Rev. Rul. 73-133

Advice has been requested whether the "timely mailed--timely filed" rule of section 7502(a) of the Internal Revenue Code of 1954 should be applied in computing the delinquency penalty imposed by section 6651(a)(1) for failure to timely file a return.

The specific question is whether, under the circumstances described below, the delinquency penalty imposed by section 6651(a)(1) of the Code is 5% or 10%. The taxpayer's prescribed date for filing his return was April 15, 1972. He did not obtain an extension of time for filing his return. It was mailed and postmarked on May 15, 1972. The return was received by the Internal Revenue Service on May 16, 1972 showing a balance due.

Section 6072(a) of the Code provides that in the case of returns relating to income tax under subtitle A, the returns made on the basis of the calendar year shall be filed on or before the 15th day of April following the close of the calendar year. Section 6651(a)(1) of the Code provides that in the case of failure to file any return on the date prescribed, unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than one month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate.

Section 7502(a)(1) of the Code provides, in general, that if any return is required to be filed before a specified date, and the return is delivered by United States mail after such date to the agency, officer, or office with which such return is required to be filed, it shall be deemed to have been filed on or before that date if the United States postmark stamped on the cover in which such return is mailed is dated on or before the date prescribed for filing.

Section 7502(a)(2) of the Code provides that the general rule of section 7502(a)(1) shall apply only if the postmark falls on or before the prescribed date for the filing of the return, and the return is deposited in the mail in an envelope or other appropriate wrapper, postage prepaid and properly addressed.

Section 301.6651-1(b)(3) of the Regulations on Procedure and Administration provides that if a return is not timely filed, the fact that the date prescribed for filing the return falls on a Saturday, Sunday, or legal holiday is immaterial in determining the number of months for which the addition to the tax under section 6651 applies.

The return in the instant case was not filed on or before April 15, 1972, the due date of the return and the only prescribed date for filing the return in the situation described.

In view of the above, the "timely-mailed--timely filed" rule of section 7502(a) of the Code is not applicable in the computation of the delinquency penalty imposed by section 6651(a)(1).

Therefore, it is held that the taxpayer is subject to a 10% delinquency penalty imposed by section 6651(a)(1) of the Code on the net amount required to be shown on his return, since the failure to file continued for a month and a fraction of a month.