State Charitable Registration & Corporate Compliance Requirements for Nonprofits
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State nonprofit registration and compliance requirements can be challenging and confusing. The complexity is compounded by a lack of uniformity among the states in how registration and compliance are achieved. Keeping abreast of these requirements, meeting state expectations, and ensuring that a nonprofit’s greatest assets, its reputation and integrity, are spared from embarrassing press in print or on the evening news are of paramount importance. Also, with state budgets in disarray, new governance requirements and increased scrutiny at the state and federal levels, the risks of noncompliance have never been higher. The costs associated with required registration and compliance in all states, both in terms of time and money, is likely far less than the expenditures required if administrative or enforcement proceedings are initiated in just one state. This program will give you a broad overview of state charitable and corporate compliance requirements for nonprofits and provide valuable reference information that will assist you in meeting these requirements.
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State Charitable Registration & Corporate Compliance Requirements for Nonprofits
- 1. State Charitable & Corporate Compliance Requirements for Nonprofits
- 5. Charitable Solicitation Registration, Renewal & Compliance
- 9. Registration required; accepts URS Registration required; does not accept URS Registration required by Texas LETSA, PSA & VSA Registration NOT required Charitable Solicitation Registration, Renewal & Compliance Registration Requirements
- 14. Charitable Solicitation Registration, Renewal & Compliance Hospital Exemptions Hospitals must register Hospitals exempt with conditions Hospitals exempt with application or review Hospitals exempt from registration
- 15. Charitable Solicitation Registration, Renewal & Compliance Educational Exemptions Registration required for educational institutions Exempts educational institutions with application or notice Exempts educational institutions Exempts educational institutions with conditions
- 24. Nonprofit Corporate Compliance www.nationalcorp.com
- 30. This presentation is provided for informational purposes only and should not be relied upon as legal or tax advice. For matters related to the taxation of specific companies or characterization of nonprofit status, please seek the advice of competent legal counsel and/or a CPA professional. QUESTIONS www.nationalcorp.com
Editor's Notes
- 01/20/12 Thank you Sam, it’s a pleasure to be here today to present on State Charitable and Corporate Compliance Requirements for Nonprofits. It’s a beautiful fall day here in our nation’s capital.
- As Sam mentioned in the introduction, I am the Vice President of Nonprofit Services at National Corporate Research, I’m based out of our Washington, DC office and NCR is headquartered in NY. I am very happy to be here today and I hope that everyone can hear in my voice the smile that is on my face. Obviously, I’ll answer some questions today, but please contact me after the presentation or in the future with any questions. Email me. Connect with me on LinkedIn. In-mail me. Please see me as a resource to assist you and answer questions you have in the future regarding compliance for nonprofits. Disclaimer! Our General Counsel would not forgive me if I forgot to mention this. I am not an attorney, and I cannot and do not provide legal advice. However, some of the material we’ll cover does relate to statutory and administrative requirements, and I spend an inordinate amount of time reading these state statutes, so while I do know a lot about charitable and corporate laws and regulations, it’s important for me to disclaim that I am not an attorney and do not provide legal advice. 01/20/12
- My comments today will focus on two areas of complaince for nonprofits. Now…Compliance is a broad terms, so I should clarify that I’ll be focusing on the state charitable solicitation registration and renewal requirements, as well as corporate annual corporate compliance requirements for nonprofits. I’ll cover the What, Where, How and Why for each, and also discuss some of the consequences of failing to comply with these requirements. 01/20/12
- Before I jump into the first section though, I’d like to also clarify the types of organizations that I am mostly speaking of today. Not all nonprofits are charities, and many nonprofits either don’t solicit donations or are so small that they are usually exempt from charitable registration statutes. When it comes to charitable registration, for the most part, I am not talking about your local house of worship, though I will discuss religious organizations briefly, and in most cases I am not talking about your local PTA or Toastmasters club. With regards to charitable registration, the overwhelming majority of nonprofits that register, or are required to register, are 501c3, tax exempt nonprofits, such as hospitals and healthcare institutions, universities and educational institutions, social charities and nonprofits organized and operated for religious, charitable, scientific, public safety, amateur sports, etc, etc.). However, that doesn’t mean that other types of organizations aren’t required to register…the state charitable solicitation statutes aren’t exclusively written for charities, even for-profit organizations are required to register in some states or in certain circumstances, and the statutes also broadly apply to professional, emphasis added on