Establishing and Running A Nonprofit
Nonprofit Law and Consultation
Amy Hereford – JD, JCD/PhD
6400 Minnesota Ave – Saint Louis, MO 63111
314-972-4763 – amyhereford@gmail.com
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Introduction
Research and Planning
Assemble Resources
Establish Legal Foundations
Establish Financial Systems
Establish Compliance Systems
Establish Communications & Development
Find a Site and Begin Operations
Business Plan – Executive Summary
Business Plan
The Mission Statement
Important dates in beginning the business
Names and roles of founders, key employees
Location and description of site
Description of services
Funding sources
Market highlights
Strategic Development Plan for 1, 3, 5 years
Business Plan - Needs Analysis
Define Market Segment
Clearly define client/customer base
How many potential clients are there?
Where are they found?
What are their characteristics?
Identify other players
Others providing similar services
Others serving the same client base
Similar service providers in other regions
n-2-n Neighbor to Neighbor
Needs: Many of our elderly residents need simple assistance in their homes, cleaning, shopping, yardwork, etc. Some also need simple companionship and primary caregivers need respite assistance. Others with handicaps or temporary medical needs may also benefit.
Scope of Need: In our town of 30,000, we estimate 1,500 households would benefit from some sort of assistance.
Mission and Goals: Connecting neighbors with neighbors and lending a helping hand to elders.
Business Plan – Organization Description
Overview of organization’s plan to meet the needs identified above
Identify goods and services and describe how they will be provided
Organization and Management
Business Plan – Communication and Development
Communication
Development
Business Plan – Financials
Business Plan – Appendices
Budget
Account | Startup | Year I | Year II |
Contributions | $1000 | $500 | $500 |
Grants | $1000 | $10,000 | $10,000 |
Membership Dues | . | . | . |
Investment Income | . | . | . |
Govt services w/o charge | . | . | . |
Other Revenue | . | . | . |
Subtotal | $2000 | $10,500 | $10,500 |
Program Service Revenue | $2000 | $15,000 | $30,000 |
Total 8-9 | $4000 | $25,500 | $40,500 |
Capital Gains/Losses | . | . | . |
Assemble Resources
Crowdfunding
Internet-facilitated fundraising
Tax Laws still apply
Charitable Solicitation Laws still apply
Take account of costs and fees (3-15%)
Equity, Loan, Gift
Entrepreneur: wider exposure, risk loss of ideas or control
Investor: many ideas, lack of due diligence
Establish the Legal Foundations
Increasing burden of inter-related legal regulation
Cost of these mistakes
An attorney familiar with nonprofit law is an indispensable help in successfully meeting all these demands
File Articles of Incorporation and draft Bylaws.
Apply for Federal Tax ID number and Federal Tax Exempt status. FREE
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Articles of Incorporation | Bylaws | EIN SS-4 | Tax Exemption Form 1023 |
Establish a Conflict of Interest Policy
Develop a Corporate record-keeping system
File for state and local tax exemption
Fulfill charitable solicitation law requirements
Apply for a nonprofit mailing permit
Obtain necessary business licenses and permits, professional licenses and insurance
Comply with zoning laws and municipal regulations
Comply with employment laws and establish payroll tax withholding
Protect trademarks / tradenames & intellectual property
Develop a checklist for Corporate Legal Compliance
Articles of Incorporation and Bylaws
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Bylaws
Internal regulation of the organization
Governance: Members and Directors
Appointment of Officers and Directors
Role and responsibilities of the Board
Meaningful oversight of staff – purposes, activities, financials
Amendment and Dissolution - repeat required lanuage regarding purpose and dissolution.
Tax ID number
EIN
Form SS-4
Easy Application
Needed for
Bank account
Tax exempt filing
Employment taxes
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Federal Tax Exemption Application
Form 1023
Part I Identification of Applicant
Part II Organizational Structure
Part III Required Provisions of Organizing Documents
Part IV Narrative of Activities
Part V Compensation of Officers / Directors / Key Employees
Part VI Beneficiaries of the Organization
Part VII History
Part VIII Specific Activities
Part IX Financial Data
Part X Public Charity Status
Part XI User Fee
Supporting Schedules
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Form 1023-EZ
Form 1023-EZ
requires organizations to:
Certify that organizing document complies with 501c3
Certify that organization will not engage in prohibited activities
Provide names/addresses of officers/directors
Remember: Approved Forms 1023-EZ are open to public inspection
Don’t Forget to Pay the User Fee!
