compass over land

Forming a new nonprofit can involve a lot of organization and decision making. There are some essentials you need to put in place, including two important documents—articles of incorporation and bylaws. I would be remiss if I didn’t delve into a couple of mistakes I often run across when reviewing nonprofits’ articles and bylaws.

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DIY Internet-Sourced Documents

Some nonprofits pull their articles of incorporation and bylaws from the Internet. These may or may not have all the Iowa-specific info required. Also, there may be provisions that simply don’t apply. For example, if a “regular” nonprofit copies governing documents from a granting nonprofit, like a community foundation, there’s sure to be language that doesn’t fit.

Pulling articles of incorporation off the web may seem cheap and time-saving, upfront. But, if mistakes and oversights from the template render the document ineffective or lacking legal requirements, you’ll be way worse off than if you just enlisted a nonprofit attorney to draft your articles suited to your organization’s unique needs, goals, and mission.

Misplaced Provisions

This may go along with copying off the web. There are sometimes provisions in bylaws and articles that belong somewhere else—the governing documents aren’t the proper place for them. For example, I sometimes see employee rules in articles/bylaws. Generally speaking, employment provisions belong in an employee handbook or employment contract. The same goes for certain policies and procedures such as those on document retention and the whistleblower process. A nonprofit should definitely have these policies, but they don’t fit in the foundational documents.

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So, How Do I Go About Avoiding Mistakes in my Formational Documents?

Each organization is unique and it’s wise to enlist someone (like an attorney well-versed in nonprofit law!) to draft a quality, comprehensive set of documents personalized for your particular situation.

Questions? Want to learn more about turning your dream of an organization that makes a significant impact or positive change? Grab my complimentary Nonprofit Formation Guide and then contact GFLF for a free consult!

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You’re not imaging things if it seems like nonprofit charitable organizations are popping up like sweet corn in the summer. According to the National Center for Charitable Statistics, more than 1.5 million nonprofits were registered with the Internal Revenue Service (IRS) in 2015—an increase of 10.4% from 2005.

Is this a good thing?

On the one hand, Americans are incredibly generous, donating $427.71 billion to charity in 2018. On the other hand, more nonprofits mean more competition for those dollars and the duplication of services, both of which can limit a nonprofit’s effectiveness. When nonprofits can’t pursue their missions effectively, those who benefit from their services may suffer.

The issue of whether or not some nonprofits might be better off merging in order to be more efficient and successful in fulfilling their objectives and meeting their goals is a real one. But for the average donor, or those designating an organization in a will or trust, learning that a favorite nonprofit is merging with another nonprofit can raise questions about what this means immediately and in the long run.

The urge to merge

Philanthropy can be incredibly personal. We are motivated to donate time and money to organizations that represent some of our most deeply felt attachments and interests, so when a beloved nonprofit announces it is merging with another one, it can feel like a kind of betrayal.

A merger is a kind of partnership in which two or more organizations become a separate entity. Mergers between and among nonprofits can be well-planned, strategic, and result in greater collective impact and growth. Or, they can be messy, fraught, and lead to confusion and a loss of support.

Nonprofit mergers are more common than you might think and even though they’re often seen as simply a survival tactic to stave off financial ruin, they can take place for many different reasons:

  • Expand the range or improve the quality of services each provides by pooling and leveraging resources
  • Diminish competition between organizations that vie for donors, board members, and funding
  • Compensate for the loss of a founder or key leader that leads the board to question its viability
  • Establish stronger strategic positioning with funders, competitors, and policymakers
  • Formalize an existing relationship or collaboration

Donors and nonprofit mergers

While a merger might be good for a nonprofit, what about donors or volunteers?

Nonprofits should send out a notice to stakeholders early in the merger process and be completely transparent. It’s a smart step to make supporters aware of the following:

  • The reasons behind the merger
  • Information about the other nonprofit and how each organization’s mission and programs align
  • A timeline and status updates
  • The names of the merger team
  • Any anticipated changes in leadership

If donors plan to give a donation during life or make a charitable bequest through an estate plan will they go to the new organization? Or the old organization? For donors, one way to make certain a donation is honored for the purpose it’s given by setting clearly articulated expectations. Merging nonprofits can honor this by offering options for donors to do this via a templated form.

Nonprofits are often reluctant to merge because they fear alienating loyal donors, but a merger can mean reducing costs. It can also mean cutting duplication of services and increasing reach and effectiveness for the charity. Nonprofits that effectively articulate these benefits to their loyal funders will be unlikely to lose supporters of the mission. Furthermore, it’s a good idea to invest in a strong set of policies and procedures, including a gift acceptance policy so that equal standards for all gifts are communicated to current and prospective donors.

Donors that happen to already support both nonprofits already, should consider contributing the total amount to the merged nonprofit. The old nonprofits will cease to exist upon the merger, but that shouldn’t be let that be a reason to end full support for the causes the donor cares about!

