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Federal NPO Disclosure and Public Access Laws

Federal Law
Federal Regulations
Legislative History

An easy to read summary of the public disclosure requirements is available elsewhere.


Federal Law

United States Code, Title 26, Section 6104(d)

The current federal law addressing public disclosure of and access to certain tax-exempt organization records was established by the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277; H.R. 4328). The text given below was derived from that Act as published online.

This law will take effect for public charities on June 8, 1999, in accordance with the regulations issued by the Internal Revenue Service (IRS) on April 8, 1999, and for private foundations later in the year when the IRS issues corresponding regulations. Note that not all types of tax-exempt organization are held to the disclosure and public access requirements given by this law, but only those described by IRC 501(c) and 501(d). Note: The Internal Revenue Code (IRC) is Title 26 of the United States Code (USC), e.g. 26 USC 501(c) is IRC 501(c).

The United States Code may also be accessed online through the U.S. House of Representatives Web site or the Cornell Legal Information Institute, but note that these sources may not include the most recent updates to the law as given here.

26 USC 6104(d). Public Inspection of Certain Annual Returns and Applications for Exemption.

(1) In general.--In the case of an organization described in subsection (c) or (d) of section 501 and exempt from taxation under section 501(a)--

(A) a copy of--

(i) the annual return filed under section 6033 (relating to returns by exempt organizations) by such organization, and

(ii) if the organization filed an application for recognition of exemption under section 501, the exempt status application materials of such organization, shall be made available by such organization for inspection during regular business hours by any individual at the principal office of such organization and, if such organization regularly maintains 1 or more regional or district offices having 3 or more employees, at each such regional or district office, and

(B) upon request of an individual made at such principal office or such a regional or district office, a copy of such annual return and exempt status application materials shall be provided to such individual without charge other than a reasonable fee for any reproduction and mailing costs.

The request described in subparagraph (B) must be made in person or in writing. If such request is made in person, such copy shall be provided immediately and, if made in writing, shall be provided within 30 days.

(2) 3-year limitation on inspection of returns.--Paragraph (1) shall apply to an annual return filed under section 6033 only during the 3-year period beginning on the last day prescribed for filing such return (determined with regard to any extension of time for filing).

(3) Exceptions from disclosure requirement.--

(A) Nondisclosure of contributors, etc.--In the case of an organization which is not a private foundation (within the meaning of section 509(a)), paragraph (1) shall not require the disclosure of the name or address of any contributor to the organization. In the case of an organization described in section 501(d), paragraph (1) shall not require the disclosure of the copies referred to in section 6031(b) with respect to such organization.

(B) Nondisclosure of certain other information.--Paragraph (1) shall not require the disclosure of any information if the Secretary withheld such information from public inspection under subsection (a)(1)(D).

(4) Limitation on providing copies.--Paragraph (1)(B) shall not apply to any request if, in accordance with regulations promulgated by the Secretary, the organization has made the requested documents widely available, or the Secretary determines, upon application by an organization, that such request is part of a harassment campaign and that compliance with such request is not in the public interest.

(5) Exempt status application materials.--For purposes of paragraph (1), the term `exempt status application materials' means the application for recognition of exemption under section 501 and any papers submitted in support of such application and any letter or other document issued by the Internal Revenue Service with respect to such application.

NOTES

These notes were added by this page's author to provide clarification. The links below to U.S. federal law lead to the Cornell Legal Information Institute Web site, which may not, however, be completely up to date.

Section 501 of the Internal Revenue Code (IRC 501, which is 26 USC 501) addresses a major class of organizations that are exempt from federal corporate income tax. It grants this exempt status to organizations that qualify under this section, describes what sorts of organizations those are, how they can apply for exempt status, and what they must do to maintain it.

IRC section 501(a) grants tax-exempt status to various organizations described in subsequent subsections, including 501(c) and 501(d).

IRC section 501(c) describes most types of tax-exempt organizations generally referred to as charitable, associations, and societies, as well as several others. Most tax-exempt organizations are exempt under section 501(c), apply for tax-exempt status using either IRS Form 1023 or 1024, and submit annual informational returns from the IRS Form 990 series.

IRC section 501(d) describes "Religious and Apostolic Associations," which submit IRS Form 1065 as their annual return.

