In our “Q&A Forum,” this question was recently posed (#8275): “For legal purposes, when does a day end and next day begin? We are reorganizing certain subs as LLCs and our tax group is saying that if we incorrectly incorporate one minute late, we have to file taxes for the full year. So, does anyone know of any legal guidance or precedence on when a new year begins? Is it 12am or 12:01am? Also, why do we sometimes use 11:59pm in certain documents? By the way, the tax group does not know the answer to this.”
I was stuck – so I turned to my advisory board (to whom I am grateful to and for), who gave this host of useful answers:
– When in doubt ask Wikipedia. The answer is the day begins a the first measurable moment after midnight (midnight itself is a transition and straddles both days). So they should file at 12:00:01 a.m. The SEC agrees. For tender offers, the SEC takes the position that a “business day” means “any day, other than Saturday, Sunday or a federal holiday, and shall consist of the time period from 12:01 a.m. through 12:00 midnight Eastern time.”
– US Govt website – “Is midnight the end of a day or the beginning of a day?” with answer of: When someone refers to “midnight tonight” or “midnight last night” the reference of time is obvious. However, if a date/time is referred to as “at midnight on Friday, October 20th” the intention could be either midnight the beginning of the day or midnight at the end of the day.
To avoid ambiguity, specification of an event as occurring on a particular day at 11:59 p.m. or 12:01 a.m. is a good idea, especially legal documents such as contracts and insurance policies. Another option would be to use 24-hour clock, using the designation of 0000 to refer to midnight at the beginning of a given day (or date) and 2400 to designate the end of a given day (or date).
– Didn’t see anything from the IRS, but here’s what the National Institute of Standards and Technology’s website says: “Is midnight the end of a day or the beginning of a day? When someone refers to “midnight tonight” or “midnight last night” the reference of time is obvious. However, if a date/time is referred to as “at midnight on Friday, October 20th” the intention could be either midnight the beginning of the day or midnight at the end of the day. To avoid ambiguity, specification of an event as occurring on a particular day at 11:59 p.m. or 12:01 a.m. is a good idea, especially legal documents such as contracts and insurance policies. Another option would be to use 24-hour clock, using the designation of 0000 to refer to midnight at the beginning of a given day (or date) and 2400 to designate the end of a given day (or date). These are the guys who are literally in charge of time for the Empire, so in the absence of anything from another Imperial agency, I’d rely on this.
– I would say 12:01 am as the start of a new day. Or 12:00:01 am. I have no good authority to cite for that. But, I have often debated whether midnight is the end of the day or the start of the next. So, I avoid the question by falling clearly into the next day (or 11:59 pm to get the previous day with certainty).
– I asked one of our tax attorneys (who always seems to know everything). She didn’t know the answer, but here is her personal practice: If she needs something to happen before the next day, she uses 11:59 p.m.. If she needs to make sure it happened on that date and not at any time before, she uses 12:01 a.m.. 12:00/midnight is just too ambiguous so she treats that time as the line between the two days.
– See 13e-4. That answers the question (at least in the tender offer context).
– I love the science, but timing this precise seldom really matters outside my legal work. For what it’s worth, I have personal knowledge that EDGAR thinks that it’s still 5:30 until the clock ticks over to 5:31. I once had a filing accepted and treated as filed at 5:30:57. You can’t cut it much closer than that!
– Most – maybe almost all – states have a date counting law that expressly discuss this kind of stuff.
– As I told my buddy, if I could, I’d yell at them, “Stop f’cking around and just sign the damned thing at 11:59 pm!!!”
– It’s neither of those. One practical suggestion, observe the US Naval Observatory’s atomic clock on www.time.gov at midnight in your time zone and see at what precise second the date ticks over. That would reflect (and perhaps define) the official US government position on when a day starts.
This discussion reminds me of the passion around the New Millenium debate. I.e., did the 21st century start 1/1/2000 or 1/1/2001? My view: when counting virtually anything, the first item is numbered 1 not 0 or some fraction. So, if one were to imagine the hypothetical beginning of the current calendar system, there wouldn’t have been a hypothetical year 0. The count would start at January 1, 0001 – the first day of the first year. Each succeeding Millenium therefore ends December 31, X000. So, the first century started 0001 and ended 1000. The 21st started 2001 and will end 2100.
Similarly, the timekeeping at the beginning of that calendar system would have begun at 12:00:01 AM, January 1, 0001 – counting the first second (or whatever fraction of a second you choose) of that first day. Each suceeding day therefore ends at midnight 12:00:00. The next day begins a nanosecond after midnight. So, it seems most accurate to say that each day ends at midnight, and the next day starts “immediately after midnight.”
Now, don’t get me started on “business day.”
-Broc Romanek, TheCorporateCounsel.net May 5, 2015
Want to keep reading?
Great. Enter your email address and gain instant access to this article