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Application Type | User Fee |
Form 1023 | $600 |
Form 1023-EZ | $275 |
Group exemption letter | $2,000 |
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Approval of your application is not guaranteed
Be sure to fill out the application completely and correctly
Once application is approved, IRS will mail a determination letter to the organization
Form 1023-EZ
Reduction in 'Inventory'
Reduced cases more than 270 days old by 91%
From 54,564 (in 4/14) to 4,791 (in 9/14)
Average from nearly 2 years to 30 days on 1023EZ
Annual IRS reporting form for Exempt Organizations
Provides information on the filing organization's mission, programs, and finances.
No tax is due on organization's exempt mission
Tax due on Unrelated Business Income – reported on Form 990-T
Information Return
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990-N | Gross receipts normally ≤ $50,000 (may file 990-EZ or 990) |
990-EZ | Gross receipts < $200,000, and Total assets < $500,000 (may file 990) |
990– | Gross receipts ≥ $200,000, or Total assets ≥ $500,000 |
990-PF | Private foundation - regardless of financial status |
Ethics
Establish a Conflict of Interest Policy
Define Interested Persons
Anyone who stands to benefit from a decision
Require disclosure
Remaining decisionmakers vote on conflict
Record proceedings
Responding to violations
Education and periodic review
Nonprofit Ethics
Provide meaningful financial oversight by board
Financial literacy training for board members
Audit Committee separate from finance committee
Rotate Auditors every 5 years
Establish Document Management Policy
Review corporate bylaws
Review duty of care
Review other corporate compliance obligations
Review intermediate sanctions
Develop a Corporate Record-keeping System
Donation Receipts
State and Local Requirements
Income Tax Exemption (state)
Sales Tax Exemption (state and local)
Property Tax Exemption (local)
Franchise Tax, etc. (state and local)
State charitable solicitation requirements
Soliciting funds from the general public
Fee for service and grant monies generally not covered
Vary from one jurisdiction to another
Check state websites:
Secretary of State, Department of Revenue, Attorney General
Missouri
Articles of Incorporation (SOS)
Apply for sales tax exemption from the state (DOR)
Register as a charity (AG)
Annual Report (SOS) (AG)
Apply for a nonprofit mailing permit
Eligible organizations: Religious, Educational, Scientific, Philanthropic (Charitable), Agricultural, Labor, Veterans, Fraternal
Detailed regulations and qualifications
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Many organizations use e-mail newsletters instead
Local Regulatory Issues
Employment and Payroll
Intellectual Property
Offensive and Defensive
Trademark exclusively identifies the source or origin of products or services
Copyright is a set of exclusive rights regulating the use of a particular expression of an idea or information
Patent is a set of exclusive rights granted by a state for a fixed period of time which is new and useful
Checklist for Corporate Legal Compliance
Board Meetings and Minutes
Annual Filings
Financial and Audit Requirements
Grant Applications and Reports
Employment
Contracts and Insurance
Policies and Procedures
Staff Policies and Procedures
Staff Record Management Policies and Procedures
Staff Budget and Financial Policies and Procedures
Employment Policies
Staff Training Policies
Client Services Policies and Procedures
Character of Policies and Procedures
Clear, useable and available to staff
Managerial and organizational
Drafted to anticipate and prevent legal problems.
Establish Financial Systems
Develop an accounting system and budget.
Professional help in this area is important.
Board Financial Management must ensure appropriate
Communications & Development
Find a Site and Plan to Begin Operations
All the hard work begins to pay off in services offered to clients.
Ensure Policy / Procedures Compliance
Ensure Recordkeeping
Regularly review operations
Further Resources
6 reasons NOT to set up a Nonprofit
1. There is already an organization filling that need.
2. You do not have other people “on board” yet.
3. Your idea is better suited as a for-profit enterprise
4. Starting up takes time.
5. You’d like to plan a one time fundraiser.
6. Your type of cause makes it difficult to secure long term funding.
Dissolution
Meet and/or extinguish all outstanding claims against the organization
Send Articles of Dissolution to Secretary of State
Send Notice to Attorney General
Send Notices to claimants
Obtain Tax Clearance Letter from Dept of Revenue
Send Articles of Termination to Secretary of State
Part II
What is a non-profit?
