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Are you a U.S. person for living overseas who is required to file U.S. taxes? Then you should be especially aware of U.S. filing deadlines, and the importance of timely filing your tax return under IRC Section 7502. Filing a tax return is often stressful enough for most people living in the U.S. Filing a return while living overseas can be yet an additional burden, particularly for those who do not speak a foreign language fluently, or for those residing in remote areas where access to sufficient postal delivery may be limited. Failure to timely file your tax return can lead to penalties and interest (and further, failure to timely file a refund claim can result in the expiration of such a claim). Hence, if you are a U.S. person living overseas you should ensure that you follow the rules that are outlined in this article.

This article strives to explain the basics of IRC Section 7502 and various revenue rulings clarifying the IRS position regarding timely filing of U.S. tax returns and other documents mailed from foreign countries. It is not intended to constitute tax or legal advice.

International taxation can involve many complex tax and legal issues, so it is highly advisable to seek an experienced attorney in these matters. Sherayzen Law Office, PLLC can assist you in all of your tax and legal needs, and help you avoid making costly mistakes.

A Brief History of IRC Section 7502 and Other Rules

Under the general rule of Internal Revenue Code Section 7502:

“if any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be.”

In other words, generally, if a taxpayer mailed a return or the other specified items before a stated deadline, the mailing date would be treated as the filing date, even though the return or other specified documents were received after the actual deadline (this is also commonly known as the “mailbox rule”).

For U.S. taxpayers living overseas, in Rev. Rul. 80-218 the IRS further clarified, “United States federal tax returns mailed by taxpayers in foreign countries will be accepted as timely filed if they bear an official postmark dated on or before midnight of the last date prescribed for filing, including any extension of time for such filing.” Note that Rev. Rul. 80-218 only addressed federal tax returns, and not the other types of items specified in IRC Section 7502, above.

Obstacles Overseas Taxpayers Face in Timely Filing Their Tax Returns

U.S. taxpayers living overseas have faced many obstacles when mailing various tax documents to the IRS from foreign countries, though. For instance, Pekar v. Commissioner, 113 T.C. 158 (1999), the Tax Court upheld the IRS’ determination that a taxpayer was liable for an addition to tax under IRC Section 6651(a)(1) for failing to file a tax return on or before the date prescribed for filing, despite the fact that the foreign postmark date that appeared on the envelope with the return was the return’s due date. The Tax Court held that Section 7502 did not apply to foreign postmarks, and that “foreign postmarks do not effectively cause the filing date of a document to be the postmark date.” In Action on Decision 2002-04, however, the IRS later filed a motion requesting that the Tax Court modify its opinion, and stated it would not follow the opinion regarding whether the late-filing addition to tax penalty applies.

Because of uncertainty that existed as to what types of private mail delivery services would be viewed as acceptable for filing a federal tax return outside of the U.S., Congress added IRC Section 7502(f). IRS Notice 2004-83 subsequently updated the list of designated private delivery services, including certain international private delivery services.

In Rev. Rul. 2002-23, the IRS additionally addressed some of the unresolved issues mentioned above resulting from Pekar and various revenue rulings. The Service held that it would accept federal tax returns properly meeting the requirements of Rev. Rul. 80-218, and that, “A federal tax return, claim for refund, statement, or other document required or permitted to be filed with the Service or with the United States Tax Court that is given to a designated international delivery service before midnight on the last date prescribed for filing shall be deemed timely filed pursuant to section 7502(a), (d)(1), and (f)(1).”