varied as to how and if it applies (i.e. some courts think § 7502 pre-empts the field).

Let’s first illustrate the differences between the common law rule and § 7502 by some examples in two scenarios involving only slight variations in the fact pattern.  In both cases, the IRS denies having received the return or claim for refund.

Example 1: The taxpayer allegedly mailed the return or claim for refund with postage paid (but not in the guaranteed formats of § 7502) on the last day in which the return or claim for refund could have been filed, let’s say April 15 of year 02.  If the IRS had received it at all, it would have been after the due date of April 15 of year 02.  The common law mailbox rule supply timeliness.  This, of course, is the phenomenon for which § 7502 was enacted to take the vagaries out of times for delivery and provide a certain method to make timely mailing a timely filing.

Example 2: The taxpayer allegedly mailed the return or claim for refund in the same manner, except the taxpayer allegedly mailed it on February 1 of year 02.  The due date is April 15 of year 02, so the mailing should easily be delivered to the IRS within the normal time and, if it had been so delivered, § 7502 would have no operation (remember that § 7502 only applied to documents delivered to the IRS after the due date).  Even if § 7502 might arguably pre-empt the field in the Example 1 situation, one court has suggested that it cannot in this Example 2 and the mailbox rule can apply.

Courts which permit some continued application for the mailbox rule in either type of case where the IRS has no record of receipt usually will want more evidence than the taxpayer’s own self-serving testimony.

Consider another example to illustrate the limitations of the mailbox rule.  Assume that the U.S. Postal Service has a two day delivery from the taxpayer’s home town where she deposits the return in the mail and the IRS Service Center to which the return is addressed.  If the taxpayer, an individual, deposits a Year 1 return in the mail on April 15 of Year 2, the original due date, § 7502 treats the return as timely filed on April 15 of Year 2, but the common-law mailbox rule would treat the return as filed on April 17, the date the IRS is deemed under that rule to have received it.  Consider a similar example, with the taxpayer having timely filed his return by mail on April 15 of Year 2 and then mails the IRS a claim for refund on April 15 of Year 5.  Under § 7502, the claim for refund will be timely filed but under the common-law mailbox rule it would not because the IRS would not be deemed to have received it until April 17 of Year 5.

Finally, there is a development that may moot the possible application of the mailbox rule.  The IRS has issued a proposed regulation that, if valid, would pre-empt the application of the mailbox rule and make registered or certified mail the exclusive way to be certain that the timely-mailing, timely-filing rule applies.  It remains to be seen whether the proposed regulation will be promulgated or, if promulgated, would be valid.

b. The Prison Mailbox Rule.

The “prison mailbox” rule is a special variant of the mailbox rule that may apply in some cases to persons who are incarcerated in the United States.  A prisoner rarely has unfettered access to a mailbox and, hence, the rule developed that delivery to prison officials will be treated as a mailing so as to invoke the mailbox rule.  A taxpayer seeking to rely on this rule (even it ever was or still is viable) bears the burden of proving timely delivery for filing.