The Internal Revenue Service provided guidance Friday on the only ways to establish prima facie evidence of delivery of documents that have a filing deadline prescribed by the tax laws when there is not direct proof of the actual delivery.

TD 9543 amends a previous Treasury regulation on the subject. The regulations provide that the proper use of registered or certified mail, or a private delivery service designated under criteria established by the IRS, will constitute prima facie evidence of delivery. The regulations affect taxpayers who mail federal tax documents to the IRS or the U.S. Tax Court. They take effect on August 23.

The IRS noted that there is a conflict among the federal circuit courts of appeal over whether the provisions in Section 7502 of the Tax Code provide the exclusive means to establish prima facie evidence of delivery of a document to the IRS or the U.S. Tax Court. The courts have reached differing conclusions as to whether a taxpayer may raise a presumption of delivery of federal tax documents to the IRS and the Tax Court in situations in which the taxpayer uses registered or certified mail.

After the IRS published a notice of proposed rulemaking in 2004, it received 18 comments. The proposed regulations clarified that, other than direct proof of actual delivery, the exclusive means to establish prima facie evidence of delivery of federal tax documents to the IRS and the Tax Court is to prove the use of registered or certified mail. Under Section 7502(f)(3), the IRS may extend to a service provided by a private delivery service a rule similar to the prima facie evidence of delivery rule applicable to certified and registered mail.

After considering the comments it received, the IRS said the final regulations provide that the Treasury Department and the IRS will issue guidance that will establish the criteria to be used to designate private delivery services for purposes of the prima facie evidence of delivery rule. The final regulations provide that, other than direct proof of actual delivery, proof of proper use of registered or certified mail (such as a registered or certified mail sender’s receipt), and proof of proper use of a private delivery service designated under criteria established by the IRS, are the sole means to establish prima facie evidence of delivery of documents that have a filing deadline prescribed by the tax laws.

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