New York Issues Proposed Donor Disclosure Rule In Wake of AFPF Supreme Court Decision

Early last month New York issued a proposed rule amending the regulations relating charity annual reports to respond to the Supreme Court’s decision in Americans for Prosperity Foundation v. Bonta. See NYS Register (Dec. 1, 2021), at 21-23. As our readers already know, the Court struck down as unconstitutional the California requirement that charities provide to state authorities unredacted copies of Schedule B to the IRS Form 990 series, which lists identifying information for significant donors. New York had a similar requirement, which it suspended in the wake of that decision.

The proposed rule gives “public charities” required to make annual filings (NY Form CHAR500) the option of providing either (1) a copy of Schedule B with the names and addresses of contributors redacted or (2) “a statement of the gross amount of contributions received during the reporting period from individuals and entities residing or domiciled in the state of New York.” Note that the use of the term “public charities” apparently means that private foundations will still be required to submit their unredacted Schedule Bs to New York, presumably because those schedules are already publicly disclosed under federal tax law and so arguably are not reached by the Supreme Court’s decision. The proposed rule also makes various unrelated amendments to the filing requirements.

Lloyd Mayer