IRC section 509(a) defines a "private foundation" as any 501(c)(3) organization that doesn't fit one of several classes. Subsections 509(a)(1)-(4) describe the several classes of what are termed "public charities." A public charity must be either a publicly-supported charity [509(a)(1)], an exempt purpose activities-supported charity [509(a)(2)], an organization that supports one of those [509(a)(3)], or a public safety organization [509(a)(4)].

IRC section 6031(b) refers to certain copies of the 501(d) organization's annual tax return that must be provided to partners in the organization.

IRC section 6033 describes the annual informational returns that must be submitted by most tax-exempt organizations (e.g. Form 990).

IRC section 6104(a)(1)(D) allows the Secretary of the IRS to withhold from public inspection any part of an organization's application for tax-exempt status that "relates to any trade secret, patent, process, style of work, or apparatus, of the organization, if he determines that public disclosure of such information would adversely affect the organization." It requires the Secretary to withhold from public inspection any part that "he determines would adversely affect the national defense."


Federal Regulations

The final regulations implementing IRC 6104(d) for 501(d) and 501(c) organizations other than private foundations were issued by the IRS on April 8th, 1999, and published in the Federal Register the next day. These regulations were issued as modifications to the Code of Federal Regulations (CFR) Title 26, Part 301, Section 6104(d), and will take effect June 8, 1999. They supersede previous public disclosure regulations, including IRS Notice 88-120.

A copy of the final regulations is available here in Web/HTML format. A PDF-format version of the Federal Register pages from which that copy was derived is also available.

A copy of the originally proposed IRS regulations as published in the Federal Register on September 26, 1997 is available here in PDF format.



Legislative History

Historical Summary

The public disclosure and access requirements for tax-exempt organizations has changed significantly during the last decade. The earliest laws and regulations [26 CFR 301.6104(a) and (b)] provided for public access to exempt organizations' annual informational returns and application for tax-exempt status only through the IRS (see IRS Form 4506-A). Access using this mechanism is still supported by the IRS, although reportedly not in a very timely fashion.

Starting in 1988, under regulations issued as Notice 88-120, 1988-2 C.B. 454 to implement provisions of the Omnibus Budget Reconciliation Act of 1987 (Public Law 100-203; Subtitle G, Part I), exempt organizations themselves were required to provide public access, but only to individuals requesting inspection of the materials in person at the organization's offices. Such individuals needed to copy by hand any information from the materials, as they could not remove them from the premises and exempt organizations were not obligated to provide copies. The requirements were discussed in the IRS FY1997 Continuing Professional Education (CPE) Technical Instruction Program document, "Publicity and Disclosure of Form 990."

The public disclosure requirements were significantly expanded by the Taxpayers Bill of Rights 2 (TBOR2) in 1996, which additionally required that 501(c) and 501(d) tax-exempt organizations provide copies of their returns for three years and application for exempt status upon request in person or in writing. An exception would be made only if the organization made its materials "widely available" or if the IRS determined the organization was being subjected to a harassment campaign. Private foundations were excepted from the requirement to provide extended access to their application for tax-exempt status or copies of their returns, instead being only required to allow inspection of returns in person for a short period after their submission. The IRS published in the Federal Register, Vol. 62, No. 187, p. 50533, on September 26, 1997 a set of proposed regulations to implement the public disclosure provisions of TBOR2, as well as a CPE discussion of that proposal.

A technical correction to TBOR2 was made in section 1704(s) of the Small Business Job Protection Act of 1996 (Public Law 104-188). This change increased the IRC 6652(c)(1)(C) and (c)(1)(D) penalties for noncompliance with the disclosure requirement to $20 per day with a maximum of $10,000 per return.

However, the IRS didn't issue the final regulations before the TBOR2 disclosure and access law was struck and replaced under the Tax and Trade Relief Extension Act of 1998 (included in the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999). In that most recent refinement, which became law on October 21, 1998, the broad public disclosure and access requirements of TBOR2 were rewritten (but remain functionally the same) and extended to private foundations. An exception to the requirement for providing copies is provided only for organizations that make their disclosed materials "widely available" (i.e. on the Internet) or who the IRS determines are being subjected to a harassment campaign. The IRS issued the final regulations implementing this law only for public charities on April 8, 1999, and those will go into effect on June 8, 1999.

