In addition to a host of other regulations, organizations exempt from federal income tax under internal revenue code section 501(a) and described in section 501(c) (we’ll call them “501(c) Organizations”), which covers the vast majority of what are commonly referred to as “nonprofit” organizations, are required to make certain documents available for public inspection, and even provide copies of those documents if requested. Below is a list of some of the most frequently asked questions and, of course, the answers.

What documents am I required to make available to the public?

501(c) Organizations must make available for public inspection, upon request and without charge, a copy of their original and amended annual information returns for a three-year period. An “annual information return” includes an exact copy of form 990, 990-EZ, 990-PF, 990-T[1], 990-BL and/or 1065, along with any and all schedules, attachments and any supporting documentation filed with the IRS. Except for private foundations, 501(c) Organizations are not required to disclose the name and address of any contributor to the organization. Importantly, this public inspection requirement goes beyond just providing a copy of a return when it’s requested or posting a copy of your return on your organization’s website. It literally means that if someone shows up in your organization’s office requesting your annual information return that you need to provide it to them.

What exactly is meant by “three-year period”?

An original return doesn’t have to be made available if more than 3 years have passed from the date the return was required to be filed (including any extensions) or was filed, whichever is later. Here’s an example. Organization A is calendar year filer.  Its 2018 990 was due on May 15, 2019, but it filed an extension that extended the due date through November 15, 2019. The return was ultimately filed on June 30, 2019. Even though the return was filed on June 30, since it wasn’t required to be filed until November 15, 2019, Organization A will have to make its 990 available for public inspection until November 15, 2022. If Organization A had filed its return on November 20, 2019 (oh no, it’s late!) the return would need to be made available until November 20, 2022. If Organization A hadn’t filed an extension and filed its return on May 15, 2019 the return would need to be made available until May 15, 2022.

When do I have to make the information available?

If you have a permanent office, you’ll generally have to make the information available to the requester the same day. If you don’t have a permanent office, you’ll need to make the documents available for inspection at (1) a reasonable location of your choice, (2) within a reasonable amount of time after receiving the request (normally not more than 2 weeks) and (3) at a reasonable time of day. In lieu of making those arrangements for a public inspection, though, you may, within 2 weeks of receiving the request, mail a copy of the document(s) to the requester instead. You may charge the requester for copying and actual postage costs only if the requester consents to the charge.

An organization that has a permanent office but has no office hours or very limited hours during certain times of the year, must make its documents available during those periods when office hours are limited or not available as though it were an organization without a permanent office.

Are any other documents besides the 990 required to be made available for public inspection?

A 501(c) Organization must also make available for public inspection without charge its application for tax-exempt status. An application for tax exemption includes the application form (such as Forms 1023, 1023-EZ or 1024), all documents and statements the IRS requires the organization to file with the form, any statement or other supporting document submitted by an organization in support of its application, and any letter or other document issued by the IRS concerning the application (think determination letter). If you’ve been around a long time you may have an out on this, though. If the organization filed its application for exemption before July 15, 1987 and didn’t have a copy of the application on July 15, 1987, it isn’t required to comply with this requirement. Additionally, certain information may be withheld from public inspection, including trade secrets, national defense material, and certain communications from the IRS related to an application for exemption. For a complete list of materials required to be withheld, see IRS publication 557.

What if the requester wants copies? Do I have to provide them?

You must provide a copy of the requested document(s) to anyone who requests a copy either in person or in writing at its principal, regional, or district office during regular business hours. If the request was made in person, the copy must be provided on the same business day the request is made unless there are unusual circumstances. If the request was made in writing (which includes e-mail, fax and courier), you must mail the information within 30 days of receiving the request. You may charge a reasonable fee for providing the copies, which can’t be more than the per page rate the IRS charges. If you charge a fee for the copies you must notify the requester of the approximate cost and acceptable form of payment within seven days of receipt of the request. Acceptable forms of payment must include cash and money order for an in-person request, and certified check, money order and personal check or credit card for a written request.

An exempt organization doesn’t have to comply with requests for copies of its annual information returns or exemption application if it makes them “widely available”. The easiest way to comply with the “widely available” rule is to make the document(s) available for download on the organization’s website. Remember, though, that making these documents widely available only satisfies a request for copies – it doesn’t relieve the organization from making its documents available for public inspection.

What if we don’t have the documents requested?

If you don’t have the documents you’ll need to get them, though chances are you won’t get them in time to comply with the regulations. Copies may be obtained from the IRS by completing IRS form 4506-A.

What are penalties for noncompliance?

Penalties can be significant. The penalty for failure to allow public inspection of annual returns is $20 for each day the failure continues. The maximum penalty on all persons for failures involving any one return is $10,000. The penalty for failure to allow public inspection of exemption applications is $20 for each day the failure continues, but there is no maximum penalty.

The penalty for willful failure to allow public inspection of a return or exemption application is $5,000 for each return or application. The penalty also applies to a willful failure to provide copies.

 

[1] Public inspection of the form 990-T applies to 501(c)(3) organizations only.