Q. Public Inspection Requirements

A private foundation must make its annual returns and exemption application available for public inspection.

Definitions

Annual returns. An annual return is an exact copy of the Form 990-PF that was filed with the IRS including all schedules, attachments, and supporting documents. It also includes any amendments to the original return (amended return).

By annual returns, we mean any annual return (defined above) that is not more than 3 years old from the later of:

1. The date the return is required to be filed (including extensions) or
2. The date that the return is actually filed.

Exemption application is an application for tax exemption and includes (except as described later):

• Any prescribed application form (such as Form 1023 or Form 1024),
• All documents and statements the IRS requires an applicant to file with the form,
• Any statement or other supporting document submitted in support of the application, and
• Any letter or other document issued by the IRS concerning the application.

An application for tax exemption does not include:

• Any application for tax exemption filed before July 15, 1987, unless the private foundation filing the application had a copy of the application on July 15, 1987, or
• Any material that is not available for public inspection under section 6104.

Who Must Make the Annual Returns and Exemption Application Available for Public Inspection?

The foundation's annual returns and exemption application must be made available to the public by the private foundation itself and by the IRS.

How Does a Private Foundation Make Its Annual Returns and Exemption Application Available for Public Inspection?

A private foundation must make its annual returns and exemption application available in 2 ways:

1. By office visitation and
2. By providing copies or making them widely available.

Public Inspection by Office Visitation

A private foundation must make its annual returns and exemption application available for public inspection without charge at its principal, regional, and district offices during regular business hours.

Conditions that may be set for public inspection at the office. A private foundation:

• May have an employee present,
• Must allow the individual conducting the inspection to take notes freely during the inspection, and
• Must allow an individual to make photo copies of documents at no charge but only if the individual brings photocopying equipment to the place of inspection.

Determining if a site is a regional or district office. A regional or district office is any office of a private foundation, other than its principal office, that has paid employees whose total number of paid hours a week are normally 120 hours or more. Include the hours worked by part-time (as well as fulltime) employees in making that determination.

What sites are not considered a regional or district office. A site is not considered a regional or district office if:

1. The only services provided at the site further the foundations exempt purposes (e.g., day care, health care, or scientific or medical research) and
2. The site does not serve as an office for management staff, other than managers who are involved only in managing the exempt function activities at the site.

What if the private foundation does not maintain a permanent office? If the private foundation does not maintain a permanent office, it will comply with the public inspection by office visitation requirement by making the annual returns and exemption application available at a reasonable location of its choice. It must permit public inspection:

• Within a reasonable amount of time after receiving a request for inspection (normally, not more than 2 weeks) and
• At a reasonable time of day.

Optional method of complying. If a private foundation that does not have a permanent office wishes not to allow an inspection by office visitation, it may mail a copy of the requested documents instead of allowing an inspection. However, it must mail the documents within 2 weeks of receiving the request and may charge for copying and postage only if the requester consents to the charge.

Private foundations with a permanent office but limited or no hours. Even if a private foundation has a permanent office but no office hours or very limited hours during certain times of the year, it must still meet the office visitation requirement. During those periods when office hours are limited or not available, follow the rules above under What if the private foundation does not maintain a permanent office? to meet this requirement.

Public Inspection - Providing Copies

A private foundation must provide copies of its annual returns or exemption application to any individual who makes a request for a copy in person or in writing unless it makes these documents widely available.

In-person requests for document copies. A private foundation must provide copies to any individual who makes a request in person at the private foundation's principal, regional, or district offices during regular business hours on the same day that the individual makes the request.

Accepted delay in fulfilling an in-person request. If unusual circumstances exist and fulfilling a request on the same day places an unreasonable burden on the private foundation, it must provide copies by the earlier of:

• The next business day following the day that the unsusal circumstances end or
• The fifth business day after the date of the request.

Examples of unusual circumstances include:

• Receipt of a volume of requests (for document copies) that exceeds the private foundations daily capacity to make copies,
• Requests received shortly before the end of regular business hours that require an extensive amount of copying, or
• Requests received on a day when the organization's managerial staff capable of fulfilling the request is conducting official duties (e.g., student registration or attending an offsite meeting or convention) instead of its regular administrative duties.

Use of local agents for providing copies. A private foundation may use a local agent to handle in-person requests for document copies. If a private foundation uses a local agent, it must immediately provide the local agent's name, address, and telephone number to the requester.

The local agent must:

• Be located within reasonable proximity to the principal, regional, or district office where the individual makes the request and
• Provide document copies within the same time frames as the private foundation.

Written requests for document copies. If a private foundation receives a written request for a copy of its annual returns or exemption application (or parts of these documents), it must give a copy to the requester. However, this rule only applies if the request:

• Is addressed to a private foundation's principal, regional, or district office,
• Is delivered to that address by mail, electronic mail (e-mail), facsimile (fax), or a private delivery service approved by the IRS (see Where To File in the Instructions for Form 990-T for a list), and
• Gives the address to which the document copies should be sent.

How and when a written request is fulfilled.

• Requested document copies must be mailed in 30 days from the date the private foundation receives the request.
• Unless other evidence exists, a request or payment that is mailed is considered to be received by the private foundation 7 days after the postmark date.
• If an advance payment is required, copies must be provided in 30 days from the date payment is received.
• If the private foundation requires payment in advance and it receives a request without payment or with insufficient payment, it must notify the requester of the prepayment policy and the amount due within 7 days from the date it receives the request.
• A request that is transmitted to the private foundation by e-mail or fax is considered received the day the request is transmitted successfully.
• Requested documents can be e-mailed instead of the traditional method of mailing if the requester consents to this method.