The IRS has indicated it will release regulations addressing private foundations later in the year. Since Congress specifically removed nearly all distinctions between public charities and private foundations from the law through the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, it isn't obvious how the regulations for private foundations might differ significantly from those already issued for public charities. The only difference in the law is that public charities are not required to disclose their donor list.


Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (incorporated the Tax and Trade Relief Extension Act of 1998)

The public disclosure provisions of the Tax and Trade Relief Extension Act of 1998 (from H.R.4579) were written into law on 10/21/98 as Division J, Section 1004 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Public Law 105-277; H.R. 4328. This Act deleted 26 USC 6104(d) and 6104(e) as introduced by TBOR2, which prescribed the disclosure and public access requirements for private foundations and public charities respectively, and replaced them with a new 26 USC 6104(d) that applies to both. Private foundations had been specifically excepted from the more extensive public access requirement of public charities. Under this new law, both private foundations and public charities must provide expanded public access and copies upon request of their annual informational returns and application for tax-exempt status. The requirements of the new part (d) are functionally identical to the requirements that previously only applied to public charities [the former part (e)]. Public charities (but not private foundations) are not required to disclose the names and addresses of contributors.

H.R. 4328. Section 1004. Contributions of Stock to Private Foundations; Expanded Public Inspection of Private Foundations' Annual Returns.

(a) ... [Addresses gifts of stock to private foundations. Omitted here.] ...

(b) Expanded Public Inspection of Private Foundations' Annual Returns, Etc.--

(1) In general.--Section 6104 (relating to publicity of information required from certain exempt organizations and certain trusts) is amended by striking subsections (d) and (e) and inserting after subsection (c) the following new subsection:

``(d) Public Inspection of Certain Annual Returns and Applications for Exemption.--

``(1) In general.--In the case of an organization described in subsection (c) or (d) of section 501 and exempt from taxation under section 501(a)--

``(A) a copy of--

``(i) the annual return filed under section 6033 (relating to returns by exempt organizations) by such organization, and

``(ii) if the organization filed an application for recognition of exemption under section 501, the exempt status application materials of such organization, shall be made available by such organization for inspection during regular business hours by any individual at the principal office of such organization and, if such organization regularly maintains 1 or more regional or district offices having 3 or more employees, at each such regional or district office, and

``(B) upon request of an individual made at such principal office or such a regional or district office, a copy of such annual return and exempt status application materials shall be provided to such individual without charge other than a reasonable fee for any reproduction and mailing costs.

The request described in subparagraph (B) must be made in person or in writing. If such request is made in person, such copy shall be provided immediately and, if made in writing, shall be provided within 30 days.

``(2) 3-year limitation on inspection of returns.--Paragraph (1) shall apply to an annual return filed under section 6033 only during the 3-year period beginning on the last day prescribed for filing such return (determined with regard to any extension of time for filing).

``(3) Exceptions from disclosure requirement.--

``(A) Nondisclosure of contributors, etc.--In the case of an organization which is not a private foundation (within the meaning of section 509(a)), paragraph (1) shall not require the disclosure of the name or address of any contributor to the organization. In the case of an organization described in section 501(d), paragraph (1) shall not require the disclosure of the copies referred to in section 6031(b) with respect to such organization.

``(B) Nondisclosure of certain other information.--Paragraph (1) shall not require the disclosure of any information if the Secretary withheld such information from public inspection under subsection (a)(1)(D).

``(4) Limitation on providing copies.--Paragraph (1)(B) shall not apply to any request if, in accordance with regulations promulgated by the Secretary, the organization has made the requested documents widely available, or the Secretary determines, upon application by an organization, that such request is part of a harassment campaign and that compliance with such request is not in the public interest.

``(5) Exempt status application materials.--For purposes of paragraph (1), the term `exempt status application materials' means the application for recognition of exemption under section 501 and any papers submitted in support of such application and any letter or other document issued by the Internal Revenue Service with respect to such application.''.

(2) Conforming amendments.--

(A) Subsection (c) of section 6033 is amended by adding ``and'' at the end of paragraph (1), by striking paragraph (2), and by redesignating paragraph (3) as paragraph (2).

