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You take your tax information to your return preparer. He or she prepares your return. You review the return and sign Form 8879, which authorizes your return preparer to file your return electronically. For some reason, your return preparer never files your return (or your return preparer files your return, the IRS rejects it, and your return preparer doesn’t fix the issue in a timely manner). The IRS assesses penalties against you for failing to file your return. Can the IRS do so?
 
The Eleventh Circuit Court of Appeals said “Yes” in its recent decision in Lee v. United States.
 
It is a well-established rule that a taxpayer cannot delegate the duty to file a tax return to another person. In other words, you are responsible for filing your tax return. You cannot rely on your return preparer to actually file the return. When the IRS assesses penalties against you for not filing your return or filing your return late, you cannot blame your return preparer as a way to get out of the penalties.
 
In Lee, the taxpayer argued that since he authorized the return preparer to file his return electronically, there was nothing left for him to do. Essentially, he argued, he could not file his return. Only his return preparer could push the button to file the return.
 
Although this might make practical sense, the court disagreed. The court upheld the long-standing rule that a taxpayer has an obligation to file a tax return. The taxpayer cannot delegate this responsibility to anyone else – even in the case of electronic filing.
 
What do you, as a taxpayer, do to ensure your return is actually filed? You can ask your return preparer for the electronic filing confirmation (which you need to do in advance of April 15th). Until you receive this confirmation from your return preparer, you should not consider your return to have been filed in a timely manner. 
 
You could also mail your tax return yourself, though mailing presents other challenges (you should always send mail to the IRS via certified mail so you have a record of it being sent and delivered).
 
Taxpayers generally assume their return preparer filed their return once they signed Form 8879. This case serves as a reminder that taxpayers should never make such assumptions. Taxpayers need to make sure themselves that their returns have actually been filed on time, whether electronically by the return preparer or by the taxpayer directly.
 
The lesson for taxpayers is that it is worth the extra few dollars to send correspondence to the IRS by certified mail. Doing so will save thousands of dollars in legal fees to establish timely filing in the future.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.