Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 52561 

PART 602—OMB CONTROL NUMBERS 

UNDER THE PAPERWORK 

REDUCTION ACT 

■ Par. 4. The authority citation for part 

602 continues to read as follows: 

Authority: 26 U.S.C. 7805. 

■ Par. 5. In § 602.101, paragraph (b) is 

amended by adding the following entry 

in numerical order to the table to read 

as follows: 

§ 602.101 OMB control numbers. 

* * * * * 

(b) * * * 

CFR part or section where 

identified and described 

Current OMB 

Control No. 

* * * * * 

1.179C–1 ................................ 1545–2103 

* * * * * 

Approved: August 9, 2011. 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Emily S. McMahon, 

(Acting) Assistant Secretary of the Treasury 

(Tax Policy). 

[FR Doc. 2011–21408 Filed 8–22–11; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 301 

[TD 9543] 

RIN 1545–BA99 

Timely Mailing Treated as Timely Filing 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Final regulations. 

SUMMARY: This document contains 

regulations amending a Treasury 

Regulation to provide guidance as to the 

only ways to establish prima facie 

evidence of delivery of documents that 

have a filing deadline prescribed by the 

internal revenue laws, absent direct 

proof of actual delivery. The regulations 

provide that the proper use of registered 

or certified mail, or a service of a private 

delivery service (PDS) designated under 

criteria established by the IRS, will 

constitute prima facie evidence of 

delivery. The regulations are necessary 

to provide greater certainty on this issue 

and to provide specific guidance. The 

regulations affect taxpayers who mail 

Federal tax documents to the Internal 

Revenue Service or the United States 

Tax Court. 

DATES: Effective Date: These regulations 

are effective on August 23, 2011. 

Applicability Date: These regulations 

apply to any payment or document 

mailed and delivered in accordance 

with the requirements of this section in 

an envelope bearing a postmark dated 

after September 21, 2004. 

FOR FURTHER INFORMATION CONTACT: 

Steven Karon, (202) 622- 4570 (not a 

toll-free number). 

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collection of information 

contained in these final regulations has 

been reviewed and approved by the 

Office of Management and Budget in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)) under control number 1545– 

1899. The collection of information in 

these final regulations is in § 301.7502– 

1. This information is required in order 

for taxpayers to be able to establish the 

postmark date and prima facie evidence 

of delivery when using certified or 

registered mail. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a valid control 

number. 

Books or records relating to a 

collection of information must be 

retained as long as their contents might 

become material in the administration 

of any internal revenue law. Generally, 

tax returns and return information are 

confidential, as required by 26 U.S.C. 

6103. 

Background 

This document contains regulations 

amending 26 CFR part 301 under 

section 7502 of the Internal Revenue 

Code (Code). Section 7502(a) first 

appeared as part of the recodification of 

the Code in 1954. Section 7502(a) is 

commonly known as the timely mailing/ 

timely filing rule. Section 301.7502–1 of 

the Procedure and Administration 

Regulations provides rules for taxpayers 

to follow to qualify for favorable 

treatment under section 7502. There is 

a conflict among the Federal circuit 

courts of appeal as to whether the 

provisions in section 7502 provide the 

exclusive means to establish prima facie 

evidence of delivery of a document to 

the IRS or the United States Tax Court. 

Specifically, courts have reached 

differing conclusions regarding whether 

a taxpayer may raise a presumption of 

delivery of Federal tax documents to the 

IRS and the United States Tax Court 

only in situations in which the taxpayer 

uses registered or certified mail. 

A notice of proposed rulemaking 

(REG–138176–02) was published in the 

Federal Register (69 FR 56377) on 

September 21, 2004. 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 United 

States 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 PDS a rule 

similar to the prima facie evidence of 

delivery rule applicable to certified and 

registered mail. Prior to the publication 

of the notice of proposed rulemaking, 

the IRS had not received any comments 

or suggestions for extending this rule, 

even though the IRS and the Treasury 

Department previously requested 

comments in a prior notice of proposed 

rulemaking under section 7502. See 

Federal Register, 64 FR 2606 (January 

15, 1999). Because the IRS was 

clarifying what documentation it will 

accept as proof of delivery, additional 

comments were sought on this issue. 

Accordingly, in the notice of proposed 

rulemaking, the IRS and the Treasury 

Department encouraged the public to 

make comments regarding whether the 

prima facie evidence of delivery rule 

should be extended to a service 

provided by a PDS. 

Eighteen written comments were 

received in response to the notice of 

proposed rulemaking. Three 

commenters requested a public hearing. 

A notice of public hearing on proposed 

rulemaking was published in the 

Federal Register (69 FR 68282) on 

November 24, 2004. A public hearing 

was held on January 11, 2005. Three 

commenters appeared at the public 

hearing and commented on the notice of 

proposed rulemaking. 

