n-08-49.pdf

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Part III. Administrative, Procedural, and Miscellaneous

Public Inspection of Form 990-T, Exempt Organization Business Income Tax Return

Notice 2008-49

Section 1. Purpose
This notice modifies Notice 2007-45, 2007-22 I.R.B. 1320, and provides
additional interim guidance with respect to the requirement under section 6104 of the
Internal Revenue Code (the Code) that section 501(c)(3) organizations make available
for public inspection Forms 990-T, Exempt Organization Business Income Tax Return.
This notice reflects the amendments to sections 6104(b) and 6104(d) of the Code
contained in section 3(g) of the Tax Technical Corrections Act of 2007, Pub. L. 110-172
(H.R. 4839) (the Act). The amendments are effective for Forms 990-T filed with the
Internal Revenue Service (IRS) after August 17, 2006.

Section 2. Background
Prior to the enactment of the Pension Protection Act of 2006, Pub. L. 109-280
(the PPA), organizations exempt from Federal income tax under section 501(a) as
described in section 501(c) of the Code were required to make available for public
inspection and copying only the annual information returns filed by such organizations
under section 6033 (Forms 990, 990-EZ, and 990-PF). The public inspection and

copying requirement with respect to these returns applies for the three-year period
beginning on the last day prescribed for the filing of the returns.
The PPA amended section 6104(d)(1)(A)(ii) to require organizations to make
available for public inspection and copying “any annual return filed under section 6011
which relates to any tax imposed by section 511 (relating to imposition of tax on
unrelated business income of charitable, etc., organizations) by such organization, but
only if such organization is described in section 501(c)(3).” Thus, for section 501(c)(3)
organizations (charities), the PPA extended the public inspection and copying
requirement to Forms 990-T. The PPA was silent regarding whether the public
inspection and copying requirement for Forms 990-T applied only for the three-year
period beginning on the last day prescribed for the filing of the returns.
The IRS issued Notice 2007-45 on May 29, 2007, to provide interim guidance on
the amended section 6104(d) pending the issuance of revised regulations. Notice
2007-45 provides that Forms 990-T filed with the IRS after August 17, 2006, must be
made available for public inspection and copying by all charities, regardless of whether
the charity is otherwise subject to the disclosure requirements of section 6104. Notice
2007-45 also provides that Forms 990-T must be made available for public inspection
and copying in their entirety as filed with the IRS, including all schedules, attachments,
and supporting documents.
On December 29, 2007, the President signed the Act. Section 3(g) of the Act
revised the language of section 6104(d)(1)(A)(ii) to refer to: “any annual return which is
filed under section 6011 by an organization described in section 501(c)(3) and which
relates to any tax imposed by section 511 (relating to imposition of tax on unrelated

business income of charitable, etc., organizations).” (Emphasis added.) As revised,
section 6104(d)(1)(A)(ii) makes clear that charities must make available for public
inspection and copying only those returns and attachments to the return that are both
filed under section 6011 and that relate to the imposition of tax on unrelated business
income of charitable organizations. Section 3(g) of the Act amended section 6104(d)(2)
to require organizations to make Forms 990-T available for public inspection only for the
three-year period following the filing of the return. In addition, section 3(g) of the Act
provided that the IRS, and not just the organization, is required to make Forms 990-T
publicly available pursuant to section 6104(b), and that the IRS must treat Forms 990-T
in the same manner as Forms 990. See
153 Cong. Rec. S16056-03 (Dec. 19, 2007).

Section 3. Modification of Interim Guidance
This notice modifies Notice 2007-45 to incorporate the new provisions from the
Act for section 6104(d). Specifically, Section 3 of Notice 2007-45 is hereby modified as
follows. The guidelines for making annual returns available for public inspection and
copying set forth in Treas. Reg. § 301.6104(d)-1 generally apply except that the
definition of “annual information return” in Treas. Reg. § 301.6104(d)-1(b)(4)(i) includes
an exact copy of the Form 990-T filed by a charity with the IRS after August 17, 2006,
including any schedules, attachments, and supporting documents that relate to the
imposition of tax on the unrelated business income of the charitable organization.
Schedules, attachments, and supporting documents filed with Form 990-T that do not
relate to the imposition of unrelated business income tax are not required to be made
available for public inspection and copying. Such schedules and attachments, for

example, include Form 5471, Information Return of U.S. Persons with Respect to
Certain Foreign Corporations, Form 8886, Reportable Transaction Disclosure
Statement, and Form 8913, Credit for Federal Telephone Excise Tax Paid (generally
this form was used only for tax year 2006). Further guidance with respect to schedules
or attachments that are not required to be made available when attached to Form 990-T
will be provided in forms, instructions and other public announcements.
Further, under the amended section 6104(d)(2), charities must make Forms 990-
T available for public inspection and copying only for the three-year period beginning on
the last day prescribed for filing such return (determined with regard to any extension of
time for filing).
The IRS is now required to make Forms 990-T of section 501(c)(3) organizations
publicly available pursuant to section 6104(b). The procedures for requesting public
inspection or copying of Forms 990-T are set forth in Announcement 2008-21.
All remaining provisions of Notice 2007-45 shall continue in full force and effect.

Section 4. Request for Comments
The IRS and the Treasury Department invite comments on implementation of the
public inspection requirement of section 6104(d)(1)(A)(ii), including comments with
respect to those schedules or attachments that should not be available for public
inspection when attached to Form 990-T. Comments should refer to Notice 2008-49
and be submitted to:

Internal Revenue Service
CC:PA:LPD:PR (Notice 2008-49)
Room 5203

P.O. Box 7604
Ben Franklin Station
Washington, DC 20044

Submissions may be hand delivered Monday through Friday between the hours
of 8 a.m. and 4 p.m. to:
Courier’s Desk
Internal Revenue Service
1111 Constitution Ave., N.W.
Washington, DC 20224
Attn: CC:PA:LPD:PR (Notice 2008-49)

Alternatively, taxpayers may submit comments electronically to
notice.comments@irscounsel.treas.gov
. Please include “Notice 2008-49” in the subject
line of any electronic communications.
All comments will be available for public inspection and copying.

Section 6. Drafting Information
The principal author of this notice is Melinda Williams of the Exempt
Organizations, Tax Exempt and Government Entities Division. For further information
regarding this notice, contact Ms. Williams at 202-283-9467 (not a toll-free call).