A&A: Requesting tax information from a non-profit organization

Q: I am a reporter currently working on a series of articles on a local nonprofit. I know that as a 501(c)3 nonprofits have to file financial information with the IRS and are required to show the 990 form to anyone who asks.

As a journalist and member of the public, can I request financial information from the most recently ended fiscal year (which would be included in the 990 form due soon to the IRS)?

Also, the nonprofit is currently out of date with their required IRS filings. Can I request the information that should have filed publicly?

Any advice would be greatly appreciated.

A: The federal statute that you refer to requires that “The information required to be furnished by sections 6033, 6034, and 6058 … together with the names and addresses of such organizations and trusts, shall be made available to the public at such times and in such places as the Secretary may prescribe.” See 26 U.S.C. section 6104(b).

The related Code of Federal Regulation requires:
Except as otherwise provided in this section, if a tax-exempt organization (as defined in paragraph (b)(1) of this section) filed an application for recognition of exemption under section 501 [26 USCS § 501], it shall make its application for tax exemption (as defined in paragraph (b)(3) of this section) available for public inspection without charge at its principal, regional and district offices during regular business hours.

Except as otherwise provided in this section, a tax-exempt organization shall make its annual information returns (as defined in paragraph (b)(4) of this section) available for public inspection without charge in the same offices during regular business hours.

Each annual information return shall be made available for a period of three years beginning on the date the return is required to be filed (determined with regard to any extension of time for filing) or is actually filed, whichever is later.

In addition, except as provided in §§ 301.6104(d)-2 and 301.6104(d)-3, an organization shall provide a copy without charge, other than a reasonable fee for reproduction and actual postage costs, of all or any part of any application or return required to be made available for public inspection under this paragraph to any individual who makes a request for such copy in person or in writing. See paragraph (d)(3) of this section for rules relating to fees for copies.
26 CFR 6104(d)-1.

Although the U.S. code section above refers to information, and not the returns themselves, that must be made available to the public, the Code of Federal Regulation specifies that a tax-exempt organization “shall make its annual information returns … available for public inspection.”

Unfortunately, I could not find any caselaw discussing whether such information would be required to be released even if it is not yet officially contained in a tax return.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.