All comments were considered and 

are available for public inspection upon 

request. After consideration of the 

written comments and the comments 

provided at the public hearing, the 

proposed regulations under section 

7502 are adopted as revised by this 

Treasury Decision. The public 

comments, public hearing, and the 

revisions are discussed in this preamble. 

Summary of Comments and 

Explanation of Provisions 

Four commenters expressed concern 

that the proposed regulations limited 

the proof to satisfy the timely mailing/ 

timely filing rule of section 7502(a) 

rather than the prima facie evidence of 

delivery rule of section 7502(c). These 

final regulations do not limit the use of 


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52562 Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 

U.S. Mail, other delivery options offered 

by the United States Postal Service 

(USPS), or a PDS for purposes of 

satisfying the timely mailing/timely 

filing rule of section 7502(a). Instead, 

these final regulations clarify the prima 

facie evidence of delivery rule of section 

7502(c). 

Seven commenters suggested that the 

proposed regulations provide that 

evidence of proper use of a service 

offered by a PDS should establish prima 

facie evidence of delivery of Federal tax 

documents to the IRS and the United 

States Tax Court. Seven commenters 

observed that PDSs offered services 

similar to certified and registered mail, 

and that the services offered by the 

PDSs were as reliable as registered mail 

and certified mail. Two commenters 

noted that PDSs generally provide a 

greater level of detail with respect to 

tracking and delivery information than 

certified and registered mail for 

purposes of establishing proof of 

delivery. Three commenters expressed 

concern that it is inconsistent to permit 

individuals to rely upon PDSs to satisfy 

the timely mailing/timely filing rule of 

section 7502(a), but not for section 

7502(c). One commentator observed that 

section 7502(f)(3) requires that the 

Treasury Secretary and the IRS consider 

PDS alternatives as substitutes for 

certified and registered mail. 

After considering comments received 

on the proposed regulations, these final 

regulations provide that the Treasury 

Department and IRS will issue guidance 

that will establish the criteria to be used 

to designate PDSs for purposes of the 

prima facie evidence of delivery rule. 

Cf. Notice 2004–83 (2004–2 CB 1030) 

(listing PDSs that the Secretary has 

designated pursuant to section 

7502(f)(2)) (see § 601.601(d)(2)(ii)(b) of 

this chapter); Rev. Proc. 97–19 (1997–1 

CB 644) (providing the criteria to 

determine whether a PDS qualifies as a 

designated private delivery service 

under section 7502(f) and the 

procedures under which a PDS can 

apply to become a designated PDS) (see 

§ 601.601(d)(2)(ii)(b) of this chapter). 

Thus, these final regulations provide 

that, other than direct proof of actual 

delivery, proof of proper use of 

registered or certified mail (registered or 

certified mail sender’s receipt), and 

proof of proper use of a PDS duly 

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 internal revenue laws. 

The existing regulations under section 

7502 are being reorganized. Section 

301.7502–1(e) will still be entitled 

‘‘Delivery,’’ but will now focus on the 

requirement for actual delivery or the 

use of one of the means discussed above 

to establish a presumption of delivery. 

Former paragraph (e)(2) and the 

example in paragraph (e)(3) are moved 

to paragraph (b)(2) to consolidate the 

discussion of the effect of section 7502 

on certain claims for refund. 

Seven commenters suggested that the 

proposed regulations should permit 

additional services offered by the USPS 

to establish prima facie evidence of 

delivery of Federal tax documents to the 

IRS and the United States Tax Court. 

Commenters recommended that the 

following USPS services should be 

permitted to establish prima facie 

evidence of delivery: Priority Mail, 

Certificate of Mailing, Express Mail 

Receipt, Delivery Confirmation Receipt, 

and Signature Confirmation. 

Section 7502 does not authorize the 

Treasury Department or the IRS to adopt 

a rule that would permit USPS services 

in addition to certified and registered 

mail to establish prima facie evidence of 

delivery. Congress has been clear when 

it intended to change section 7502 to 

allow proof of delivery by other means. 

In 1958, Congress amended section 7502 

to provide the IRS with the authority to 

treat certified mail the same as 

registered mail. See Technical 

Amendments Act of 1958, Public Law 

No. 85–866 (72 Stat. 1606 (1958)). 

Congress also amended section 7502 to 

authorize the IRS to publish rules 

providing the extent to which a PDS is 

the equivalent of certified mail. See 

Taxpayer Bill of Rights 2, Public Law 

104–168 (110 Stat. 1452 (1996)); Internal 

Revenue Service Restructuring and 

Reform Act of 1998, Public Law 105– 

206 (112 Stat. 685 (1998)). Similar 

legislation would be necessary to 

authorize the IRS to treat additional 

USPS services as prima facie evidence 

of delivery. 