Is your Iowa nonprofit considering a merger? Please contact me via email (gordon@gordonfischerlawfirm.com) or on my cell phone (515-371-6077). I’d be happy to discuss best practices for your merger with you anytime. I offer a free, one-hour consultation for all!

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One time I gave a presentation to a group of professionals on “Essential Eight: Clauses That Should be in Every Executive’s Contract.” From my experience in nonprofit formation and compliance, it’s clear that great employment relationships start with smart employee agreements. This goes for both private and public, for-profit and nonprofit, organizations. An employee agreement ultimately benefits both the executive hire and the organization as it can minimize risk for both parties. (Remember, an employee handbook is entirely different than an employee agreement and certainly shouldn’t be mistaken for one!)

A good employment agreement should clearly spell out the terms of the employment relationship and should include (in some form of wording or another) the following eight clauses highlighted below.

Executive employee agreement essential 8

Executive employee agreement essential 8 second half

Dispute resolution and forum selection sound a bit confusing? I would be happy to discuss these clauses in detail with you if you’re getting ready to hire a new executive, forming a new nonprofit, or are updating employee agreements. It’s never too early or too late to make sure you maximize the power of the employee agreement.

Contact me at any time to take me up on my offer for a free one hour consult!

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At times nonprofits that share highly similar missions, goals, and the like can be consolidated to maximize impact. So, in Iowa, what’s the process of a legal merger between two nonprofits?

Definition of Terms: What’s a Merger

Like many legal terms, the word “merger” is capable of multiple definitions. A merger can mean an asset acquisition; partnership; parent-subsidiary relationship; umbrella organization; and, of course, an outright merger.

Asset Acquisition: Assets of an organization are transferred to another entity, but the organization itself is not acquired.

Partnership: A relationship in which two or more organizations pool money, skills, and/or other resources and share risk and reward, in accordance with mutually agreed-upon terms.

Parent-Subsidiary: A relationship in which two separate corporations are maintained after a merger, with one (the “parent”) being a member corporation with its only member being the other corporation (the “subsidiary”).

Umbrella: An overarching organization that holds several smaller organizations under it, each participating in the same branding and organizational structure as the umbrella, for the purpose of gaining efficiencies, improving and expanding available administrative services, and coordinating programs to better and/or more widely serve the community.

Outright merger: The process of combining two or more organizations into one organization.

Iowa Revised Nonprofit Corporation Act 

The Iowa statute which governs nonprofits is known as the Iowa Revised Nonprofit Corporation Act (“RINCA”) and can be found at Iowa Chapter 504. RINCA has a specific subchapter on mergers, Subchapter XI. Here’s a list of the major sections:

RINCA, Iowa Code Chapter 504, Subchapter XI: Merger

504.1101         Approval of plan of merger

504.1102         Limitations on mergers by public benefit or religious corporations.

504.1103         Action on plan by board, members, and third persons

504.1104         Articles of merger

504.1105         Effect of merger

504.1106         Merger with foreign corporation

504.1107         Bequests, devises, and gifts 

RINCA Definition of Terms

RINCA continually refers to nonprofit as “corporations.” To prevent confusion, and for simplicity’s sake, I change this and refer to “nonprofits.”

Also, RINCA discusses three kinds of nonprofits: religious, mutual benefit, and public benefit.

  • Religious nonprofits,” just as you would expect, refer to nonprofits with a sole or primary purpose that is religious in nature.
  • Mutual benefit nonprofits” work for the betterment of a select group of members, rather than for the benefit of the public. The most obvious type of mutual benefit nonprofit is a membership organization, such as a union, business chamber of commerce, or homeowner’s association.
  • Most nonprofits fall into the third category — “public benefit” nonprofits. This would include nonprofits like the Girl Scouts, Red Cross, and Iowa Public Radio.

Also, RINCA repeatedly refers to “foreign” nonprofits. Foreign nonprofits are simply nonprofits organized under other state laws; states other than Iowa.

Articles of Incorporation and Bylaws

RINCA continually refers to nonprofit articles of incorporation and bylaws. Usually, in a phrase like, “Unless the articles of incorporation or bylaws provide otherwise . . . . ” RINCA very often defers to the nonprofit’s own governing documents. In that way, RINCA acts as a “gap filler,” providing rules where nonprofits’ governing documents are silent or ambiguous.

Step One to Merger: Plan of Merger

RINCA begins quite sensibly by stating that nonprofits may merge. Nonprofits may merge, IF a proper plan of merger is properly approved.

What’s a plan of merger? A plan of merger must contain all of the following:

(1)       The name of the nonprofits;

(2)       The terms and conditions of the planned merger; and

(3)       The manner and basis, if any, of converting the memberships of each nonprofit into memberships of the surviving nonprofit.