An organization is not organized for profit
Organized
under the state nonprofit statute
for a recognized nonprofit purpose, e.g. religious, charitable or educational
Often exempt from federal and state taxes: a tax exempt organization – if it complies with certain requirements
Church, Hospital, University, Soup kitchen, Little League, Foundation
Tax-Exempt Organization Reference Chart
Public Charity
Public Charity
Supporting Organizations:
509a3 – Type I: Subsidiary
509a3 – Type II: Overlapping Governance or Contracts
509a3 – Type III: Functionally Integrated or Grants
Private Operating Foundation – devotes most of its revenues to carrying out its exempt purposes.
What is a Nonprofit Board?
Governing body of the organization
Does not own, but administers the organization, its programs and its assets in the public interest
Has the responsibilities specified in the Articles and Bylaws
Methods of Appointment
What is a Church Sponsored Organization?
An organization with a split personality
Two bodies of law, Two sets of responsibilities, Two lines of oversight
Understand how it is organized, and how it is operated
Legal Duties
Duty of Care: Take reasonable care when making decisions for the organization, be competent
Duty of Loyalty: Act in the best interest of the organization, confidentiality
Duty of Obedience: Act in accordance with the organization’s mission, public trust
Articles of Incorporation
Agreement with the state to establish and maintain the corporation: name, duration, location, registered agent, purpose, nonprofit status, amendment & dissolution
Regular filing responsibilities, often overseen by secretary or treasurer
Bylaws
Law for the Corporation
Board Governance
Purpose
Board qualifications, terms and succession
Board powers and responsibilities
Meetings, notice, decisionmaking
Reporting requirements
Financial structure
Officers qualifications, terms and succession
Committees
Amendment and dissolution
Types of Boards
Boards and Management
Traditional Nonprofit Organization Structure
Honorary and Adjunct Boards
Key Board Responsibilities
To make sure that critical systems are functioning the way they should
To make sure that effective systems of checks and balances are in place
To ask the right questions when clues and information tells us that something is not right
Board Requirements
File and publish Form 990 and State filings
Audit / review – file if necessary
Keep state filings current
Licensing and credentialing, JCAHO, HIPAA, EMTALA, Stark Laws
Report UBIT and pay taxes
Pay employment taxes and comply with employment laws, including: ADA, OSHA, FLSA, FICA, COBRA, FMLA.
Limited Lobbying, avoid Campaigning
Give receipts to donors for contributions above $250.
Collect sales tax
Get court approval for distribution of assets.
Register for charitable solicitation and gaming
Pay property tax or obtain exemption
Comply with mailing laws and bulk mailing laws
Meet terms of conditional donations
Comply with state law regarding conflicts of interest.
Register professional fundraising
Obtain business permits
Record minutes of board and annual meeting.
Liability
What is Fiscal Sponsorship?
An arrangement between a 501c3 public charity and a project in which, typically, the charity receives and expends funds to advance the project while retaining discretion and control over the funds.
Not Fiscal Agency – Wrong Term
charity is not agent to receive project $
Fiscal Sponsorship – Preferred Term
charity directs, controls project $
Two Main Ways to Do It Right
Model A – Direct Project
Model C – Pre-Approved Grant
Direct Project, Model A
Project belongs to sponsor
Project is not a separate legal entity
Project personnel are employees / volunteers
Contributions belong to sponsor
Direct Project, Model A
Sponsor is liable for everything
Sponsor reports revenue and expenses
Sponsor OWNS project
Project may have advisory committee
Legal Steps
Project director or advisory committee establishes a contract with sponsor.
Sponsor’s board has already approved a sponsorship program or approves now.
Fundraising done in name of sponsor.
Sponsor receives grants, donations into project fund account, pays costs directly.
Model C – Pre-Approved Grant
Pre-Approved Grant, Model C
Project belongs to grantee
Project is in a separate legal entity
Project personnel work for grantee
Charitable contributions go to sponsor first
Pre-Approved Grant, Model C
Grantee is liable for project
Sponsor reports contributions in and grants out
Grantee reports grant in and expenses out
Sponsor retains “variance power” (discretion and control) over funds
Pre-Approved Grant – 7 Steps
Written grant proposal from project
Sponsor evaluation of proposal
Sponsor Board approval
Written grant agreement
Proper solicitation of funds
Proper accounting for funds
Reports from grantee to sponsor
How Could Anything Go Wrong?