professional, fundraisers, professional solicitors and professional fundraising counsel. I won’t be covering the requirements for fundraisers, but there are important elements in the statutory registration and compliance requirements for fundraisers that impact the registration requirements for charities and vice-versa, which I will briefly touch on. As for the types of nonprofit entities subject to annual corporate compliance…I am talking about your PTA and Toastmasters club, but I’m also talking about all incorporated nonprofits, not just charities. That includes most association and membership organizations (501c6 organizations), social and recreational clubs (501c7), fraternal societies (501c8) and all other types of federal tax exempt organizations that are incorporated or qualified to do business at the state level. These requirements apply to incorporated for-profit entities as well, but there are some minor differences in the requirements for nonprofits. 01/20/12
- In this first portion of the presentation on Charitable Solicitation Registration, I should mention that some people refer to this as Fundraising Registration, you should know that the terms are basically equivalent. Where they are not equivalent is in the registration and compliance requirements for fundraisers versus charities and other organizations. 01/20/12
- I’ll start off by briefly answering some frequently asked questions: How is charitable solicitation defined? The term is defined differently, from state to state, but it’s basically defined as any “solicitation” for a donation to be used for a charitable purpose. Solicitation is the key word here, because in all states that is the trigger that usually requires registration. Why is registration required? Well, it partially depends on who you ask. If your asking you local state attorney general, then it’s required to protect the public and to comply with the law. If you ask a donor, it’s required because more sophisticated donors want to know that they are dealing with reputable charities that are complying with state requirements. If you’re asking a nonprofit, the answer might be that their CPA recently informed them that changes to the IRS Form 990 now require information relating to where your soliciting, and where you are registered or exempt from registration. When should registration occur? Again, the trigger is “solicitation” however there are a myriad of exclusions and exemptions. Who must register? I briefly touched on that already…mostly 501c3 charitable organizations, but most companies and even individuals on some occassions are required to register. Where is registration required? It’s usually at the State Attorney Generals Office or a consumer protection office unders the AG’s office, or in some states it’s the Secretary of State’s office, and in still others, like DC it’s a business licensing office under the Dept of Consumer and Regulatory Affairs. In some states it ends up in an unusual place, like in Florida, where the Dept of Agriculture handles C charitable registration. What are the consequences of not registering? Well, there are the obvious penalties and fines, but as you’ll see later in the presentation there are many more onerous consequences. 01/20/12
- I think a brief background will help to further answer some of these questions. Fundraising is subject to STATE laws and regulations in 44 states and the District of Columbia, 40 of which and DC have statutes that relate to charitable soclicitations by charities and others non-professional fundraisers soliciting on their behalf. There is no federal regulator when it comes to soliciting charitable donations. Of course if there is egregious consumer fraud involved, the Federal Trade Commission or Department of Justice might get involved, and obviously the IRS might be interested in asking some questions of a charity that reports $10 million in charitable donations but little or no expenses relating to fundraising, but for the most part, this is a matter of state law. Most states adopted the Model Charitable Solicitation Act of 1986 or have written laws that contain most of the provisions of the model act. By the mid-1990’s a group of state Attorney Generals and Charity Officials collaborated on a project to to create a more uniform or unified registration and compliance process for meeting charitable registration requirements. The collaboration was named the Multi-State Filer Project and was meant to address the challenges faced by organizations who were required to file charities registrations, renewals and compliance filing either natyionwide or in multiple states. This collaboration resulted in a Unified Registration Statement (or URS) and state-by-state filing guidelines which could be used for meeting the requirements in each state. So instead of using 40 state specific forms, in most states you could use the one form and submit it in accordance with each states requirements. This form and the guidelines have been updated and amended almost yearly, and the latest version from May 2010 is available online. Not long after the internet was invented, this same group of state attorneys and charity officials, met in Charleston, South Carolina in 1999 to discuss some of the implications the Internet was having on charitable fundraising, and in 2001 they issued the results of their meeting in the form of a document named The Charleston Principles. This document was meant to provide a framework for legislatures and regulators to amend or enact new laws and rules that would clarify registration and compliance requirements in the internet era. But sadly, this document was