A plan of merger may include any of the following:

(1)       Any amendments to the articles of incorporation or bylaws of the surviving corporation to be affected by the planned merger.

(2)       Other provisions relating to the planned merger.

Step Two: Approval of Plan of Merger

Who Approves the Plan of the Merger

Precisely who has the right or obligation to approve the plan of merger? The Iowa Code starts to answer that question with the common phrase, “unless . . . . the articles or bylaws impose other requirements . . . ” and then goes on to say: . . . a plan of merger for a corporation must be approved by all of the following to be adopted:

(1)       The board

(2)       The members, if any, by two-thirds of the votes cast or a majority of the voting power, whichever is less.

(3)       In writing by any person or persons whose approval is required by a provision of the articles authorized by section 504.1031 for an amendment to the articles or bylaws.

OK, so of course the Board of Directors approve the plan of merger, makes perfect sense. What about (2) & (3) above?

Members’ Approval

Who are the “members”?  That term, “members,” has a very specific meaning under RINCA.

RINCA defines “members” as: “Member” means a person who on more than one occasion, pursuant to the provisions of a corporation’s articles or bylaws, has a right to vote for the election of a director or directors of a corporation, irrespective of how a member is defined in the articles or bylaws of the corporation. A person is not a member because of any of the following:

(1)       The person’s rights as a delegate.

(2)       The person’s rights to designate a director.

(3)       The person’s rights as a director.

Note, again, very unusual for RINCA, that the definition of a “member” is given by RINCA, period, irrespective of how a member is defined in the articles or bylaws of the corporation. And, under RINCA, a member is someone who has a right to vote for directors.

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Third Person’s Approval

As to who approves the plan of merger, RINCA goes further, however, to include:

. . . a plan of merger for a corporation must be approved by all of the following to be adopted:

. . . In writing by any person or persons whose approval is required by a provision of the articles authorized by section 504.1031 for an amendment to the articles or bylaws.

What is this Section 504.1031? That section reads as follows:

504.1031 Approval by third persons. The articles of a corporation may require that an amendment to the articles or bylaws be approved in writing by a specified person or persons other than the board. Such a provision in the articles may only be amended with the approval in writing of the person or persons specified in the provision.

So, nonprofits looking to merge must look to their own Articles to see if any third persons must also approve the plan of merger.

 How Does the Board and Members Approve the Plan of Merger

According to RINCA, there are three different ways that a plan of merger can be approved:

(1)       at a membership meeting;

(2)       by “written consent;” or

(3)       by written ballot.

Each of these has different requirements.

Requirements for Membership Meeting, at Which Plan of Merger is to be Approved

If the board seeks to have the plan approved by the members at a membership meeting, the following requirements must be met:

(1)       Notice to its members of the proposed membership meeting in accordance with Section 504.705.

(2)       The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger and contain or be accompanied by a copy or summary of the plan.

(3)       The copy or summary of the plan for members of the surviving nonprofit shall include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision.

(4)       The copy or summary of the plan for members of the disappearing nonprofit shall include a copy or summary of the articles and bylaws which will be in effect immediately after the merger takes effect.

What is sufficient “notice” under Section 504.705?

Under RINCA, nonprofits must give notice, consistent with its bylaws, and in a fair and reasonable manner. Helpfully, RINCA provides a description of when a notice is fair and reasonable.

Notice is fair and reasonable if all of the following occur:

(a)        The corporation notifies its members of the place, date, and time of each annual, regular, and special meeting of members not more than sixty (60) days and not less than ten (10) days, or if notice is mailed by other than first-class or registered mail, not less than thirty (30) days, before the date of the meeting.

(b)       Again, the notice of a meeting includes a description of the plan of merger.

(c)        Again, the notice of a special meeting includes a description of the purpose for which the meeting is called, e.g., approval of the plan of merger.

Requirements for Merger is to be Approved by Written Consent

Under RINCA, nonprofits may take action by “written consent.” In other words, action by written consent refers to a person’s right to act by written consent instead of a meeting, e.g., a signed document.

Written consent can be limited or even prohibited by a nonprofit’s articles or bylaws of the corporation. Here’s a potential problem: the action must be approved by members holding at least eighty percent (80%) of the voting power. That is a high bar.

Requirements for Merger to be Approved

By Written Consent or Ballot

Whether approval by written consent or written ballot, both share some requirements. If a nonprofit seeks to have the plan of merger approved by the members by written consent or written ballot:

(1)       The material soliciting the approval shall contain or be accompanied by a copy or summary of the plan of merger.

(2)       The copy or summary of the plan for members of the surviving corporation shall include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision.

(3)       The copy or summary of the plan for members of the disappearing corporation shall include a copy or summary of the articles and bylaws which will be in effect immediately after the merger takes effect.

