I Mailed It . . . But Can I Prove It?
Stites & Harbison Client Alert, January 28, 2021
The U.S. Postal Service has seen increased demands on its services over the last year. In fact, the majority of us have had an experience with a piece of mail that took a little longer than expected to get to its destination. Attorneys and their clients are especially reliant on the Postal Service’s smooth operation, especially with requirements for the mailing of legal notices. Personally, once I put a notice in the mail, I trust that it will arrive. However, with a recent decision from the Kentucky Supreme Court, the issue of proving the fact of that mailing has become a little more complicated.
In Pleasant Unions, LLC v. Kentucky Tax Company, LLC, the Court considered the “proof of mailing” requirement set forth in KRS 134.490. This statute requires third-party purchasers of delinquent tax bills to send certain notices to the individual taxpayer by “first-class mail with proof of mailing.” The Court first explained that, despite the literal wording of the statute, it does not require the third-party purchaser to send both the notice and proof of mailing of that notice to the taxpayer. The purpose of this statute is to eliminate the difficulties that taxpayers had faced in finding the third-party purchaser after the sale of their tax bill.
After resolving the ambiguity in the statute, the Court determined that “proof of mailing” is not a term of art and that the statute does not require a specific USPS first-class mail service (i.e., certified mail, return receipt requested). Since the statute does not specify the form of proof, the question for the Court was the sufficiency of the proof offered: an attorney’s affidavit swearing that he “caused a letter to be sent by first-class mail with proof of mailing” to the taxpayer. The Court found this proof insufficient, at least in the absence of proof of a regular system for mailing and compliance with that system, and reversed summary judgment in favor of the third-party purchaser.
So, if sworn testimony that an attorney caused a letter to be sent is insufficient proof of mailing, what should be done to make sure that you can prove you mailed the requisite notice? While KRS 134.490 deals with notices concerning delinquent tax bills, the exact phrase appears in at least eight other Kentucky statutes. Further, this interpretation of “proof of mailing” could be extended by courts to other required mailings and notices. Kentucky may now require, in the absence of proof of a particular mailing, proof of a regular system or scheme for mailing notices from which it could be presumed the notice was received. If you send out legal notices on a regular basis, please reach out to your attorney at Stites & Harbison so that we can work with you to prevent proving the mailing from becoming a problem.