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Update - Suspension of IRS Form 990 Schedule B Disclosure Rules by NYS AG

Updated: Sep 7, 2023

On July 29, 2021, the Office of the New York State (NYS) Attorney General (AG), Charities Bureau announced suspension of the IRS Form 990 Schedule B disclosure requirement by tax-exempt organizations as part of Form CHAR500 filing required under NYS charitable solicitation laws, Exec. L. Article 7-A (or "Announcement"). The Announcement follows the July 1, 2021, Supreme Court decision (or "SCOTUS") in Americans for Prosperity v. Bonta, 594 U.S. __ (2021), in which the Supreme Court struck down a similar disclosure rule under California law. Schedule B, filed as part of IRS Form 990, generally requires certain tax-exempt organizations, including charities exempt under section 501(c)(3) of the Internal Revenue Code of 1986, as amended ("Code") or Code section 501(c)(4) political organizations to provide the names and addresses, total contributions, and types of contributions of contributors who donate the greater of $5,000 or 2% of total contributions in a tax year ("substantial contributors").

The July 29, 2021 guidance is a pronouncement by NYS AG Office that it will no longer collect, rather than post online, any Schedules B, pending review of the SCOTUS decision and its impact on enforceability of the NYS Schedule B disclosure requirement. The notice also provides that NYS AG will not challenge any Form CHAR500 filed without substantial contributor data. Thus, any Form CHAR500 filed previously or from July 29, 2021 without a Schedule B or with a redacted Schedule B will still be deemed compliant, pending AG review of the SCOTUS ruling.

Importantly, the Announcement is silent on whether or not AG will continue to post Schedule B online, whether or not in redacted form, which already has been filed as part of a CHAR500 prior to 07/29. Therefore, tax-exempt organizations subject to the Schedule B disclosure rules under Exec. L. Article 7-A and accompanying NYS Department of State regulations do not have to submit any Schedules B presently as part of Form CHAR500, whether or not in redacted form. Simultaneously, charities should continue to monitor NYS AG guidance regarding enforcement of the Schedule B requirement, and consult with counsel regarding any further changes to the Schedule B substantial contributor disclosure.


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