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Email for Written Consents or Written Ballots

Can email be used for either written consents or written ballots? Yes! (The issue with email and written consents is the requirement of a signature; the issue of email and ballots is the “checkmark” or “X”).

Unless prohibited by the articles or bylaws, a written ballot may be delivered, and a vote may be cast on that ballot by electronic transmission. Electronic transmission of a written ballot shall contain or be accompanied by information indicating that a member, a member’s agent, or a member’s attorney authorized the electronic transmission of the ballot.

The last sentence simply means there must be an indication that the returned ballot was from the member to whom it was emailed (a block signature, etc.).

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 Step Three: Prepare Articles of Merger

Let’s assume a plan of merger has been approved pursuant to RINCA, specifically, Iowa Code Sections 504.1101 and 504.1103 (and the Iowa Code provisions set forth therein). Next step? Articles of merger.

The articles of merger must contain all of the following:

(1)        The names of the parties to the merger.

(2)        If the articles of incorporation of the survivor of a merger are amended, or if a new corporation is created as a result of the merger, the amendments to the articles of incorporation of the survivor or the articles of incorporation of the new nonprofit.

(3)        If the plan of merger required approval by the members of a nonprofit that was a party to the merger, a statement that the plan was duly approved by the members.

(4)        If the plan of merger did not require approval by the members of the nonprofit that was a party to the merger, a statement to that effect.

(5)        If approval of the plan by some person or persons other than the members of the board is required a statement that the approval was obtained. (This is the “approval by third persons” (Section 504.1031) discussed above).

Articles of merger must be signed on behalf of each party to the merger by an officer or other duly authorized representative. (But only to be signed after the plan of merger is approved).

Step Four: File Articles of Merger with the Iowa Secretary of State

Articles of merger must be delivered to the Iowa Secretary of State for filing by the survivor of the merger. If there are other filings resulting from the merger, say, new and revised Articles of Incorporation, these may be filed as a “combined filing.”

Once the articles of merger are successfully filed, the merger is complete.

Step Five: Recognize the Legal Effect of Merger

Upon a successful merger, all the following occur:

(1)       Every other party to the merger merges into the surviving nonprofit and the separate existence of every nonprofit except the surviving corporation ceases.

(2)       The title to all real estate and other property owned by each party to the merger is vested in the surviving nonprofit without reversion or impairment subject to any and all conditions to which the property was subject prior to the merger.

(3)       The surviving nonprofit has all the liabilities and obligations of each party to the merger.

(4)       A proceeding (e.g., a lawsuit) pending against any party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the nonprofit whose existence ceased.

(5)       The articles of incorporation and bylaws of the surviving nonprofit are amended to the extent provided in the plan of merger.

“Bequests, Devises, and Gifts”

An interesting side note: RINCA’s subchapter on merger contains a provision about “bequests, devises, and gifts.” Bequests are property left to someone by a decedent through his or her will. A devise is the same, only given through a trust. The term “gifts” here means “charitable gifts.”

Any bequest, devise, gift, grant, or promise contained in a will or other instrument of donation, subscription, or conveyance, that is made to a constituent corporation and which takes effect or remains payable after the merger, inures to the surviving corporation unless the will or other instrument otherwise specifically provides.

That’s really pretty great, right? So, if someone should leave property (cash, stock, bonds, real estate, whatever) through a will or trust, or just about any other way, to a “non-surviving” nonprofit after a merger with a surviving nonprofit, the property will go directly, without question, to the surviving nonprofit (unless specific instructions are left to the contrary).

Is your Iowa nonprofit considering a merger? Please contact me via email (gordon@gordonfischerlawfirm.com) or on my cell phone (515-371-6077). I’d be happy to discuss the Iowa laws on merger with you anytime. I offer a free, one-hour consultation for all.

nonprofit paperwork

Employment policies are vital to the well-being of your favorite nonprofit. Such policies set workplace expectations, define work guidelines, reduce and eliminate confusion and misunderstanding, and provide steps necessary for any disciplinary action. Formalizing workplace rules makes certain that everyone—from independent contractors to management to staff to board members—are informed and on the same page.

Benefits of Employment Policies

An official set of well-developed employment policies provides many benefits for your nonprofit. For nonprofit employers, policies capture the values you wish to instill in your workforce, outline the standards of behavior you expect, and provide a clear guide for rights and responsibilities. Instituting strong, fair, and unambiguous policies not only contributes to a happier workforce, but it can also improve employee retention. Further, employment law is vast, complicated, and can be tricky to navigate. Well-drafted employment policies, as described below, can also help you avoid legal issues and costly mistakes.

