Mailbox Rule Does Not Apply To All Fed Ex Deliveries

Not rain, nor sleet, nor snow will stop the U.S. Postal Service from delivering your Tax Court Petition, but try to save a few bucks by using Federal Express' "Express Saver Third Business Day" and your petition is not considered "mailed" according to the U.S. Tax Court.

In a recent case, a taxpayer timely mailed his petition to the U.S. Tax Court, but when it was not received by the court's filing deadline the taxpayer's argument that the "timely mailing" rule found in IRC Section 7502 should apply was rejected.

Only FedEx' Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International First will be considered mailed for a taxpayer to take advantage of this timing rule.

In this case, the IRS mailed a notice of deficiency to the taxpayers' last known address on April 8, 2011. The 90th day, after the notice was mailed, was Thursday, July 7, 2011. The taxpayers delivered their petition to Federal Express on July 7, 2012, and selected the "Express Saver Third business day" service from Federal Express. The tax court petition was received by the Court and filed on July 12, 2011. The envelope in which the petition was received bore a FedEx U.S. Airbill with handwritten entries dated July 7, 2011 (FedEx Airbill). The delivery service selected on the FedEx Airbill was "Express Saver Third business day."

Section 6212(a) expressly authorizes the Commissioner, after determining a deficiency, to send a notice to the taxpayer by certified or registered mail. The taxpayer, in turn, has 90 days from the date that the notice is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day) to file a petition in this Court for a redetermination of the deficiency. The notice was mailed on April 8, 2011, and the 90th day thereafter was Thursday, July 7, 2011, which was not a legal holiday in the District of Columbia. See sec. 7503; Rule 25(b). Therefore, July 7, 2011, was the last date for petitioners to timely file a petition in the Tax Court. However, the petition was not received and filed by the Court until Tuesday, July 12, 2011.

Under Section 7502(a), a timely mailed petition may be treated as though it were timely filed. Thus, if a petition is received by the Court after the expiration of the 90-day period, it is nevertheless deemed to be timely filed if the date of the U.S. Postal Service postmark stamped on the envelope in which the petition was mailed is within the time prescribed for filing.

In this case, however, the taxpayers did not use the U.S. Postal Service to send their petition, rather, they used FedEx. Section 7502(f)(1), nevertheless, states that sending a petition by designated private delivery service, such as FedEx, may also be treated as timely mailing.

In Notice 2004-83, 2004-2 C.B. 1030, the Commissioner updated the list of companies and classes of delivery service that constitute designated private delivery services for purposes of § 7502. Thus, effective January 1, 2005, and insofar as FedEx is concerned, the list of designated private delivery services was as follows: FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International First. The 2004 notice expressly states that FedEx is not designated with respect to any type of delivery service not expressly identified. Thus, "Express Saver Third business day" service is not a designated private delivery service. See Raczkowski v. Commissioner, T.C. Memo. 2007-72 (holding in part that the timely mailing/timely filing rule of § 7502 does not apply to "UPS Ground" service because such service was not a designated private delivery service under the 2004 notice). [Emphasis added]

Ultimately the Court dismissed the case for lack of jurisdiction.

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