mostly ignored by most state legislatures and little has been accomplished since 2001. This is unfortunate because charities and fundraisers are using technology in new ways and old state statutes and charity officials are providing little guidance on how to apply outdated laws to cutting edge technology. Earlier this month I attended the annual meeting of NAAG/NASCO in Silver Spring, MD, and an otherwise ho-hum meeting was immediately energized when this topic came up. Attendees wanted guidance and answers to amny questions, but few answers were given. To be fair, the charity officials and state attorneys were being asked to apply 30 year old statutes to fundraising in the cyber age. I’ll discuss this in a little more detail later in this presentation, but please do read my article on this and contact me if I can assist with questions on this…I suspect that there are nmany questions surrounding this topic. In 2006, the Pension Protection Act 01/20/12
- So…I’ve mostly already answered the basic questions about registration, but I should warn you of the many exemptions, exceptions and exclusions, which I’ll get to in just a few minutes. Let me first specifically go over exactly where filings are usually required. 39 or 40 states plus DC require registration. 01/20/12
- 01/20/12
- Before starting the registration process you’ll need to gather some documents and possibly fulfill some prerequisites. For initial registrations there are several documents that must accompany the registration form. You’ll need formation documents, such as your Articles of Incorporation and Bylaws, with all amendments, in a couple of states you’ll need good standing certificates. Other formation documents include the IRS Determination Letter or IRS Application for Exemption Form 1023 or 1024. You’ll also need at least one years worth of fianancial information in the form of a 990, and/or audited financial statements, and for newly registered organizations in their first year of operation, quarterly filings are required in TN during its current FY. If you use paid fundraisers, then copies of contracts must be filed in 23 states. After you’ve gathered the supporting docuemnts, you’ll also need to obtain a Certificate of Authority in some states, so that you can legally solicit donations. Few states consider solicitation by itself as conducting business but a few do and require that you qualify to transact business in their state (examples are CA, CO, DC, ND & OR. Also, IL’s registration forms state that this is required, and the AG’s office strongly recommends qualification in IL, but it is not statutorily required. Also, some states require the naming of a registered agent before solciting in their state. For the states that require qualification you’ll also need a registered agent, but Michigan requires a registered agent but not qualification, whereas UT requires a registered agent but the agent need not reside in UT, so you can name yourself in your home state. As for the registration forms, you can use state-specific forms or the Unified Registration Statement in most states. There are pluses and minuses to each of these forms. The URS might be preferred because it doesn’t include a lot of questions that might be difficult to answer for charities that have failed to comply with the registration requirements. On the other hand, the requires more information to be gathered and provided than is required in many states, so the state form is sometimes easier to use in that respect. Regardless of which forms you use, you’ll need information rleating to your organization, its legal name and all other names used, when and where it was formed, who the officers and directors are, with their addresses and phone numbers, how you solicit donations, relationships between officers and directors or a financial interest in any companies providing services to the organization, responsible individuals, such as who controls the custody and distribution of funds, who has check writing authority and control of records, and in which banks funds are deposited. There is limited financial reporting required for initial registrations and most states will accept the 990 as a supporting document to meet financial reporting requirements. 01/20/12
- 01/20/12 A should remind you though, that not all states accept the URS (CO, FL & OK do not, and HI and NM have online versions of the URS). Also, it is accepted for renewal in 25 states and DC, so it’s not as “unified” as most people might like. Also, Ias mentioned on the last slide, some state renewal forms are shorter and easier to use than the URS. For example, in NY, if you don’t use paid fundraisers, the renewal form (Form CHAR500) is one page for most filers. In other states, like MA you can’t use the URS and are forced to wade through a 14-page nightmare. The Multi-State Filer Project website has the URS Form and very useful state-by-state guidelines for charitable registration, annual renewal and financial reporting requirements and I encourage you to visit their website. The website URL will be provided at the end of this presentation. However, keep in mind that these filing guidelines are just guidelines…I’ve found them to be littered with errors, not many, but enough to cause concern, and they are quickly outdated and not kept current…the last release of these quidelines was in May 2010. So you do need to check state websites and officials relating to any recent changes, especially with respect to fees, signature requirements, forms and required attachments. Also, if your using the URS, another limitation is that many states require state-specific addendums.