Employee Handbook

Employee handbooks are not required by law, but having one is in the best interest of your nonprofit and those who work for you— even if you have just one employee. A good employee handbook effectively communicates your nonprofit’s policies and procedures to employees and makes clear the rights and responsibilities of employees in your organization. Many disputes can be avoided by a clear, easy-to-read, and straightforward employee handbook.

 Employment Agreement

An employment agreement sets the conditions, terms, and obligations between you as the employer and an employee. It’s considered a binding contract that should be administered in writing and signed by both the employee and an acting officer.

Employment agreements need to be individualized to suit each employment relationship. But important elements of employment agreements may include salary; benefits; work schedule; paid-time off (PTO) allotment; restriction on confidential information; non-compete and non-solicitation provisions; mandatory mediation and arbitration for all disputes; and making certain the employee is considered to be only “at-will,” that is, the employee can be fired at any time for any reason.

 Formal Performance Review

Formal performance reviews are an assessment of an employee by a supervisor and employee (it’s a two-way, not a one-way discussion) that are based on jointly determined job goals and performance objectives. While often overlooked—and sometimes dreaded—performance reviews are of great value to nonprofit employers and their employees.

You should have in place a standardized form and consistent processes for conducting individual performance reviews of all employees. Evaluating the quality of an individual’s work, ability to meet goals, communication skills, adherence to your nonprofit’s mission, attendance, and dependability, among other criteria, is key to effective workforce management and to building trust with employees.

 Employee Personal File

A personnel file is a hard copy folder or digital file that contains information related to every new employee, existing employees — full and part-time — and former employees. Knowing what needs to be stored in a secure personnel file — and what NOT to keep in it — will help your nonprofit in promotion and termination decisions; provide a means of tracking vacations, training, and achievements; and are necessary to comply with local, state, and federal regulations.

A personnel file should only contain items related to his or her job or employment status. These include (but are not limited to):

  • Application and resume
  • Signed acknowledgment page from employee handbook
  • Pay information including timesheets, W-4s, and withholding forms

Just as important as having the right information in a personnel file, is to avoid placing the wrong documents in a personnel file. Some items that should NOT be in an employee’s personnel file include:

  • Medical information and accommodation requests
  • Whistleblower complaints
  • Court orders, such as garnishment or restraining orders

Independent Contractor Agreement

Self-employed, freelancer, consultant. No matter what they call themselves, people who provide goods or services to your nonprofit, but are not your employees, are considered independent contractors. Independent contractors differ from employees in that IC’ers control their financial and work-related relationships and pay their own self-employment, Social Security, and Medicare taxes.

When you hire an independent contractor, you should have a written and signed contract that clearly outlines the scope of work, price, and payment, severability, deliverables, and clearly identifies the person as an independent contractor. Also, you can minimize and avoid legal liability by placing the right provisions in an independent contractor agreement.

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Updating Employment Policies & Additional Policies Needed

If you already have some (or even all) of the above-listed employment policies in place, when were they last updated? Think about the many ways your organization has changed and grown since they were written, including new employees you hired and existing employees whose roles evolved. Changes to state and federal laws may have rendered some elements of your employment policies incomplete or out of compliance. It may be time to renew your commitment to a productive and happy workplace by revising employment policies.

What Other Policies Do You Need

Be aware this blog discusses only employment policies. To work toward optimal IRS compliance, you should adopt the nine major policies and procedures which appear on IRS Form 990. Also, you should have documents in place covering ethics; grantors and grantees; endowment management; and legal training for your board of directors.

Let’s Talk!

To discuss further, please don’t hesitate to contact me via email (gordon@gordonfischerlawfirm.com) or on my cell phone (515-371-6077). I’d be happy to discuss this blog post, and employment policies, with you any time. I provide a one-hour free consultation, without any obligation whatsoever.

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Submitting Form 1023 for “Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code” to the IRS is cause for celebration for any organization seeking that coveted tax-exempt status. While waiting for the determination letter from the IRS regarding the application, there can be many uncertainties regarding what to tell donors about donations, and what to do about other submissions, like Form 990.

For oversight and evaluation purposes, most nonprofits need to annually file Form 990 (Return of Organization Exempt From Income Tax) instead. Beyond aspects of the organization’s finances, Form 990 collects information related to practical and operational aspects like conflicts of interestSarbanes-Oxley compliance, and charitable gift acceptance. Submitting an annual filing is also essential to retaining the tax-exempt status.

When is Form 990 Due?

So, when is Form 990 due exactly? It depends on the end of your organization’s taxable year; the form is due the 15th day of the fifth month after the organization’s taxable year.  For most tax-exempt organizations that follow the typical calendar year (January 1 through December 31), this means Form 990 is due on May 15th every year.

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What Do New Nonprofits Need to Do?

What does this mean for new nonprofits and organizations waiting on the tax-exemption determination letter? Expect to submit a variation of Form 990 in the year following the close of the first tax year. This is the case even if the organization is still waiting on the determination letter from the IRS in regard to tax-exempt status.

