Section 6104(d)(1)(B) provides a right to taxpayers to request the application for tax exemption and annual informational returns for the last three years of any organization described in Section 501(c) or (d) and exempt from taxation under Sections 501(a) or 527(a). That covers both public charities and private foundations exempt under Section 501(c)(3), as well as other types of tax-exempt organizations.

Reg. § 301.6104(d)-1(d)(2) provides such tax-exempt entities must honor a written request for the documents required to be provided under Section 6104(d) provided the request (a) is addressed to, and delivered by mail, electronic mail, facsimile, or provide delivery service to a principal, regional, or district office of the organization, and (b) sets forth the address to which the copy of the documents should be sent. The charity, pursuant to Reg. § 301.6104(d)-1(d)(3), may require a reasonable fee for providing such copies. Pursuant to Reg. § 301.6104(d)-1(d)(2)(ii)(A), the charity must send the documents within 30 days of the date it receives the request or, if the charity requires payment in advance for the costs associated, 30 days from the date it receives such payment. If the individual making the request consents, the tax-exempt organization may provide the requested document exclusively by electronic mail.

Reg. § 301.6104(d)-1(b)(3) clarifies the application for tax exemption refers to Forms 1023 or 1024 together with all documents and statements the IRS requires an applicant to file any statement or other supporting documents submitted, and any letter or other document issued by the IRS concerning the application. Reg. § 301.6104(d)-1(b)(4) clarifies that the annual informational returns of the tax-exempt organization refers to Forms 990, 990-PF, or any other version of Form 990 together with Form 1065 (if applicable). Each copy of a return must include all information furnished to the IRS on such return as well as all schedules, attachments and supporting documents except for Schedules A of certain Forms 990, Schedules K-1 of Forms 1065, and the names and addresses of contributors of certain organizations (as more particularly described in Reg. § 301.6104(d)-1(b)(4)(ii)).

Reg. § 301.6104(d)-1(g) provides if the tax-exempt organization fails to provide the copies upon request, the requesting taxpayer can alert the IRS by providing a statement to the district director for the key district in which the tax-exempt organization’s principal office is located that describes why the individual believes the denial was in violation of the requirements of Section 6104(d). The tax-exempt organization may be subject to the assessment of penalties by the IRS.

Reg. § 301.6104(d)-3 provides a tax-exempt organization may ignore certain requests, however, if they are determined to be part of a harassment campaign, and compliance with such requests would not be in the public interest. Harassment is defined in such regulation as requests that represent a single coordinated effort to disrupt the operations of a tax-exempt organization rather than to collect information about the organization. Such determination of a harassment campaign must be made by the district director for the applicable key district. However, per Reg. § 301.6104(d)-3(c), a tax-exempt organization may nonetheless (without the need for district director approval) disregard any request for copies beyond the first two received within any 30-day period or the first four received within any one-year period from the same individual or the same address.

John G. Hodnette is an attorney with Johnston, Allison & Hord in Charlotte.

March 16, 2023/by TAX