A document copy is considered as provided on the:

• Postmark date,
• Private delivery date,
• Registration date for certified or registered mail,
• Postmark date on the sender's receipt for certified or registered mail, or
• Day the e-mail is successfuly transmitted (if the requester agreed to this method).

Requests for parts of a document copy. A person can request all or any specific part or schedule of the annual returns or exemption application and the private foundation must fulfill their request for a copy.

Can an agent be used to provide copies? A private foundation can use an agent to provide document copies for the written requests it receives. However, the agent must provide the document copies under the same conditions that are imposed on the private foundation itself. Also, if an agent fails to provide the documents as required, the private foundation will continue to be subject to penalties.

Example. The ABC Foundation retained an agent to provide copies for all written requests for documents. However, ABC Foundation received a request for document copies before the agent did.

The deadline for providing a response is referenced by the date that the ABC Foundation received the request and not when the agent received it. If the agent received the request first, then a response would be referenced to the date that the agent received it.

Can a fee be charged for providing copies? A private foundation may charge a reasonable fee for providing copies. Also, it can require the fee to be paid before providing a copy of the requested document.

What is a reasonable fee? A fee is reasonable only if it is no more than the per-page copying fee charged by the IRS for providing copies, plus no more than the actual postage costs incurred to provide the copies.

What forms of payment must the private foundation accept? The form of payment depends on whether the request for copies is made in person or in writing.

Cash and money order must be accepted for in-person requests for document copies. The private foundation, if it wishes, may accept additional forms of payment.

Certified check, money order, and either personal check or credit card must be accepted for written requests for document copies. The private foundation, if it wishes, may accept additional forms of payment.

Other fee information. If a private foundation provides a requester with notice of a fee and the requester does not pay the fee in 30 days, it may ignore the request.

If a requester's check does not clear on deposit, it may ignore the request.

If a private foundation does not require prepayment and the requester does not prepay, the private foundation must receive consent from the requester if the copying and postage charge exceeds $20.

Private foundations subject to a harrassment campaign. If the IRS determines that a private foundation is being harrassed, it is not required to comply with any request for copies that it reasonably believes is part of the harrassment campaign.

A group of requests for a private foundation's annual returns or exemption application is indicative of a harrassment campaign if the requests are part of a single coordinated effort to disrupt the operations of the private foundation rather than to collect information about it.

See Regulations section 301.6104(d)-3 for more information.

Requests that may be disregarded without IRS approval. A private foundation may disregard any request for copies of all or part of any document beyond the first two received within any 30-day period or the first four received within any 1-year period from the same individual or the same address.

Making the Annual Returns and Exemption Application Widely Available

A private foundation does not have to provide copies of its annual returns and/or its exemption application if it makes these documents widely available. However, it must still allow public inspection by office visitation.

How does a private foundation make its annual returns and exemption application widely available? A private foundation's annual returns and/or exemption application is widely available if it meets all four of the following requirements:

1. The internet posting requirement - This is met if:
   • The document is posted on a World Wide Web page that the private foundation establishes and maintains or
   • The document is posted as part of a database of like documents of other tax-exempt organizations on a World Wide Web page established and maintained by another entity.
2. Additional posting information requirement - This is met if:
   • The World Wide Web page through which the document is available clearly informs readers that the document is available and provides instructions for downloading the document;
   • After it is downloaded and viewed, the web document exactly reproduces the image of the annual returns or exemption application as it was originally filed with the IRS, except for any information permitted by statute to be withheld from public disclosure; and
   • Any individual with access to the Internet can access, download, view, and print the document without special computer hardware or software required for that format (except software that is readily available to members of the public without payment of any fee) and without payment of a fee to the private foundation or to another entity maintaining the web page.
3. Reliability and accuracy requirements - To meet this, the entity maintaining the World Wide Web page must:
   • Have procedures for ensuring the reliability and accuracy of the document that it posts on the page;
   • Take reasonable precautions to prevent alteration, destruction, or accidental loss of the document when posted on its page; and
   • Correct or replace the document if a posted document is altered, destroyed, or lost.
4. Notice requirement - To meet this, a private foundation must notify any individual requesting a copy of its annual returns and/or exemption application where the documents are available (including the Internet address). If the request is made in person, the private foundation must notify the individual immediately. If the request is in writing, it must notify the individual within 7 days of receiving the request.

Penalties

A penalty may be imposed on any person who does not make the annual returns (including all required attachments to each return) or the exemption application available for public inspection according to the section 6104(d) rules discussed above. If more than one person fails to comply, each person is jointly and severally liable for the full amount of the penalty. The penalty amount is $20 for each day during which a failure occurs. The maximum penalty that may be imposed on all persons for any 1 annual return is $10,000. There is no maximum penalty amount for failure to make the exemption application available for public inspection.

Any person who willfully fails to comply with the section 6104(d) public inspection requirements is subject to an additional penalty of $5,000 (section 6685).

Requirements Placed on the IRS

A private foundation's annual returns and approved exemption application may be inspected by the public at an IRS office for your area or at the IRS National Office in Washington, DC.

To request a copy or to inspect an annual return or an approved exemption application, complete Form 4506-A. Generally, there is a charge for photocopying.

Also, the IRS can provide a complete set of Form 990-PF returns filed for a year on CD-ROM. A partial set of Form 990-PF returns filed by state or by month is also available. Call 1-877-829-5500 or write to the address below for details. Internal Revenue Service Customer Service - TE/GE P.O. Box 2508, Rm. 2023 Cincinnati, OH 45201

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