Two commenters expressed concern 

that certified and registered mail 

services are expensive and inconvenient 

in comparison to first class mail. These 

commenters suggested that regular first 

class mail should suffice to establish 

prima facie evidence of delivery. As 

described above, the prima facie 

evidence of delivery rule provides an 

exception to the actual delivery rule. 

Absent actual delivery, however, first 

class mail without additional services 

provides nothing, such as certified or 

registered mail receipt, to establish 

proof of delivery. Moreover, without 

legislative action, the Treasury 

Department and the IRS cannot adopt 

regulations extending the prima facie 

evidence of delivery rule to first class 

mail. 

Special Analyses 

It has been determined that this 

Treasury decision is not a significant 

regulatory action as defined in 

Executive Order 12866, as 

supplemented by Executive Order 

13563. Therefore, a regulatory 

assessment is not required. It has also 

been determined that section 553(b) of 

the Administrative Procedure Act (5 

U.S.C. chapter 5) does not apply to these 

regulations. 

It is hereby certified that the 

collection of information contained in 

this regulation will not have a 

significant economic impact on a 

substantial number of small entities. 

Accordingly, a regulatory flexibility 

analysis is not required. Although the 

collection of information in this 

Treasury decision affects a substantial 

number of small entities, the economic 

impact on these small entities is not 

substantial. If a small entity uses 

registered or certified mail to file a 

document with the IRS, the additional 

burden (filling out the appropriate 

United States Postal Service forms) over 

and above using regular mail is not 

substantial. Furthermore, the extra cost 

to use registered or certified mail is not 

substantial as certified mail costs only 

$2.80 and registered mail can be used 

for as little as $10.60. Finally, the added 

burden of retaining the certified or 

registered mail sender’s receipt will be 

minimal as the receipt can be associated 

with the small entity’s copy of the 

document that it filed with the IRS. 

Pursuant to section 7805(f) of the 

Code, the proposed rule that preceded 

this Treasury decision was submitted to 

the Chief Counsel for Advocacy of the 

Small Business Administration for 

comment on its impact on small 

businesses. 

Drafting Information 

The principal author of these 

regulations is Steven L. Karon of the 

Office of the Associate Chief Counsel, 

Procedure and Administration. 

List of Subjects in 26 CFR Part 301 

Employment taxes, Estate taxes, 

Excise taxes, Gift taxes, Income taxes, 

Penalties, Reporting and recordkeeping 

requirements. 

Adoption of Amendments to the 

Regulations 

Accordingly, 26 CFR part 301 is 

amended as follows: 

PART 301—PROCEDURE AND 

ADMINISTRATION 

■ Paragraph 1. The authority citation 

for part 301 is amended by removing the 


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Federal Register / Vol. 76, No. 163 / Tuesday, August 23, 2011 / Rules and Regulations 52563 

entry for § 301.7502–1T to read in part 

as follows: 

Authority: 26 U.S.C. 7805 * * * 

■ Par. 2. Section 301.7502–1 is 

amended by: 

■ 1. Revising paragraphs (b)(2) and (e). 

■ 2. Adding paragraphs (c)(3) and (g)(4). 

The additions and revisions read as 

follows: 

§ 301.7502–1 Timely mailing of documents 

and payments treated as timely filing and 

paying. 

* * * * * 

(b) * * * 

(2) Claims for refund—(i) In general. 

In the case of certain taxes, a return may 

constitute a claim for credit or refund. 

Section 7502 is applicable to the 

determination of whether a claim for 

credit or refund is timely filed for 

purposes of section 6511(a) if the 

conditions of section 7502 are met, 

irrespective of whether the claim is also 

a return. For rules regarding claims for 

refund on late filed tax returns, see 

paragraph (f) of this section. Section 

7502 is also applicable when a claim for 

credit or refund is delivered after the 

last day of the period specified in 

section 6511(b)(2)(A) or in any other 

corresponding provision of law relating 

to the limit on the amount of credit or 

refund that is allowable. 

(ii) Example. The rules of paragraph 

(b)(2)(i) of this section are illustrated by 

the following example: 

Example. (A) Taxpayer A, an individual, 

mailed his 2004 Form 1040, ‘‘U.S. Individual 

Income Tax Return,’’ on May 10, 2005, but 

no tax was paid at that time because the tax 

liability disclosed by the return had been 

completely satisfied by the income tax that 

had been withheld on A’s wages. On April 

15, 2008, A mails, in accordance with the 

requirements of this section, a Form 1040X, 

‘‘Amended U.S. Individual Income Tax 

Return,’’ claiming a refund of a portion of the 

tax that had been paid through withholding 

during 2004. The date of the postmark on the 

envelope containing the claim for refund is 

April 15, 2008. The claim is received by the 

IRS on April 18, 2008. 