- Heres the list of states that require this. Some of the more notable requirements are highlighted. Arkansas requires an Irrevocable Consent for Service of Process; DC requiores a Basic Business License; NH wants a copy of your conflict of Interest Policy, and ND requires a Certificate of Authority from the SOS and Registered Agent Consent. Also, I should note that, as of last month, Maine no longer accepts the URS for renewals and therefore does not require any addendum. 01/20/12
- Ahhhh!!!....We finally arrive to the Black Hole of EXEMPTIONS! There are several industry- and organization- based exemptions and exclusions. The most important and universal exclusion for small nonprofits that are soliciting is that most states have a monetary threshold that must be met before registration is required. In many states that threshold is $25,000, and other states with lower thresholds of $10,000 and lower are changing their statutes to the higher threshold. In DC, the threshold is low at $1,500, but in NY, which is somewhat unique, it is $25,000 for donations received from NY residents or organizations, whereas most states base the monetary threshold on funds raised nationwide. Also, funds raised exclusively for a named individdual, if all of the proceeds go to the named individual, do not trigger a need for registration in most states. The most popular industry-based exemptions are available to hospitals, universities and colleges, and houses of worship…BUT…there’s a catch…and I’ll get to that in two minutes. 01/20/12
- Hospitals and some healthcare related organizations receive exemptions from registration. There are healthcare related exemption for hospitals in 23 states (those are the RED states on this map). 19 states provide exemptions to hospitals (those are the GREEN states), 7 states exempt hospitals but only with an application (those are the PURPLE States), and 2 states exempt hospitals, but only if paid fundraisers are not used (thse sre the BLUE states – Louisiana and Missouri). Also, I’d like to mention that in Illinois only hospitals that are owned or controlled by religious organizations are exempt from registration, so it might be more appropriate to add some BLUE stripes to the state of Illinois. Now…I mentioned that in the PURPLE states that an application is required. This is where we really fall into a bit of a black hole. Some states will offer industry-based and other exemptions, but then require an exemption application, a fee, and annual reporting filings, much akin to charitable registration and compliance…I don’t quite get that…where’s the exemption??? 01/20/12
- Even more states exempt Educational Institutions, but you have to be careful and check the statutes, because many of them define educational institutions differently and will only exempt them under certain circumstances, such as when solciting donations is limited to students, staff, and alumni. In some states, if an educational institution solicits outside of these groups, that’s a trigger for registration. Also, in this map 29 states exempt most education institutions, such as colleges and universities, but only 21 states exempt educational foundations, so again, it’s important to check that statutes. As you can see, only 8 states (the RED ones) require eductationl institutions to register. The GREEN states on this map offer broad exemptions to educational institutions, and 11 PURPLE states exempt them with an application filing. The BLUE states, provide an exemption, but only if solicitation is limited to alumni, faculty, trustees, students and their families. 01/20/12
- The broadest exemption is afforded to religious organizations and more specifically to houses of worship. However, about a dozen states require some form of a letter or exemption application. For example, IL requires a registration and exemption application to be file (Form CO-3). 01/20/12
- Whether you’re soliciting nationwide or just in a few states, it does make sense to do some cost-benefit analysis to determine if registration makes sense from a financial point of view. In GA, the intitial registration fee is $35 and the reneal isn’t due for two years, so GA is a bargain. In most states the fees all low (22 states are under $100 or free), but some states are costly, over $200 in several and up to $2,000 for very large organizations soliciting in MA. Also, Hawaii doesn’t charge for the initial registration, but renewal fees can be up to $750. Once you consider these state filing fees, you also have to add the cost of the time to keep up with all of this work, which if done internally is a potentially large distraction during certain times of the year…mostly May, when the 990 or extensions are due, if you have a 12/31 FYE, but also at the end of June, and in August if extensions were filed in May. Also, a handful of states require renewal filings in September or November, which can be especially detracting during those crucial fundraising months. If you decide to use a service company than there’s that expense to consider as well. I usually estimate annual state fees at approx. $1,500 to $3,000 per year, but they can be as low as $1,300 to as high as $9,000 depending on the size of the organization, some states base their fees on the revenues or contributions received by the charity. 01/20/12
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