IRS regulations require non-profits to make their Form 990 information returns and Form 1023 Application for Recognition of Tax Exemption available for public inspection and/or via mail.
Public Inspection Requirements
In general, any organization that files a Form 990 (including Form 990-EZ, Form 990-PF, etc.) must make its three most recent Form 990's and its Form 1023 available for public inspection without charge at its principal place of business. All parts of the return, schedules and attachments must be made available during regular business hours at the organization's principal office and at any regional offices having 3 or more employees (organizations that are not private foundations do not have to make contributor names and addresses available). The organization's application for recognition of exemption (Form 1023 or Form 1024) must also be made available, unless the application was submitted prior to July 15, 1987, and the organization did not have a copy of its original application on Jul 15, 1987.
The organization may have a staff member present in the room during the public inspection. However, the organization must allow the visitor to take notes freely during the inspection. If the visitor makes an in-person request for copies of the documents, the organization may require prepayment of reasonable fees (see below) but must generally provide the copies on the same day as the request was made. If the visitor brings his/her own copying equipment to the place of inspection, the organization must allow the visitor to make copies on site free of charge.
Requests for Copies
In addition to the public inspection requirements, all tax-exempt organizations, including private foundations, will have to provide copies of their Form 1023 and their three most recent Form 990's upon request. Copies of all schedules, attachments and supporting documents filed with these forms must also be provided, except for the names and addresses of contributors to the organization (for organizations that are not private foundations). An organization does not have to provide a copy of its Form 1023 if that form was filed prior to July 15, 1987, unless the organization had a copy of the application on July 15, 1987. Also, an organization that has not yet been recognized as tax-exempt is not required to provide a copy of its pending Form 1023.
Allowable Charges and Timeliness of Responses to Requests for Documents
The organization may charge "reasonable fees" for copying (not to exceed IRS fees for the same materials, currently $1.00 for the first page and $.15 for each subsequent page), plus actual postage costs, but may not charge any additional fees. An organization may require that the fees be prepaid before copies are provided.
If the request is made in person, the copies must generally be provided on the same day of the request, although some limited extensions are granted for "unusual circumstances." If the request is made by mail, the organization must provide the copies within 30 days of receiving the request (or 30 days after receipt of payment, if the organization chooses to require advance payment for copies).
The regulations allow an organization to retain an agent to respond to requests for its documents, but the organization retains responsibility for complying with the law and regulations as well as associated penalties for failure to comply.
"Widely Available" Exception
The law provides that a non-profit need not provide copies of its Form 990 or 1023 if it has made those documents "widely available." Under the IRS regulations, an organization can satisfy this requirement by posting the document(s) on the Internet, either on the organization's own Web page, or as part of a database of similar documents, established and maintained by another entity.
For documents to be considered "widely available," the following requirements must be met:
An organization that makes its documents available on the Web must tell anyone requesting the information where this information can be found, including the Web address, if applicable. This information must be provided immediately for in-person requests and within 7 days for mailed requests.
Exceptions for Harassment Campaigns
An organization will not have to comply with a request that is found to have been part of a campaign to harass the organization where compliance would not be deemed in the public interest. The regulations state that a group of requests for an organization's Form 990 or 1023 is indicative of a harassment campaign if "the requests are part of a single coordinated effort to disrupt the operations of a tax-exempt organization rather than to collect information about the organization."
An organization that feels that it is the subject of a harassment campaign must apply for such a determination to the director of the IRS key district where the organization's principal office is located. The application must be filed within 10 business days from the time the organization began to reasonably believe that a request was part of a harassment campaign. The organization may suspend compliance with requests that it believes are part of such a campaign until a final determination is made by the IRS.
In determining whether harassment is occurring, the IRS will review the facts and circumstances of each individual case. However, some indicators of a harassment campaign may include: a sudden increase in the number of requests; an extraordinary number of requests made through form letters or similarly worded correspondence; evidence of intent to significantly deter the organization's personnel from pursuing its exempt purpose; requests containing language hostile to the organization; direct evidence of bad faith by organizers of the alleged harassment campaign; evidence that the organization has already provided the requested documents to a member of the alleged harassing group; and a demonstration by the organization that it routinely provides copies of its documents upon request.
Under normal circumstances, requests from members of the news media will not be considered harassment by the IRS, nor will an increase in unrelated requests resulting solely from an article or story appearing in the news media. The organization must demonstrate evidence of a coordinated, intentional effort on the part of the persons requesting the information.
The rules also provide special exceptions to allow organizations to ignore multiple requests from a single individual or address without seeking a determination of harassment from the IRS. An organization may disregard requests beyond the first two within any 30-day period or the first four within any one-year period that come from the same person or same address.
Public Inspection/Disclosure Requirements for Form 990-T
Under the Pension Protection Act signed into law in August 2006, effective for returns filed after August 17, 2006 (including extensions), a section 501(c)(3) organization that has gross income from an unrelated trade or business of $1,000 or more must make its Form 990-T, annual exempt organization business income tax return (including amended returns), available for public inspection and copying. A section 501(c)(3) organization filing the Form 990-T only to request a credit for certain federal excise taxes paid (such as the telephone excise tax) does not have to make the Form 990-T available for public inspection.
For More Information
The text of the regulations can be found on the IRS Web site at http://www.irs.gov/pub/irs-tege/26cfr301_6104d_1.pdf. Note, however, that this text predates the Form 990-T requirement; as stated above, Form 990-T is also now subject to public inspection and disclosure (see IRS Notice 2007-45, available at http://www.irs.gov/pub/irs-drop/n-07-45.pdf).
This document is for informational purposes only and does not constitute legal advice or a legal opinion. For answers to specific questions concerning your situation, you should consult a knowledgeable attorney who can advise you regarding your particular circumstances.