Orange County Tax Lawyer Explains the Mail Box Rule

August 2, 2016

The Mail Box Rule: Disputing Receipt of Tax Notices

The so called “mail box rule” says that if someone puts a letter in the mail with the correct address, the law assumes that the person stated on the letter actually received the letter.   Most of us never think about this but certainly when it comes to tax notices, this rule is quiet painful.

Under some published cases, an “Affidavit of Non-Receipt,” signed under penalty of perjury, is sufficient to rebut this presumption of mailing.  

[Nunley  v. City of Los Angeles (1995) 52 F.3d 792, 796 (specific denial of receipt is sufficient to rebut the presumption of receipt from proof of mailing);  In re Yoder Co. (1985) 785 F.2d 1114, 1118 (testimony of non-receipt, standing alone, is enough to rebut the presumption of receipt); Legille v. Dann (1976) 544 F.2d 1, 6, 7.]

Other cases have noted that giving conclusive effect to the presumption arising from “the mail box rule” would contravene the purpose of the collection Due Process of the Internal Revenue Code.  [United States V. Bowen (1969) 414 F.2d 1268, 1273 (regulations that in effect creates a conclusive presumption that mail sent is received is held unconstitutional in violation of Due Process under the Fifth Amendment); Solberg v. Secretary of Department of Health and Human Services (1984) 583 F. Supp. 1095, 1097 (presumption of delivery of mailed letter may not be given conclusive effect without violation the Due Process clause).]

In the context of federal income tax, the courts have noted that Congress enacted sections 6320 and sections 6330 of the Internal Revenue Code to afford taxpayers Due Process in collections and intended that taxpayers be given a “meaningful hearing before the Internal Revenue Service deprives them of property.” (Internal Revenue Code Sections 6320 and 6330 require that notices be made by certified or registered mail to the taxpayer’s last known address.) [Senate Report No. 105-174 at 67 (1998), 1998-3 COB. 537, 603]

The courts have held that the standard of proof as to mailing and receipt is not a conclusive presumption but a preponderance of the evidence.  “Allowing evidence of the mailing of a notice to create an effectively conclusive presumption of receipt could deny a taxpayer any opportunity to contest his tax liability before payment.  Therefore, the question of whether a taxpayer actually received notice of deficiency notwithstanding the taxpayer’s denials should be decided not by an effectively conclusive presumption but instead by preponderance of the evidence.” [Casey v. Commissioner 2009 WL 1606226, at 4; Sego v. Commissioner (2000) 114 T.C. 604, 611; Klingender v. Commissioner, TC. Memo. 2012-292, at 12); Garret v. Commissioner, T.C. Memo. 2015-228.]

The courts have noted that in many cases it is impossible for the taxpayer to provide actual documentary proof that he did not actually receive the notices and that, in such cases, when the taxpayer files an Affidavit of Non-Receipt, under penalty of perjury, the taxpayer has met his burden of proof.  [Garret v. Commissioner, T.C. Memo. 2015-228 at 14]

Contact Our Orange County Tax Lawyer for More Information

For more information on the mailbox rule or personal financial matters concerning your business organization, taxes, estates, trusts, contracts, asset protection, or property ownership, contact us at Fitzgerald Yap Kreditor at (949) 788-8900.