Mandatory Public Disclosure of the Form 990 and Other IRS Documents: What Tax-Exempt Organizations Need to Know

In general, tax-exempt organizations must make available for public inspection certain annual information and tax returns and applications for recognition of federal tax exemption, and must provide copies of such returns and applications to individuals who request them (for any or no reason). Copies usually must be provided immediately in the case of in-person requests, and within 30 days in the case of written requests. The tax-exempt organization may charge a reasonable copying fee plus actual postage, if any. The IRS must also make this same information publicly available.

Public Inspection Requirements. Specifically, a tax-exempt organization must make readily available for (in-person) public inspection its application for recognition of federal tax exemption (Form 1023 or 1024) (along with all materials, such as Articles of Incorporation and Bylaws, submitted in support of the application (with certain exceptions), and all correspondence to and from the IRS in connection with the application, including but not limited to the IRS “Determination Letter” affirming the recognition of the organization's tax-exempt status, all questions posed to the organization by the IRS, and the organization's answers to such questions) and its most recent three annual information returns and tax returns (e.g., Form 990, Form 990-EZ, Form 990-PF, Form 990-T (the Form 990-T is only subject to public disclosure for 501(c)(3) organizations)) – including all schedules and attachments filed with such returns – to anyone who requests them. With the exception of private foundations, the organization need not disclose the names or addresses of its contributors.

These documents must be made available during regular business hours at the organization's principal office, and at any regional or district offices with three or more employees.

These disclosure requirements do not apply to applications for tax exemption (or supporting and related documents, as described above) filed before July 15, 1987, unless the organization filing the application had a copy of the application on July 15, 1987; this exception does not apply to the organization's annual information or tax returns.

Requests for Copies. In addition, tax-exempt organizations must comply with requests, made in person or in writing, for copies of such documents. Individuals can request parts of such documents rather than the entire document as long as they identify the specific part they want. An organization is allowed to charge reasonable fees for copying and mailing costs (if sent by mail; if sent by email, there would be no fees or costs). The fees for copies cannot exceed amounts charged by the IRS; the current fees are 20 cents per page.

If a request for copies is made in person, it must be satisfied immediately (unless unusual circumstances exist, such as receipt in-person requests that exceed the organization's ability to process such requests on the same day, or a request received while the organization's staff are performing special duties such attending an off-site meeting or convention).

An organization is permitted 30 days to provide the copies of such documents if the request is made in writing. Advance payment for such copies can be required (provided the copies are provided within 30 days of payment), so long as the request for advance payment is made within seven days of receiving the written request for the copies. To protect requesters from unexpected fees, when an organization receives a request in writing without advance payment, it must obtain consent before providing copies that will result in fees of over $20.

An organization must accept payment by (i) cash or money order, or (ii) personal check, if the request is made in writing, but the organization is not required to accept other means of payment, such as credit cards. However, an organization is not required to accept personal checks if it permits payment by credit card.

Exceptions to Copying Requirements. There are two exceptions to these copying requirements. An organization will be relieved of its obligation to provide copies if: (i) it makes the requested documents widely available to the public (e.g., if the documents are posted on the organization's website or in a similar publicly-available fashion); or (ii) it receives a waiver because the IRS has determined that the organization is the subject of a harassment campaign by opponents and that a waiver would be in the public interest (i.e., where the IRS determines that the purpose of a group of requests is to disrupt the operations of the organization rather than to obtain information). IRS regulations provide that an organization may, without requesting IRS approval, disregard requests for copies in excess of two per month or four per year made by a single individual or sent from a single address.

Subordinate Organizations Covered by Group Exemption. A tax-exempt organization that did not file its own application for tax exemption because it is a subordinate organization covered by a group exemption must, upon request, make available for public inspection, or provide copies of: (i) the application submitted to the IRS by the central organization to obtain the group exemption, and (ii) the documents submitted to the IRS to include the subordinate organization in the group exemption. If the central organization provides lists or directories of the subordinate organizations covered by the group exemption, the subordinate organization is only required to provide the application for the group exemption along with the page or pages of the list or directory that specifically refers to it.

Subordinate Organizations Included in Group Return. An organization that does not file its own annual information return because it is affiliated with a central organization that files a group return in which it is included must, upon request, make available for public inspection, or provide copies of, the group returns filed by the central organization. If the group return includes separate schedules with respect to each subordinate organization, schedules relating to other subordinate organizations may be omitted.

For both applications for group exemption and annual information returns of subordinate organizations, the requester has the option of requesting these documents directly from the central organization.

Alerting IRS of Noncompliance with Requirements. If an organization denies an individual’s request for inspection or a copy of any such documents, the individual may alert the IRS “to the possible need for enforcement action” by writing to IRS EO Classification, Mail Code 4910, 1100 Commerce Street, Dallas, TX 75242. The letter should provide the name and address of the organization that refuses to allow public inspection or provide copies of its documents, and request that the documents be made available for public inspection. The Tax Exempt/Government Entities Division of the IRS will contact the organization and arrange a time during which the documents may be inspected. If the organization fails to provide the documents at the agreed upon time, statutory penalties may be assessed.

Penalties for Noncompliance. The penalty on the organization for each willful failure to permit public inspection or provide copies of such documents is $5,000 for each information or tax return or application for recognition of federal tax exemption. In addition, responsible individuals of an organization who fail to provide such documents as required may be subject to a penalty of $20 per day for as long as the failure continues. There is a maximum penalty on responsible individuals of $10,000 for each failure to provide a copy of an annual information or tax return; there is no maximum penalty for the failure to provide a copy of a tax-exemption application.

Obtaining Documents from the IRS. To request a copy of either the tax-exemption application (including all supporting documents) or the annual information or tax return, requestors should submit Form 4506-A, Request for Public Inspection or Copy of Exempt Organization IRS Form. Mail the form to the applicable IRS office listed here.

IRS FAQs. To review a series of IRS FAQs on these public disclosure requirements for tax-exempt organizations, click here.

For more information, contact the author at jtenenbaum@TenenbaumLegal.com.