Your Finance Questions, June 2008

Question. I dropped a number of charitable contributions in the mail on December 31, 2007.

Question. I dropped a number of charitable contributions in the mail on December 31, 2007. Some of them were reported as 2007 contributions but one (for $1,000) was reported as a 2008 contribution. I called the church and found that this envelope was postmarked January 2, 2008. The rest of the envelopes were postmarked in 2007. The church treasurer informed me that, because the postmark date (2008) was controlling, he had to include this as a 2008 contribution. Is this true? Is the check that is mailed in 2007 but postmarked in 2008, deductible in 2008?

Answer. Section 170 of the tax code states that “there shall be allowed as a deduction any charitable contribution payment of which is made within the taxable year.” Section 1.170A-1 of the regulations states that “the unconditional delivery or mailing of a check which subsequently clears in due course will constitute an effective contribution on the date of delivery or mailing.” Similarly, Publication 526 states that “a check that you mail to a charity is considered delivered on the date you mail it.”

In none of these cases is there a requirement that the check be postmarked as well as mailed in a particular year in order for a deduction to be available in that year. However, this is the position that is taken by the vast majority of charities, including major universities, government agencies, the American Bar Association, and the Association of Fundraising Professionals. The reasons are obvious. Charities must determine how to allocate contribution checks that are received in the mail during the first week of each new year. Are they current or prior year contributions? Sure, the charity could ignore the postmarks and proceed to question every one of those donors to ascertain the date they placed their checks in the mail. But I am aware of no charity that does this.

It is far more prudent, and reasonable, to use the postmark as conclusive evidence of when a check was mailed. Yes, this will work to the detriment of a very small number of donors who slip their check in the mailbox in the closing moments of the prior year, after the last mail pickup. Technically, those donors could claim a charitable contribution deduction in the prior year, based on the tax code and regulations quoted above. However, keep in mind one additional point. It is the taxpayer who has the burden of proving his or her entitlement to any tax deduction, including a charitable contribution. Donors are certainly free to claim a charitable contribution on their 2007 tax return for checks dropped in the mail on December 31 (but that were not postmarked until January of 2008). However, bear in mind that the donor has the burden proving that this in fact was the case. In most cases, this will be a difficult if not impossible task.

In other words, what evidence could a donor present to prove that the postmark is wrong? There would be rare exceptions where this would be possible. For example, a donor asks a disinterested person (his neighbor) to accompany him to a mailbox just before midnight on December 31; has the neighbor examine the contribution check before it is placed in an envelope (making a written record of the name of the donee and the amount of the check); makes a record of the addressee identified on the envelope, and ensures that proper postage is affixed; observes the donor place the envelope in the mailbox; and, notes and records the precise time that the envelope is placed in the mailbox. How many donors would be able to satisfy their burden of proof in this manner?

For all of these reasons, the vast majority of charities receipt contributions they receive by mail according to the postmark date.

Finally, note that neither the IRS, nor any court, has ever addressed the question you have raised, so we have no definitive precedent either way. I suspect that if this issue was ever raised, the most likely outcome would be that the IRS, or a court, would rule that the postmark date is the best evidence of when a check is mailed, and that a taxpayer has a heavy burden to prove that a check was mailed in a year prior to its postmark date.

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