Dark Money Darker? IRS Shutters Collection of Donor Data

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Philip Hackney


The IRS recently rescinded a longstanding rule that required certain nonprofits to disclose substantial donor names and addresses on the nonprofit annual information return. This was a mistake. Though the rule remains for charities and political organizations, the collection of this information non-publicly by the IRS is needed to enforce tax-exempt requirements and the tax law generally for social welfare organizations and business leagues. It serves both as a roadmap for audits and as a hindrance to improper transactions. It also is reasonable for the IRS to collect this information to support legal regimes ancillary to the tax law such as state nonprofit law and campaign finance. Tax law prohibits the distribution of earnings from a nonprofit to those who control the organization. Like officers and directors, substantial donors are classic suspects of those who might seek improper private benefits through their control of a nonprofit. But substantial donors, unlike officers and directors, are not public facing. Without substantial donor information, an IRS auditor has no reason to begin to question certain transactions and operations of the nonprofit that accrue to the benefit of a substantial donor that could potentially lead to modification of a claimed tax result. The Supreme Court recently found a similar requirement of the state of California to impose a burden on First Amendment free association rights, and furthermore found that the state failed to show the requirement was narrowly tailored to the governmental interest of protecting citizens from fraud on charity. The Court’s ruling calls into question the constitutionality of the IRS requirement too. However, the Court accepted that the governmental interest associated with tax law might be different from the case made by the California attorney general. This Article does not significantly engage with the question of the constitutionality of this IRS requirement but does suggest the important governmental interest involved. There are important governmental and democratic interests involved beyond the free association rights of substantial donors, namely that the tax, campaign finance and nonprofit law be enforced equally upon all and appear to be enforced equally. The importance of the ability of the government to collect the revenue is significant as well.

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