So, for example, let’s say a nonprofit filed articles of incorporation with the Secretary of State and adopted bylaws in March 2019. The organization subsequently submitted Form 1023 to apply for tax-exempt 501(c)(3) status. In the governing documents, the organization’s tax year is established as the typical January to December. For this organization, they should expect to file Form 990 by May 15, 2020, with information related to the receipts for the 2019 operating year.

Plan Ahead to be Prepared to Submit

The full Form 990 is over 10 pages (not including additional schedules and written attachments), so no doubt your organization should have a jump start on the process. The best way to be prepared, year after year to avoid a failure to file, is to have updated and applicable policies asked about on the form readily available to be referenced. I’m offering a great deal that features 10 policies related to Form 990 for $990. The rate includes a comprehensive consultation to discuss your organization’s need and a round of reviews so we can make certain the documents fit your organization’s needs.

No matter what stage of the nonprofit process you’re at—from just getting started to hiring employees to board management—don’t hesitate to contact me with questions or challenges. I’m available via email (gordon@gordonfischerlawfirm.com) and by phone (515-371-6077).

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Applying for tax-exempt status from the IRS is both exciting and an anticipatory waiting game. Even if you answer every question on Form 1023 and pay the correct filing fee it can take about 180 days to get a determination letter—the official notification that the organization meets the federal tax exemption as a 501(c)(3) nonprofit.
One of the key reasons entities choose to apply for that coveted tax-exempt 501(c)(3) status in the first place is so that they can offer donors the option to claim a tax deduction on donations. So, what are you supposed to say to donors in that bureaucratic purgatory between incorporation and submitting Form 1023 and waiting for the actual green light go-ahead to say you’re a tax-exempt organization?
The good news is that while your application is pending, the entity can treat itself as exempt from federal income tax back to the date of organization. This would be when the articles of incorporation were filed with the Secretary of State’s office.
That said, there is a big however when it comes to donors. Contributions do not have assured deductibility during this in-between period.
If the applicant entity is eventually granted tax-exempt status, then any donations made during this time period would be tax-deductible for the respective donors. But, if the entity is ultimately not granted federal tax-exemption, then any contributions made during the in-between period will not be tax deductible for the donor.
In the spirit of transparency, the uncertain status of donations (whether they are tax-exempt or not) should be something leaders of organizations should share with donors during this period. If appropriate, organization leaders can indicate that they have every reason to believe the donations in the interim period will be tax-deductible after 501(c)(3) status is achieved, but cannot be guaranteed in the present. Nonprofit pros will also want to indicate they will notify current donors about any status change following the determination letter. It’s also a good idea to implement a gift acceptance policy from the start.
I’m happy to help guide interested nonprofit leaders through the application process and then assist with all of those legal uncertainties and compliance requirements on the way to successful change-making. Don’t hesitate to contact me via email (gordon@gordonfischerlawfirm.com) or phone (515-371-6077), no matter what step along the way you are.
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If you’ll think back to the early 2000s, in the aftermath of the Enron scandal (among others such as Tyco, Global Crossing, and WorldCom) the climate of distrust and dramatic malfeasance demanded reform of corporate accounting, governance, and other business practices. Accordingly, U.S. Congress passed the Sarbanes-Oxley Act, a law name that’s easier to remember than the actual full legislation name: The American Competitiveness and Corporate Accountability Act of 2002. In summary, the legislation required adherence to certain governance standards by corporate management, and expanded the role the governing board plays in financial and auditing oversight and procedures. It also applied standards of operation to public accounting firms.

Sarbanes-Oxley’s intended consequences were multitudinous, including closing accounting loopholes, increasing accountability and disclosure requirements, rebuilding public trust in American corporations, and increasing penalties for corporate and executive wrongdoing.

Although Sarbanes-Oxley was passed with publicly-traded companies top mind, there are two provisions that are explicitly relevant to tax-exempt organizations: the whistleblower policy and document retention and destruction protocol.

Whistleblower

A whistleblower policy is not technically mandated for nonprofit organizations, but it makes smart sense to adopt such a policy. Why? First off, it encourages stakeholders in the organization to bring attention to problems in the early stages where issues may be more solvable. It’s also important for state and federal liability purposes and ensuring organization executives, board members, and other stakeholders understand their right to report as well as the implications of inhibiting such reporting.

Section 1107 of Sarbanes-Oxley makes it a federal crime to knowingly take any action with the intent of retaliation against a person who has reported truthful information to law enforcement relating to any current or possible federal offense. Violators of this provision are subject to fines and/or imprisonment for up to 10 years.

An ideal nonprofit whistleblower policy should both set a process for complaints to be addressed and include protection for whistleblowers. A well-written whistleblower policy can encourage an appropriate, swift response of investigation and solutions to complaints.