(B) Subparagraph (C) of section 6652(c)(1) is amended by striking ``subsection (d) or (e)(1) of section 6104 (relating to public inspection of annual returns)'' and inserting ``section 6104(d) with respect to any annual return''.

(C) Subparagraph (D) of section 6652(c)(1) is amended by striking ``section 6104(e)(2) (relating to public inspection of applications for exemption)'' and inserting ``section 6104(d) with respect to any exempt status application materials (as defined in such section)''.

(D) Section 6685 is amended by striking ``or (e)''.

(E) Section 7207 is amended by striking ``or (e)''.

(3) Effective date.--

(A) In general.--Except as provided in subparagraph (B), the amendments made by this subsection shall apply to requests made after the later of December 31, 1998, or the 60th day after the Secretary of the Treasury first issues the regulations referred to in section 6104(d)(4) of the Internal Revenue Code of 1986, as amended by this section.

(B) Publication of annual returns.--Section 6104(d) of such Code, as in effect before the amendments made by this subsection, shall not apply to any return the due date for which is after the date such amendments take effect under subparagraph (A).


IRC 6104(d) and (e) Before October 21, 1998

The following text presents subsections 26 USC 6104 (d) and (e) before they were struck and replaced under the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 on October 21, 1998. Under this earlier law, which was established by the Taxpayers Bill of Rights 2 in 1996 , public charities would have been required to provide copies of their disclosed materials to the public on request for at least three years, while private foundations were required to allow in-person inspection only and for just 180 days. This law never took effect since the IRS didn't release the associated regulations before these subsections were struck and replaced. The new law extends the more generous disclosure period to include private foundations, and exempts organizations from the requirement to provide copies if they make their disclosed materials "widely available" (e.g. on the Internet). The text of the older law below was obtained from the Cornell Legal Information Institute copy of the United States Code.

26 USC 6104(d). Public inspection of private foundations' annual reports.

The annual return required to be filed under section 6033 (relating to returns by exempt organizations) by any organization which is a private foundation within the meaning of section 509(a) shall be made available by the foundation managers for inspection at the principal office of the foundation during regular business hours by any citizen on request made within 180 days after the date of the publication of notice of its availability. Such notice shall be published, not later than the day prescribed for filing such annual return (determined with regard to any extension of time for filing), in a newspaper having general circulation in the county in which the principal office of the private foundation is located. The notice shall state that the annual return of the private foundation is available at its principal office for inspection during regular business hours by any citizen who requests it within 180 days after the date of such publication, and shall state the address and the telephone number of the private foundation's principal office and the name of its principal manager.

26 USC 6104(e). Public inspection of certain annual returns and applications for exemption.

(1) Annual returns.

(A) In general.

During the 3-year period beginning on the filing date -

(i) a copy of the annual return filed under section 6033 (relating to returns by exempt organizations) by any organization to which this paragraph applies shall be made available by such organization for inspection during regular business hours by any individual at the principal office of such organization and, if such organization regularly maintains 1 or more regional or district offices having 3 or more employees, at each such regional or district office, and

(ii) upon request of an individual made at such principal office or such a regional or district office, a copy of such annual return shall be provided to such individual without charge other than a reasonable fee for any reproduction and mailing costs.

The request described in clause (ii) must be made in person or in writing. If the request under clause (ii) is made in person, such copy shall be provided immediately and, if made in writing, shall be provided within 30 days.

(B) Organizations to which paragraph applies.

This paragraph shall apply to any organization which -

(i) is described in subsection (c) or (d) of section 501 and exempt from taxation under section 501(a), and

(ii) is not a private foundation (within the meaning of section 509(a)).

(C) Nondisclosure of contributors.

Subparagraph (A) shall not require the disclosure of the name or address of any contributor to the organization.

(D) Filing date.

For purposes of subparagraph (A), the term ''filing date'' means the last day prescribed for filing the return under section 6033 (determined with regard to any extension of time for filing).

(2) Application for exemption.

(A) In general.

