Disclosure Requirements for Charities

 

Lisa Nachmias Davis

Davis O'Sullivan & Priest LLC

129 Church Street - Suite 805

New Haven, CT 06510

Phone 203-776-4400

Fax 203-774-1060

davis@sharinglaw.net

www.sharinglaw.net

 

Section 6104 of the Internal Revenue Code requires tax-exempt organizations to disclose their annual informational returns (990 or 990PF) and (in most cases) exemption applications to the public upon request and to provide copies of them if asked, or otherwise make them available for public inspection. Final regulations, issued in 1999, impose penalties for failure to comply with this obligation. The regulations are published at Title 26 of the Code of Federal Regulations, Section 301.6104(d)-3. State law contains rules relating to other corporate documents. This article summarizes what must be disclosed or copied, how to satisfy the requirement through publication, and the consequences of noncompliance.

 

(1) Documents required to be disclosed:

 

$       Application for recognition of tax exemption and supporting documents. This includes any letter or other document issued by the Internal Revenue Service concerning the application (such as a favorable determination letter or a list of questions from the Internal Revenue Service about the application). If no form of application is required, the "application" means the letter to the IRS and supporting documents

 

$       Exemption: (1) pending applications; (2) any application for tax exemption filed before July 15, 1987, unless the organization filing the application had a copy of the application on July 15, 1987.

 

$       Three years of annual information returns with all supporting documents and schedules, including amendments. Returns covered are Forms 990, 990PF, 990-EZ, 990-BL, and Form 1065. A central or parent organization with a group exemption may be required to produce documents related to subordinate or satellites; those offices are also subject to less stringent disclosure requirements.

 

$       Exemptions: (1) parts of the return that identify names and addresses of contributors to the organization, but this exemption does not apply to Form 990PF, the return filed by private foundations; (2) Form 990-T; (3) K-1 of religious or apostolic organizations described in section 501(d)

 

(2) Where Must Documents Be "Publicly Available"

 

$       Must be made available at organization's principal office and at certain regional or district offices.

 

$       Exception for "service providers": if not the organization's principal office, documents are not required to be available at offices "where the only services provided further exempt purposes (such as day care, health care or scientific or medical research)."

 

(3) Requirement to Provide Copies.

 

$       Copying Charges Permitted. Organizations must comply with requests, made either in person or in writing, for copies of this information, which must be fulfilled without charge, other than a reasonable fee for reproduction and postage. "Reasonable fee" is defined by regulation to mean the amount the IRS charges per page, which is currently $1.00 for the first page and $0.15 for each subsequent page plus actual postage costs. An organization must receive consent from a requester before providing copies for which the fee charged for copying and postage is in excess of $20.

 

$       Time Limits. If the request for copies is made in person, the organization generally must provide the requested copies immediately. In unusual circumstances, the organization may delay until the next business day following day the unusual circumstances "cease to exist," but in no event more than five days. (Presumably, an example would be that the photocopier is broken or the office is locked.) If the request for copies is made in writing, the organization must provide the copies within 30 days.

 

$       Harassment Campaign Exemption. Section 6104(d) exempts organizations from disclosure if the disclosure requests are part of a "campaign of harassment." The regulations require an organization to file an application for a "harassment determination" within 10 days after suspending compliance with the regulations. However, no application is needed to reject requests for information of more than two per month or four per year by a single individual or from a single address.

 

(4) Internet Publication Exception.

 

$       Copying and disclosure are excused if the organization has made the requested documents "widely available" through publication on the Internet, which currently means, in PDF format. The IRS requires that "the format must allow any individual with access to the Internet to access, download, view and print the posted document without payment of a fee to either the tax‑exempt organization or the entity maintaining the World Wide Web page and without special computer hardware or software required for that format, other than software that is readily available to members of the public free of charge."

$       Currently, the website www.guidestar.org publishes all 990 returns filed with the IRS, whether or not requested by the filer.

 

(5) Enforcement and penalties.

 

$       How Much: The penalty for failure to make disclosure of annual returns is $20 for each day during which such failure continues, with a maximum penalty (for failures with respect to any 1 return) not to exceed $10,000. The penalty for failure to make disclosure of exemption applications is $20 for each day -- with no ceiling. Exception: if failure to disclose is shown to be due to reasonable cause.

 

$       Who Pays: The penalty is paid by the responsible person, not the organization; defined as "any officer, director, trustee, employee, or other individual who is under a duty to perform the act in respect of which the violation occurs." However, Connecticut law requires that the organization must indemnify any director or officer in cases in which "(1) the individual conducted himself or herself in good faith; and (2) the individual reasonably believed (A) in the case of conduct in an official capacity with the corporation, that the conduct was in the corporation's best interests, and (B) in all other cases, that the conduct was at least not opposed to its best interests; and (3) in the case of a criminal proceeding, the individual had no reasonable cause to believe the conduct was unlawful." Conn. Gen. Stat. sections 33‑1117, 33-1122(1).

 

$       How Imposed: If the person who is denied copies or access provides to the IRS district director "for the key district in which the applicable tax‑exempt organization's principal office is located (or such other person as the Commissioner may designate)," and that "describes the reason why the individual believes the denial was in violation," the penalties may be imposed.

 

(6) Rules for Corporate Documents.

 

        For the Public? The IRS rules do not expressly require that corporate documents be made available to the public. Of course, most corporate "articles" or "certificates" of incorporation are available to the public for copying from the state Secretary of State. By contrast, bylaws are not published and not covered by the IRS rules. However, organizations are required to attach their bylaws to any application for exemption and if they are later revised, are required to file them with the IRS. If not filed separately, this means that they may be required to be attached to a Form 990 and if that is the case, they will be publicly available.

 

$       For Members. Connecticut law also expressly requires a membership list to be available for inspection by members at its "principal office" beginning two days after notice of the meeting, and continuously until the meeting, for any meeting which will require a member vote.

$       In General. Connecticut law also requires that the following corporate records be maintained at the "principal office": (1) certificate of incorporation or restated certificate of incorporation and all amendments to it currently in effect; (2) its bylaws or restated bylaws and all amendments to them currently in effect; (3) the minutes of all members' meetings, if any, and records of all action taken by members, if any, without a meeting for the past three years; (4) the financial statements prepared for the past three years; (5) a list of the names and business addresses of its current directors and officers; and (6) its most recent annual report delivered to the Secretary of the State.



For further information, contact

Lisa Nachmias Davis
Davis O'Sullivan & Priest LLC

129 Church Street, Suite 805

New Haven, CT 06510

203-776-4400

fax 203-774-1060

davis@sharinglaw.net

www.sharinglaw.net