Tips & Strategies for Starting a Nonprofit Organization in California

Transcription

1 Tips & Strategies for Starting a Nonprofit Organization in California For Purpose Law Group A Professional Law Corporation th Street San Diego, CA (619) info@forpurposelaw.com

2 1 2 the Author About May L. Harris, Esq., M.A. Ms. Harris is currently in her sixteenth year of legal practice, and has over a decade of executive, development, and leadership experience within the nonprofit sector and within socially innovative businesses. Graduating from the University of San Diego School of Law in 2000, and earning her Master of Arts degree in Nonprofit Leadership and Management in 2010, Ms. Harris provides an unique insight to the firm's clients, approaching issues not only from a legal or regulatory perspective, but also from a practical, management oriented view. 2 For nonprofit clients, this full spectrum approach assures that they receive practical, real world advice they can apply immediately with staff, board members, share-holders or donors to establish, protect, and grow their for purpose organizations. For emerging social enterprises, this means you have access to more than just another "business attorney." Ms. Harris spends many hours volunteering her services, and serving those in need. Believing that philanthropy and service is a life-long endeavor to be modeled, she has served in Guatemala and Jamaica with her children on medical service trips, and she volunteers with her daughter in SPRITES, a mother-daughter philanthropic organization. She also serves as President of USA Rugby Trust. Ms. Harris is a member of the District of Columbia & California Bar Associations, and the county bar associations in San Diego, Los Angeles and Orange County. She is also a member of the Taxation Section and the Tax Exempt Organizations Standing Committee.

3 How wonderful that no one need wait a single moment to improve the world. ~ Anne Frank a little bit about the challenges of the sector You have the passion and the purpose to make a difference in the world to solve a glaring problem in your community, or to improve the well-being of the world. So you begin by thinking you need to start a nonprofit organization. Congratulations! Your intent is wonderful unfortunately, you have a convoluted and somewhat confusing road to travel to get your nonprofit organization established and compliant with state and federal law. Starting and operating a start-up or new nonprofit can be incredibly challenging. Not only is the nonprofit sector a highly competitive and highly regulated one, but a newly formed nonprofit is joining a list over 1.5 million nonprofit organizations already registered with the Internal Revenue Service (IRS). Perhaps more eye opening is the statistic that the likelihood of establishing a successful nonprofit in the long-term can be quite low. In his book, The Zone of Insolvency: How Nonprofits Avoid Hidden Liabilities & Build Financial Strength, author Ron Mattocks postulates that only one-third of nonprofits survive beyond five years and as many as one-third of registered nonprofits operate in the zone of insolvency. Add to these practical difficulties the incredibly complicated legal and regulatory filing requirements demanded of the sector by state and federal governments and you start to understand the challenges you face. For example, the IRS recently revoked the exempt status of over 275,000 previously exempt organizations simply for their failure to file annual reports for three consecutive years and new organizations are added to the list every day. In addition to the annual filings required by the Internal Revenue Service (IRS), there are also annual filings required by the California Franchise Tax Board, the California Secretary of State and the California Attorney General. As most founders and directors of nonprofit organizations are volunteers with a great deal of passion for their purpose, many cannot navigate the many filings, requirements and disclosures currently demanded of nonprofit managers. It speaks to the desire of people to contribute to their communities that despite these challenges, new nonprofits can be vibrant, sustainable, and make a significant impact in an array of locations - within schools, communities, museums, homeless shelters, food banks, and so much more indeed, as Margaret Mead so famously said, Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it's the only thing that ever has. 3

4 Tips & Strategies Before starting a 501(c)(3) organization, consider Crafting and defining your Mission and Vision: A 501(c)(3) organization must be organized exclusively for one or more qualifying exempt purposes (e.g., charitable, educational, scientific, literary, and/or religious). Consider whether the mission you ve crafted is consistent with what is an exempt purpose within the meaning of the Internal Revenue Code. For example, simply helping people may not necessarily be charitable for purposes of tax-exemption. Identifying who you will serve: A 501(c)(3) organization must serve a charitable class of individuals or groups, rather than either private interests or the personal interests of its founder(s). Identify the class of people you seek to serve, and ensure they meet charitable criteria. Determining how you will operate: A 501(c)(3) organization must be primarily operated for one or more qualifying exempt purposes as set by the Internal Revenue Code. Thus, the core activities should be in furtherance of the organization's exempt purposes. A primary activity of providing services in direct competition with traditional for profits entities, for example, may or may not be consistent with this requirement. Finding out if you are alone: A new nonprofit should not merely duplicate what is already out there. Understanding your place in the sector not only helps the organization to differentiate itself from others, but may also generate ideas about collaborations that better further the mission. One strategy for success may very well be approaching an organization already in operation whose mission is parallel to your own, and combining your efforts. Assessing if you have a path to sustainability: While funding is almost never a sure thing, even for a well-established nonprofit organization, you should take reasonable steps (as if it was your own money) to assure charitable funds are not wasted for lack of consideration about sustainability. Ask yourself, How certain am I about receiving financial support in the future? 4