Problems Common to Both Models
Sponsor is “absent,” or “We are just using their 501c3”
No written agreement
Confusion with DAF or other programs
Sponsor mischaracterizes relationship
Donor confusion about recipient
Pre-Approved Grant Problems
Failure to pre-approve the grant relationship
Grantee fails to report income
Ownership of intellectual property
Grantee fails to report back to sponsor
Sponsor pays grantee’s bills directly
Lack of professional grants management
Resources
Fiscal Sponsorship: 6 Ways To Do It Right, 2005 edition
Resources
Fiscal Sponsorship: 6 Ways To Do It Right, 2005 edition
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National Network of Fiscal Sponsors:
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Basic Nonprofit Board Responsibilities
1. Mission and Purpose
Ensure the organization’s mission and purpose.
Create and review a statement of mission and purpose
Articulate the organization’s goals, means, and primary constituents served
2. Select Executive
3. Financial Oversight
Meaningful financial oversight.
Annual Budget and Audit / review
Ensuring that proper financial controls are in place
4. Resources
5. Legal and Ethical Integrity
Ensure legal compliance and ethical integrity
Maintain accountability
Know and adhere to legal standards and ethical norms.
Comply with tax reporting responsibilites
6. Planning
7. Board Development
Recruit and orient new board members
Assess board performance
Articulate prerequisites for candidates
Evaluate its own performance
Ensure leadership succession
8. Public Image
Enhance the organization’s public standing
Clearly articulate the organization’s mission, accomplishments, and goals to the public
Garner public support
9. Programs
Determine, monitor, and strengthen the organization’s programs and services
Evaluate programs for consistency with the organization’s mission
Monitor effectiveness
10. Support Operations
Support the chief executive and assess his or her performance
Ensure that the chief executive has the support needed to further the goals of the organization
Don't micromanage
Don't rubber-stamp
Balanced, meaningful oversight
IRS Priorities
Nonexempt purpose – organizational / operational »Revocation
Exempt asset protection – self-dealing, excess benefit transactions, loans to disqualified persons »Fines
Tax gap – employment taxes, UBIT
International – foreign grants, FBAR
Employee / Independent Contractor
NonProfit Governance
Common Mistakes
1. Failing to Understand Fiduciary Duties
Duties of obedience, due care and loyalty.
Potential liability
Increased scrutiny from the I.R.S., etc.
2. Failing to Provide Effective Oversight
Boards can delegate
Must exercise oversight
Policies / Procedures – that are followed
Review of 990, and Financials
Review of Policies
Conflict of interest, Executive compensation, Travel and expense, Whistleblower, Employment
Committees
3. Deference to the Executive, Chair or Founder
4. Micro-managing Staff
5. Avoiding The Hard Questions
Ask the tough questions
Air differences
Valuable board members calmly and respectfully, speak their mind
Open, vigorous discussions
6. Insufficient Conflict of Interest Management
7. Lack of Awareness of Governing Law
8. Outdated, Inconsistent Governing Documents
Know the documents
Read and apply the documents
When a governance question arises know how to find the answer in the documents
Review documents for consistency, law change, operational change
Slack
9. Airing Disagreements Outside the Boardroom
“What happens in the boardroom stays in the boardroom.”
Duty of loyalty
Don't publicize disagreement with board decision.
If it is too egregious, resign
If it is unlawful, consider legal action to protect the organization's rights
10. Failure to Cultivate Board Diversity
Family and friends of the organization
Volunteers and clients, alum
Community leaders
Professionals
Skills
Reflect population served
Top 10 Nonprofit Risks
Risk 1: Financial loss
Risk 2: Social Media
Exposures from social media use, misuse and naivete.
Risk-management strategies include written guidelines for employees, volunteers and members and a point person to monitor social media.
Risk 3: Incivility
Risk 4: Form 990
Risk 5: Copyrights
Copyrights and trademarks. Use the copyright symbol.
Use work-for-hire agreements with contractors.
Respect the work of others.
Risk 6: Contracts
Failure to limit a contracting authority and other common mistakes in contracting.
Develop a simple policy, clarify who has authority to enter one and obtain legal review, before signing.
Risk 7: Lack of Consistency
Risk 8: Conflicts of Interest
Risk 9: Fraud
Risk 10: Reputation
Caught in the Act - - - Again
Parting Words
Board composition and numbers matter; guard against founder's syndrome
Policies are important but must be understood, implemented and enforced
Public perception is critical - be careful of conflicts of interest and sweetheart transactions, even if they are not unlawful - be responsive
Communications responding to crises that are only CYA pieces will not fool the public
Delegate, but only with due care and proper oversight (e.g., reporting)
Outside assistance can be invaluable (e.g., audits, legal opinions, investigations)
Review key communications, including their websites and the Form 990