If -

(i) an organization described in subsection (c) or (d) of section 501 is exempt from taxation under section 501(a), and

(ii) such organization filed an application for recognition of exemption under section 501,

a copy of such application (together with a copy of any papers submitted in support of such application and any letter or other document issued by the Internal Revenue Service with respect to such application) shall be made available by the organization for inspection during regular business hours by any individual at the principal office of the organization and, if the organization regularly maintains 1 or more regional or district offices having 3 or more employees, at each such regional or district office (and, upon request of an individual made at such principal office or such a regional or district office, a copy of the material requested to be available for inspection under this subparagraph shall be provided (in accordance with the last sentence of paragraph (1)(A)) to such individual without charge other than reasonable fee for any reproduction and mailing costs).

(B) Nondisclosure of certain information.

Subparagraph (A) shall not require the disclosure of any information if the Secretary withheld such information from public inspection under subsection (a)(1)(D).

(3) Limitation.

Paragraph (1)(A)(ii) (and the corresponding provision of paragraph (2)) shall not apply to any request if, in accordance with regulations promulgated by the Secretary, the organization has made the requested documents widely available, or, the Secretary determines, upon application by an organization, that such request is part of a harassment campaign and that compliance with such request is not in the public interest.


Taxpayers Bill of Rights 2 (1996)

Section 1313 of the Taxpayers Bill of Rights 2 (Public Law 104-168, H.R. 2337), enacted July 30, 1996, modified the existing exempt organization public disclosure law (26 USC 6104) by adding a requirement that tax-exempt organizations provide copies of certain records upon request, and increased a fine for failure to comply. Before this law, exempt organizations were required only to allow inspection by individuals making the request in person at the organization's office (under IRS Notice 88-120 and the Omnibus Budget Reconciliation Act of 1987 it implemented).

Note: A technical correction to this law was made in section 1704(s) of the Small Business Job Protection Act of 1996. This change increased the IRC 6652(c)(1)(C) and (c)(1)(D) penalties for noncompliance to $20 per day with a maximum of $10,000 per return.

H.R. 2337. SECTION 1313. EXEMPT ORGANIZATIONS REQUIRED TO PROVIDE COPY OF RETURN.

(a) REQUIREMENT TO PROVIDE COPY. -

(1) Subparagraph (A) of section 6104(e)(1) (relating to public inspection of annual returns) is amended to read as follows:

''(A) IN GENERAL. - During the 3-year period beginning on the filing date -

''(i) a copy of the annual return filed under section 6033 (relating to returns by exempt organizations) by any organization to which this paragraph applies shall be made available by such organization for inspection during regular business hours by any individual at the principal office of such organization and, if such organization regularly maintains 1 or more regional or district offices having 3 or more employees, at each such regional or district office, and

''(ii) upon request of an individual made at such principal office or such a regional or district office, a copy of such annual return shall be provided to such individual without charge other than a reasonable fee for any reproduction and mailing costs. The request described in clause (ii) must be made in person or in writing. If the request under clause (ii) is made in person, such copy shall be provided immediately and, if made in writing, shall be provided within 30 days.''.

(2) Clause (ii) of section 6104(e)(2)(A) is amended by inserting before the period at the end the following: ''(and, upon request of an individual made at such principal office or such a regional or district office, a copy of the material requested to be available for inspection under this subparagraph shall be provided (in accordance with the last sentence of paragraph (1)(A)) to such individual without charge other than reasonable fee for any reproduction and mailing costs)''.

(3) Subsection (e) of section 6104 is amended by adding at the end the following new paragraph:

''(3) LIMITATION. - Paragraph (1)(A)(ii) (and the corresponding provision of paragraph (2)) shall not apply to any request if, in accordance with regulations promulgated by the Secretary, the organization has made the requested documents widely available, or, the Secretary determines, upon application by an organization, that such request is part of a harassment campaign and that compliance with such request is not in the public interest.''.

(b) INCREASE IN PENALTY FOR WILLFUL FAILURE TO ALLOW PUBLIC INSPECTION OF CERTAIN RETURNS, ETC. - Section 6685 is amended by striking ''$1,000'' and inserting ''$5,000''.

(c) EFFECTIVE DATE. - The amendments made by this section shall apply to requests made on or after the 60th day after the Secretary of the Treasury first issues the regulations referred to section 6104(e)(3) of the Internal Revenue Code of 1986 (as added by subsection (a)(3)).


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