Form 990, the annual information report the majority of nonprofit organizations are required to file, states the following in its instructions:

A whistleblower policy encourages staff and volunteers to come forward with credible information on illegal practices or violations of adopted policies of the organization, specifies that the organization will protect the individual from retaliation, and identifies those staff or board members or outside parties to whom such information can be reported.

Record-keeping

macbook on table

The acts of document retention and destruction are also covered under Sarbanes-Oxley. Section 802 of the Act defines the criminal penalties for tampering with documents in relation to federal investigations and bankruptcy. It reads:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

You read that right. Violators of this provision can be fined and/or imprisoned for up to 20 years.

Additionally, Section 1102 of Sarbanes-Oxley makes it a crime to tamper with a record or otherwise impede an official proceeding. Violators of the provision may be fined and/or imprisoned up to 20 years if they “corruptly” alter, destroy, mutilate, or conceal a record, document or other objects, or make an attempt to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding. (Note, the term “corruptly” is not defined, but your organization can and should use the best judgment on the word.)

Your nonprofit should include specifics related to these Sarbanes-Oxley provisions in a “document retention and destruction policy.” This policy should clarify what types of documents should be retained, how they should be filed, and for what duration. It should also outline proper deletion and or destruction techniques to ensure compliance and reduce liability risks.

Get Policies Set in Place: 10 for 990 Policy Special

Nonprofit organizations should have relevant and updated policies in place that provide guidance for compliance with these Sarbanes-Oxley requirements. I’m offering the 10 for 990 nonprofit policy special where I’ll draft 10 policies related to annual reporting on Form 990 for only $990. Two of the policies included—whistleblower and document retention and destruction—specifically address requirements under Sarbanes-Oxley.

Seize the opportunity to get strong policies in place for a compliant future! Additionally, if you have specific questions about Sarbanes-Oxley compliance don’t hesitate to contact me directly via email (Gordon@gordonfischerlawfirm.com) or by phone (515-371-6077).

employees as a desk

An employee handbook is just an employee handbook…or so you may think. But, what happens when it doesn’t have an appropriate “disclaimer?”

Incorporate a Disclaimer

In addition to smart employment policies, all nonprofit entities should develop an employee handbook as a part of the onboarding/training process for all employees. The handbook, like other employment policies, serve the purpose of capturing the values you wish to instill in your workforce, outline the standards of behavior you expect, and provide a clear guide for rights and responsibilities.

That said, an employee handbook can actually be considered an employment contract if you’re not careful. And, to best set out the parameters of the employment relationship, it’s best if the handbook and contract are two different documents.

If you think about it, an employee handbook has all the elements of a contract—it’s written, it’s specific, it “promises” certain things will (or won’t) happen. It’s even “signed” by the nonprofit/company.

An employee handbook could actually be considered a unilateral employment contract unless the employer includes an appropriate disclaimer, with wording like this:

“The policies, procedures and standard practices described in this manual are not conditions of employment.  This manual does not create an express or implied contract between the Nonprofit/Company and employees.  Nonprofit/Company reserves the right to terminate any employee, at any time, with or without notice or procedure, for any reason deemed by the Nonprofit/Company to be in the best interests of the Nonprofit/Company.”

Free Employee Handbook Sample

To make all of this more salient, I’ve compiled a free Employee Handbook guide that you can use as a sample guide to better understand how a handbook and a contract or agreement differ.

There are many reasons why an employee handbook should be just that and not also serve as an employment contract. I would be happy to review the employment documents you currently have in place or outline what documents your nonprofit needs, to ensure you have the best possible foundation for legal compliance. Shoot me an email (gordon@gordonfischerlawfirm.com) or give me a call (515-371-6077) and we’ll get your free (no-obligation) one-hour consultation scheduled.

discussion over table with laptop

Imagine I’m working with a great new client named Daphne. She wants to found a nonprofit organization to assist at-risk youth in her local community and across Iowa. This is a hypothetical memo I would send to Daphne outlining the steps of what it takes to form a nonprofit in the state of Iowa. (Note, if you’re looking to form a 501(c)(3) it’s best work with a qualified attorney for advice and counsel specific to your situation and goals.)

To:                  Daphne Downright – SENT VIA EMAIL
From:             Gordon Fischer (gordon@gordonfischerlawfirm.com)
Subject:         How to Form a 501(c)(3) Nonprofit
Date:              April 13, 2019

Dear Daphne:

Good afternoon! I very much enjoyed our phone conversation of this morning, where we discussed your intent to begin a nonprofit to assist at-risk youth. Certainly this is an noble mission and I have no doubt that you could make a big impact. I also acknowledge you are very busy and don’t have the time to allocate to dealing with all of the documentation. So, I’m here to take this stress off of your plate!

