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February 18, 2015 - Phil Hodgen

You can’t file Form 8854 via FedEx or UPS

EDIT:  read the story of a successful Form 8854 filing by FedEx.

This Week’s Expatriation Question

This week’s question is postal. It came in a comment to a blog post on the site.

Hi, does anyone know the STREET address to file form 8854? The instructions only listed a generic US mail address. I need a street address for FEDEX to deliver it. Please advise.

Quick Answer

I do not know of any street address where the IRS has authorized you to deliver Form 8854 by FedEx (or other private courier service).

You will have to mail in your Form 8854. Sorry.

Form 8854 Instructions: “File”

The Instructions to Form 8854 say “file” but don’t tell you exactly where.

Where To File

  1. Send your original initial or annual Form 8854 to the address listed below.
  2. If you are required to attach the original Form 8854 to a Form 1040NR or a Form1040, send a copy of your initial or annual Form 8854, marked “Copy,” to the address listed below.
  3. If you elected to defer the payment of any tax due, see the instructions under Part IV, Section C, Line 15, later, on where to send your tax deferral agreement request.

Department of the Treasury

Internal Revenue Service

Philadelphia, PA 19255-0049

Filing Means Physical Delivery

Congress gave the IRS full power to say where tax returns are to be filed.

When not otherwise provided for by this title, the Secretary shall by regulations prescribe the place for the filing of any return, declaration, statement, or other document, or copies thereof, required by this title or by regulations.1

Congress must micromanage even trivial decisions, so Section 6091 has a bunch of specified places to file stuff. For Form 8854 filing purposes, however, Congress left the decision to the IRS. For Americans abroad and nonresident aliens, the IRS can write regulations to say where tax returns are to be filed.2

In general, “filing” means physical delivery of the tax form3 to the office specified by the IRS. Congress said that the IRS has the power to say where tax returns are to be filed. This means you look at Section 6091, the Regulations published under Section 6091, and the Instructions to the relevant form to figure out the place the IRS wants you to send the pieces of paper.

Give to the Post Office = Physical Delivery to IRS

Because delivery by Postal Service is less reliable than other methods Congress added a second rule, saying USPS = IRS. If you can prove you gave a piece of paper to the Postal Service on a specific date, that is treated as being the same as physical delivery of the piece of paper to the IRS.

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.4

Warning: the rules for mailing stuff from outside the United States (and the date on which they are deemed delivered to the IRS) are problematic. That’s a topic for another day.

Private Delivery Service = Postal Service

Congress says that private delivery services can be used to deliver tax returns:

Any reference in this section to the United States mail shall be treated as including a reference to any designated delivery service, and any reference in this section to a postmark by the United States Postal Service shall be treated as including a reference to any date recorded or marked as described in paragraph (2)© by any designated delivery service.5

Thus, giving your tax forms to a “designated delivery service” is the same as giving your tax forms to the Postal Service. There are two companies that provide the designated delivery service, and only SOME of their services are approved for use.

Taxpayers or Tax Professionals can use certain private delivery services designated by the IRS to meet the “timely mailing as timely filing/paying” rule for tax returns and payments. These private delivery services include only the following:

  • Federal Express (FedEx): FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2Day, FedEx International Priority, and 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, and UPS Worldwide Express.6

Why You Want FedEx, Not the Post Office

The person asking the question undoubtedly wants to use FedEx because it more reliable than the Post Office. While I am second to none in my appreciation of worldwide Postal Services (a true modern miracle of human ingenuity)7 the blunt truth is that these systems are untrustworthy. If your life is on the line, you don’t use the Post Office.

I know this is true because this week I have been corresponding with a woman who expatriated in 2010 and filed her Form 8854 in 2011. The IRS is in denial, claiming no such filing was made. It’s a laugh riot.

Who needs that brain damage?

Private Delivery Service + Form 8854 = SooL

Here’s why the person asking the question has a problem: the Postal option works for filing anything at any IRS Service Center, but the Private Delivery Service option only applies to a limited set of Service Centers.

There is a limited list of physical addresses that will accept FedEx or UPS deliveries), and the Philadelphia Service Center is not on that list. Explicitly, the IRS says that you cannot send stuff by private delivery services to an unlisted address.

Even worse, the IRS has a web page that says where various forms starting with then number “8” should be filed. It does not mention Form 8854.

Conclusion: you are Simply out of Luck (see what I did there?). You will have to file your Form 8854 in Philadelphia using the Postal Service.

Minimize Your Risk

Since you are relying on an unreliable delivery mechanism, at a bare minimum get every sort of proof of mailing that your country’s Postal Service gives you. I have gone through these battles with the IRS (IRS: “You did not give us your piece of paper”; You: “Oh, yes I did”) and you can win them.

Preferable – and this is what we do – is to FedEx your Form 8854 to someone in the United States. That person then walks over to a friendly U.S. Post Office and buys all the excess frippery that the Post Office will sell you. Spend all that money so you will be able to prove that (a) the USPS got the envelope from you and (b) they delivered it to the IRS. Or at least you will have a bunch of receipts to show the IRS to prove that the Post Office ate your envelope for lunch.

Your Pocket Demi-Ace

There is one backup piece of evidence that might help if everything goes sideways in Philadelphia. Remember that you file Form 8854 twice:8 once attached to your final year income tax return, and then again separately by mail and mail alone in Philadelphia.

You cannot file your Form 8854 in Philadelphia by FedEx, but you can file your final year income tax return by using FedEx. That final tax return has Form 8854 attached to it. Proving that your final income tax return (with Form 8854 attached) was delivered by FedEx on time will go a long way to supporting your other proof that you mailed the Form 8854 to Philadelphia on time.

It isn’t perfect, but it’s something.

Phone Call

Just to double check this, one of our team members called the IRS to ask about filing Form 8854 in Philadelphia via FedEx. He waited while the person answering the phone spent 15 minutes checking on this. The report back from the IRS employee?

Nope, sorry. Mail it in.

Routine Disclaimer

I am not your lawyer, and this is not legal advice to you. If you need help, please hire someone who can advise you.

Next Week

Next week I will answer another question about expatriation. Send me an email!

Phil


  1. 26 U.S.C. § 6091(a). 
  2. 26 U.S.C. § 6091(b)(1)(B). 
  3. Hotel Equities Corp. v. Commissioner, 546 F.2d 725 (7th Cir. 1976). 
  4. 26 U.S.C. § 7502(a)(1). 
  5. 26 U.S.C. § 7502(a)(1). 
  6. http://www.irs.gov/uac/Private-Delivery-Services-(PDS) 
  7. Hat tip to Miracle on 39th Street. Watch the courtroom scene. 
  8. Because we’re the government and we make the rules. 
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