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The Law Office of Irina N. Goldberg is a Boutique tax law practice focusing on IRS and California civil tax and criminal tax controversy disputes. Our mission is to provide taxpayers with affordable and personalized assistance in dealing with aggressive federal and state taxing agencies. Call (760) 815-6220 or email to schedule your free consultation

Thursday, June 6, 2013

Last Minute Filing: How To Guarantee Timely Filing With The IRS

There are many reasons for waiting until the last minute to meet an IRS deadline.  You may be having trouble getting your documents together or you may be searching for an attorney to represent you in Tax Court. No matter if you are running late out of necessity or out of procrastination, the consequences for missing an IRS deadline range from minor to drastic depending on the type of filing. 

For example, if you miss the deadline to file a tax return, a late filing means a late filing penalty. On the other hand, the consequences for missing the deadline to file a petition in Tax Court in order to contest an IRS notice of deficiency are severe. Taxpayers only have 90 days to file a Tax Court petition and if the deadline is missed, the Tax Court will not have jurisdiction to hear your case. Your only remaining option is to pay the tax owed and file suit in either the United State District Court or the Court of Claims. 

In order to determine whether a filing is timely, the IRS follows the "timely mailing treated as timely filing/paying rule" (26 USC Section 7502). This rule states that a tax return (or other document) required to be filed (or payment to be made) with the IRS (or Tax Court) is timely filed if:
  1. The date of the U.S. Postal Service postmark is no later than the due date (or the date of its extension), 
  2. The return is properly addressed and 
  3. Has proper postage. 
If, on the other hand, the filing has a postmark after the due date, it is considered filed on the date that it is received by the IRS. 

According to 26 USC Section 7502 (c), if a return or other document is sent by United States registered mail, registration shall be prima facie evidence (accepted as correct) that the return or other document was delivered and the date of registration shall be deemed the postmark date. 

Furthermore, the IRS has only a handful of approved private-delivery services which will meet the "timely mailing as timely filing/paying" rule (see Internal Revenue Bulletin: 2004-83). 
  • DHL Express (DHL): DHL Same Day Service.
  • Federal Express (FedEx)
    • FedEx Priority Overnight
    • FedEx Standard Overnight
    • FedEx 2Day
    • FedEx International Priority
    • FedEx International First
  • United Parcel Service (UPS)
    • UPS Next Day Air
    • UPS Next Day Air Saver
    • UPS 2nd Day Air
    • UPS 2nd Day Air A.M.
    • UPS Worldwide Express Plus 
    • UPS Worldwide Express
If your private-delivery service provider is not on this list, neither the IRS nor the Tax Court will make an exception for you. This point can be illustrated by a recent Tax Court case, Scaggs v.s Commissioner of Internal Revenue. In this case the taxpayers used FedEx Airbill "Express Saver Third business day" to mail their Tax Court petition. The court held that since the private-delivery service used was not on the approved list, the petition was not filed within the requisite period prescribed by section 6213(a) and their case was dismissed for lack of jurisdiction. 

It is important to note that if you file your tax return online (e-file) it is not considered filed until you receive an IRS acknowledgement of acceptance. Since this could take up to two days, don't rely on electronic filing if you are filing your tax return last minute.  If your return was e filed on time but was rejected after the deadline, your return will be considered timely if it is corrected and re-e filed again within 5 business days or printed and mailed to the IRS within 10 days. 

Update 6/7/13: the "timely mailing as timely filing/paying" rule does not apply to FBARs which must be received by June 30th (see instructions to form TD F 90-22.1). Likewise, when dealing directly with an IRS officer or agent, clarify beforehand whether they expect the document mailed by or received by the deadline they set (thank you to tax attorney Michael A. Lampert for bringing these exception to my attention). 

This content is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.


  1. Excellent information, reminder or new; very succint & easy to understand the nuances. Joe

  2. Wow- This is news tome. I have always been under the impression that if I do an E file before midnight of the deadline date, it is considered timely filed. Ive done this for many years and never had a problem that I know of. Of course that doesn't make it right but this certainly is a bombshell. I will now have to advise client that I will have to file at least 3 days before the due date. I don't do any manual filings if I can help it.

    Matt J Hietala EA LLC

    PS what is meant by "profile" How should I answer that?