(B) Under section 6511(a), A’s claim for 

refund is timely if filed within three years 

from May 10, 2005, the date on which A’s 

2004 return was filed. As a result of the 

limitations of section 6511(b)(2)(A), if A’s 

claim is not filed within three years after 

April 15, 2005, the date on which A is 

deemed under section 6513 to have paid his 

2004 tax, A is not entitled to any refund. 

Because A’s claim for refund is postmarked 

and mailed in accordance with the 

requirements of this section and is delivered 

after the last day of the period specified in 

section 6511(b)(2)(A), section 7502 is 

applicable and the claim is deemed to have 

been filed on April 15, 2008. 

* * * * * 

(c) * * * 

(3) Private delivery services. Under 

section 7502(f)(1), a service of a private 

delivery service (PDS) may be treated as 

an equivalent to United States mail for 

purposes of the postmark rule if the 

Commissioner determines that the 

service satisfies the conditions of 

section 7502(f)(2). Thus, the 

Commissioner may, in guidance 

published in the Internal Revenue 

Bulletin (see § 601.601(d)(2)(ii)(b) of this 

chapter), prescribe procedures and 

additional rules to designate a service of 

a PDS for purposes of the postmark rule 

of section 7502(a). 

* * * * * 

(e) Delivery—(1) General rule. Except 

as provided in section 7502(f) and 

paragraphs (c)(3) and (d) of this section, 

section 7502 is not applicable unless the 

document or payment is delivered by 

U.S. mail to the agency, officer, or office 

with which the document is required to 

be filed or to which payment is required 

to be made. 

(2) Exceptions to actual delivery—(i) 

Registered and certified mail. In the case 

of a document (but not a payment) sent 

by registered or certified mail, proof that 

the document was properly registered or 

that a postmarked certified mail 

sender’s receipt was properly issued 

and that the envelope was properly 

addressed to the agency, officer, or 

office constitutes prima facie evidence 

that the document was delivered to the 

agency, officer, or office. Other than 

direct proof of actual delivery, proof of 

proper use of registered or certified 

mail, and proof of proper use of a duly 

designated PDS as provided for by 

paragraph (e)(2)(ii) of this section, are 

the exclusive means to establish prima 

facie evidence of delivery of a document 

to the agency, officer, or office with 

which the document is required to be 

filed. No other evidence of a postmark 

or of mailing will be prima facie 

evidence of delivery or raise a 

presumption that the document was 

delivered. 

(ii) Equivalents of registered and 

certified mail. Under section 7502(f)(3), 

the Secretary may extend the prima 

facie evidence of delivery rule of section 

7502(c)(1)(A) to a service of a designated 

PDS, which is substantially equivalent 

to United States registered or certified 

mail. Thus, the Commissioner may, in 

guidance published in the Internal 

Revenue Bulletin (see 

§ 601.601(d)(2)(ii)(b) of this chapter), 

prescribe procedures and additional 

rules to designate a service of a PDS for 

purposes of demonstrating prima facie 

evidence of delivery of a document 

pursuant to section 7502(c). 

* * * * * 

(g) * * * 

(4) Registered or certified mail as the 

means to prove delivery of a document. 

Section 301.7502–1(e)(2) will apply to 

all documents mailed after September 

21, 2004. 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: August 10, 2011. 

Emily S. McMahon, 

Acting Assistant Secretary (Tax Policy). 

[FR Doc. 2011–21416 Filed 8–22–11; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2011–0194] 

RIN 1625–AA08 

Special Local Regulations; Sabine 

River, Orange, TX 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary Final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary Special Local 

Regulation on the Sabine River within 

the Port Arthur, TX Captain of the Port 

Zone. This Special Local Regulation is 

intended to restrict vessels from 

portions of the Sabine River during the 

annual S.P.O.R.T boat races. This 

Special Local Regulations is necessary 

to protect spectators and vessels from 

the hazards associated with powerboat 

races. 

DATES: This rule is effective from 8 a.m. 

on September 24, 2011 to 6 p.m. on 

September 25, 2011. This rule will be 

enforced from 8 a.m. until 6 p.m. on 

September 24 and 25, 2011. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2011–0194 and are 

available online by going to http:// 

www.regulations.gov, inserting USCG– 

2011–0194 in the ‘‘Keyword’’ box, and 

then clicking ‘‘Search.’’ This material is 

also available for inspection or copying 

at the Docket Management Facility (M– 

30), U.S. Department of Transportation, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 


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