5 Tips & Strategies, continued Before starting a 501(c)(3) organization, consider What are your Current and Future Resources? A nonprofit built on a shaky foundation can later learn that everything built on top of it is in jeopardy. Critical building blocks include human resources to govern the organization (board of directors), run the charitable programs (staff and/or volunteers), ensure legal and regulatory compliance, and to fundraise. These building blocks many times include various organizational consultants, accountants, and lawyers. Drafting a simple business plan: It doesn t have to be any longer than a page, but you should craft a work-in-progress business plan that includes a relevant SWOT analysis (i.e., evaluation of strengths, weaknesses, opportunities & threats), a preliminary marketing plan, and a three-year prospective budget (you ll also need this for the IRS exemption application). Educating yourself on the legal landscape: Important laws that are applicable to nonprofit organizations include those related to the board (duties and responsibilities, areas of potential liability, filing requirements, conduct and activity restrictions) staffing (human resources & employment) and operations (charitable solicitations, certain applicable taxes, substantiation and disclosure requirements, intellectual property, contractual obligations and leasing). Understanding your options: Alternatives to formation may include working with an existing organization (e.g., volunteering), fiscal sponsorship, or a donoradvised fund. This may be particularly attractive if you're weak in the essential, but often downplayed, areas of administration and legal compliance. Deciding upon a legal structure: Again, you do have options. The legal form of the organization can vary. For example, the nonprofit may be incorporated or unincorporated under state law and it may or may not have a voting membership structure. Such decisions carry different benefits and challenges. 5

6 Common Issues for Startups GOVERNANCE COMPENSATION Executive Compensation Executive compensation is a highly scrutinized topic in the nonprofit sector and the IRS uses certain rules for determining the reasonableness of compensation and when to impose penalties for Just as you wouldn t rely on a Toyota excessive pay. manual to operate and run a Organizations should take advantage Lamborghini, you shouldn t rely of certain precautionary measures upon templates or other organization s governance documents made available by the IRS such as the to run and operate your organization. rebuttable presumption of reasonableness to better ensure the It is often a mistake to copy these compensation is reasonable and documents, in whole or in part, protect charitable assets. unless reviewed by an attorney. The organization s governing documents (e.g., articles of incorporation, bylaws, policies) are the organization s how-to manuals on how best to manage and operate the organization. Regular attention to strengthening the board (e.g., new board member orientation, ongoing education and training) is an often-neglected key component to better governance and a healthy organization 6 FUNDRAISING Charitable Solicitations A commonly overlooked requirement is applicable charitable registrations as an organization expands its fundraising efforts. Consider where you plan to engage in charitable solicitations and check whether you must register to solicit donations in those states. Further, many nonprofits utilize gaming activities like raffles, bingo, or other casino type games of chance to raise funds. If you do BEWARE! There are a great many obstacles to overcome when planning fundraising activities like this in order to make them legal and to ensure your volunteers are not unwittingly committing a crime.

7 Our Unique Approach Your purpose is different from a traditional corporation. Your legal counsel should be different, too. Nonprofit organizations come in many different forms (association, corporation, joint venture LLC) and can be often be exempt from income taxation under various provisions of the internal revenue code. Whether you are a public charity under section 501(c)(3) or a social club under 501(c)(7), you need legal counsel that understands your unique situation. Formations For Purpose Law has a great deal of experience forming various types of nonprofit organizations, including California Nonprofit Public Benefit Corporations, Nonprofit Mutual Benefit Corporations, and unincorporated nonprofit associations. For simple formations, we offer an easy flat-fee engagement with no hidden costs or surprises. Outside General Counsel The For Purpose Law Group has expertise representing nonprofit and exempt organizations in most transactional matters, including human resources, contract preparation and review, trademark protection and corporate compliance. Traditional Hourly Representation The For Purpose Law Group also offers traditional legal representation on an hourly basis, with an upfront deposit. This fee structure is appropriate for more complex legal matters, including legal opinion letters, dissolutions, or preparation for litigation. 7

8 We d love to answer your questions. Just drop us a line. info@forpurposelaw.com (619) For Purpose Law Group th Street San Diego, CA info@forpurposelaw.com