What should I do if the USPS loses my 83(b) election?
There’s a strict 30-day deadline for filing your 83(b) election with the IRS, so it can be nerve-racking if you suspect the USPS has lost your mail. One problem is that it’s hard to know for certain if mail has truly been lost. In our experience, sometimes the tracking history just doesn’t update properly, and we only find out later that mail was successfully delivered. If you’re in this uncertain position, here’s what you can do.
Before Your 83(b) Election Deadline
Option 1: Send a Duplicate Election
If you suspect that the USPS lost your mail, or if you aren’t sure but don’t want to take any chances, you can consider sending a duplicate 83(b) election form before your 83(b) election deadline. Please note that if your first 83(b) election form ends up being delivered to the IRS, it's possible they may end up with two copies of your 83(b) election form. The IRS hasn't given guidance on whether this would cause any problems. That said, we've not heard of any issues.
We’ll let you know right away if your USPS tracking information isn't showing the progress we typically see. If this happens, we’ll give you the option to use the Managed 83(b) Election add-on to send a duplicate 83(b) election form for a reduced fee.
Option 2: Call the IRS
There’s no guarantee of success, but you can try calling the IRS to confirm receipt. See step-by-step instructions in Can I call the IRS to confirm its receipt of my 83(b) election?. Keep in mind that if the IRS can't confirm receipt, that doesn't mean your 83(b) election form is lost. The IRS might still receive your 83(b) election after you call. It's also possible the IRS received your 83(b) election form and the IRS staff don't yet have access to that information or are mistaken.
Option 3: Do Nothing
This is only an option if you have a USPS-postmarked Certified Mail receipt for your 83(b) election form. If you do and the date of the postmark is on or before your deadline, your 83(b) election will be considered on time even if it arrives at the IRS after your deadline. That’s because USPS-postmarked Certified Mail receipts constitute prima facie evidence of delivery under US tax law. For this reason, a USPS-postmarked Certified Mail receipt is typically considered adequate proof of a successful 83(b) election in legal due diligence.
Note that even with a USPS-postmarked Certified Mail receipt, the IRS can attempt to counter with their own evidence that they didn't receive your 83(b) election. However, we're not aware of any instances where the IRS has attempted to do this when a taxpayer had a USPS-postmarked Certified Mail receipt.
Our Managed 83(b) Election add-on follows standard best practices and obtains a USPS-postmarked Certified Mail receipt for each 83(b) election form mailed.
After Your 83(b) Election Deadline
Option 1: Call the IRS
There’s no guarantee of success, but you can try calling the IRS to confirm receipt. See step-by-step instructions in Can I call the IRS to confirm its receipt of my 83(b) election?. Keep in mind that if the IRS can't confirm receipt, that doesn't mean your 83(b) election form is lost. The IRS might still receive your 83(b) election after you call. It's also possible the IRS received your 83(b) election form and the IRS staff don't yet have access to that information or are mistaken.
If you try this but still can’t get confirmation from the IRS after some period of time, you can consult a startup attorney for advice on next steps. Alternatively, if you obtained a USPS-postmarked certified mail receipt, you could choose to do nothing and hope the receipt will suffice if there is ever a dispute with the IRS over whether the 83(b) election was made. The USPS-postmarked certified mail receipt is typically sufficient for legal due diligence in a venture capital financing or acquisition.
Option 2: Do Nothing
You already have proof of delivery if you have a USPS-postmarked Certified Mail receipt for your 83(b) election form. If you do and the date of the postmark is on or before your deadline, your 83(b) election will be considered on time even if it arrives at the IRS after your deadline. That’s because USPS-postmarked Certified Mail receipts constitute prima facie evidence of delivery under US tax law. For this reason, a USPS-postmarked Certified Mail receipt is typically considered adequate proof of a successful 83(b) election in legal due diligence.
Note that even with a USPS-postmarked Certified Mail receipt, the IRS can attempt to counter with their own evidence that they didn't receive your 83(b) election. However, we're not aware of any instances where the IRS has attempted to do this when a taxpayer had a USPS-postmarked Certified Mail receipt.
Our Managed 83(b) Election add-on follows standard best practices and obtains a USPS-postmarked Certified Mail receipt for each 83(b) election form mailed.