Let’s recap some details regarding the process for founding a nonprofit organization. These steps will set your public charity up for the best possible success.

Main Steps to a 501(c)(3)

To recap what we talked over, forming a 501(c)(3) involves four steps:

  1. drafting, editing, and filing articles of incorporation;
  2. drafting and editing bylaws, with new board members then voting in favor of the bylaws in a duly authorized meeting;
  3. applying for an Employer Identification Number (EIN); and
  4. drafting, reviewing, and editing the IRS non-exempt status application, known as IRS Form 1023, as well as all the supporting materials IRS Form 1023 requires.

By far, the most difficult and time-consuming of the four steps is the IRS Form 1023. You should definitely review the form immediately, so you can gain a sense of the level of detail and involvement it requires.

How much does it cost?

While my regular hourly rate can go up to $300 per hour, I often have agreed with clients to perform all the legal work required to successfully begin a nonprofit for a flat fee of $4,800. I typically bill this over the span of five months, i.e., five easy payments of $980, due on, say, the first of each of the months.

Additionally, as you would expect, this matter will necessitate payment of filing fees to governmental agencies, such as the Iowa Secretary of State’s Office and the IRS. (The Iowa Secretary of State has a $20 filing fee, and the IRS 1023 Form has a $850 or $400 filing fee depending on the amount of gross revenue expectations). Of course, clients are solely responsible for payment of all such governmental fees.

How long does this take?

It usually takes a few months to pull all the paperwork together, including and especially Form 1023. I’ve had, however, ambitious clients who wanted to do it much faster, and I was able to accommodate. The flat fee includes as many conferences with me as you reasonably need for us to complete steps 1-4, above.

Benefits of Nonprofit Formation

Daphne, the benefits of a 501(c)(3) are many and include:

Tax exemption/deduction

Organizations that qualify as public charities under Internal Revenue Code 501(c)(3) are eligible to be completely exempt from payment of corporate income tax. Once exempt from this tax, the nonprofit will usually be exempt from similar state and local taxes.

Even better: if an organization has obtained 501(c)(3) tax exempt status, an individual’s or company’s charitable contributions to this entity are tax-deductible.

Eligibility for public and private grants

Nonprofit organizations can solicit charitable donations from the public. Many foundations and government agencies limit their grants to public charities.

Being able to offer donors income tax charitable deductions for donations, as well as eligibility for public and private grants, are probably the two major reasons folks want to obtain 501(c)(3) status.

Formal structure

A nonprofit organization exists as a legal entity and separate from its founder(s). Incorporation puts the nonprofit’s mission and structure above the personal interests of individuals associated with it.

Limited liability

Under the law, creditors and courts are limited to the assets of the nonprofit organization. The founders, directors, members, and employees are not personally liable for the nonprofit’s debts. There are exceptions. A person cannot use the corporation to shield illegal or irresponsible acts on his/her part. Also, directors have a fiduciary responsibility; if they do not perform their jobs in the nonprofit’s best interests, and the nonprofit is harmed, they can be held liable.

Focus your giving

With charitable giving flowing through a central nonprofit organization, and not through, say, a for-profit business, it’s easier to focus the giving on a singular mission. A for-profit business may be easily pulled away from a charitable mission by the pet causes of lots of different customers, clients, vendors, and employees. A nonprofit should be much less susceptible to such pressure.

Responsibilities of Forming & Managing a  Nonprofit

Of course, there are serious responsibilities that come along with creating and running a nonprofit. These can’t be overstated, and include:

Cost

Creating a nonprofit organization takes time, effort, and money. Plus, keeping a nonprofit on track, compliant, and successful also requires great care.

Paperwork

A nonprofit is required to keep detailed records and submit annual filings to the state and IRS by stated deadlines to keep its active and exempt status. 

Shared control

Although one who creates a nonprofit may want to shape his/her creation, personal control is limited. A nonprofit organization is subject to laws and regulations, including its own articles of incorporation and bylaws. A nonprofit is required to have a Board of Directors, who in turn determine policies. 

Scrutiny by the public

A nonprofit is dedicated to the public interest, therefore its finances are open to public inspection. The public may obtain copies of a nonprofit organization’s state and federal filings to learn about salaries and other expenditures. Nonprofits must be transparent in nearly all their actions and dealings.

Continue the discussion

I hope this information is helpful to you as you begin this journey. It won’t always be easy (although I will attempt to make it as simple as possible for you!), but it will be worthwhile.

I would enjoy the opportunity to be of service to you. Thank you for your time and attention. If you have any questions or concerns, please contact me. As I told you this morning, I offer anyone/everyone a free one-hour consultation. Simply reach out to me anytime via my cell, 515-371-6077, or my email, gordon@gordonfischerlawfirm.com.

Warmest regards,

Gordon Fischer

Gordon Fischer Law Firm, P.C.