Starting a Nonprofit in Central Texas: A Resource Guide

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1 Starting a Nonprofit in Central Texas: A Resource Guide Start up Questionnaire The Nonprofit Sector in Central Texas Step by step instructions for incorporating and start up Frequently asked questions (FAQ s) about nonprofit start up issues Resources for starting a nonprofit Updated September 2010

2 In the United States in 2009, nonprofit organizations are estimated to have employed 10% of the workforce, and generated around $1.4 trillion in annual revenues. 1 The nonprofit sector is substantial, especially considering that these efforts were generated from the generosity and hard work of donors, volunteers, and visionaries like you. This toolkit provides materials that can assist you in planning and implementing a new nonprofit. Included in this toolkit are: 1. A questionnaire to assess whether starting a nonprofit is the right thing for you 2. A snapshot of the nonprofit sector in Central Texas 3. Step by step instructions for incorporating and start up 4. Resources for starting a nonprofit 5. Frequently asked questions (FAQ s) about nonprofit start up issues 6. List of resources for nonprofit management This toolkit provides information about Tax issues Legal issues Skills needed to start up a nonprofit Stages of organizational growth There are many other roadmaps about nonprofit incorporation available on the web and throughout the country. This roadmap focuses on nonprofit incorporations in Texas. This resource guide includes basic information and recommendations of additional resources. Each section of this resource guide can be used as a stand alone resource or as part of a set of tools to assist you. As you move ahead, be aware that there are many resources available to assist. Greenlights provides customized consulting to Central Texas nonprofits, however Greenlights does not provide start up assistance. Find out more at The Alliance for NonProfit Management national resource directory: Austin Young Lawyers legal resources: Texas CBAR legal resources: Texas Secretary of State s Office comprehensive information and FAQ s: Internal Revue Service: pdf/p557.pdf 1 Start up Resource Guide Page 2

3 I. Questions for Starting a Nonprofit Organization Answering these questions may assist you in focusing your efforts to begin a new enterprise. At the end of this exercise you will have a more realistic sense of what it takes to incorporate a nonprofit, and whether or not this is the route to take to address the community issues you are concerned about. 1. What are your reasons for wanting to start a nonprofit organization? It should be because there s a need no one else is addressing in your unique way. 2. What will be the charitable purpose of the organization? Is this purpose currently being served by an existing organization 2? Without a clear charitable purpose you may not be able to get 501(c)(3) nonprofit status. 3. Who are you planning to serve? Who else is working with this group or in this topic area? Knowing your target market and learning who else is serving this market helps you determine if you are designing a unique service. For Central Texas see I Live Here, I Give Here for a list of area nonprofits. 4. What service are you planning to offer? Who else offers similar services? Again, it s really important to determine if there s already a resource to address the need you have identified. You may want to join with them to help launch your work. 5. Have you contacted other organizations working with the same group offering similar services? What are they doing right? What are they doing wrong? This process helps you define how your idea may be more unique or more effective. 6. Is starting and incorporating a new nonprofit organization the best option? Can your efforts be better served working for or in partnership with an existing organization? There are other ways to get your idea implemented. Many of these make it easier for you to concentrate on your idea and spend less time having to work on management. 7. Have you considered the costs involved in starting an organization? 3 Do you have the means of covering these costs? Working through a three year budget is a part of incorporating. 8. Do you have the help and support of others to assist you in your startup efforts? 2 See Guidestar for a listing of nonprofits and their efforts: 3 See Minnesota Council for Nonprofits chart for filing fees and budgets: Start up Resource Guide Page 3

4 Cast a broad net for assistance you ll find out more about what others are doing, and there s strength in numbers! 9. Have you contemplated the development of the Board of Directors? How many board members will you have? In Texas you must have at least three board members. 4 Who would be an appropriate board member? How will the board be organized? Do you know the regulations or laws that will govern your specific enterprise? How do you plan on addressing these 6? 11. Do you know the step by step process for incorporating, filing for an employer identification number, or obtaining income and sales tax exempt status 7? Do you understand how much time it takes to apply and how long it takes to get a determination? 12. What are your long term goals of your nonprofit? Where do you foresee your organization in 5 years? Which of these goals requires your involvement and/or leadership, and what is your sense of how you will be involved as this initiative grows? II. A Snapshot of the Nonprofit Sector in Central Texas Additional information is available on the Internet and in the library about nonprofit sector statistics. Published by the Center for Civil Society Studies 8 at Johns Hopkins University, the Nonprofit Economic Data Bulletin report presents for the information on the size, composition, distribution, and average wages of paid employment in the Texas nonprofit sector. Some key findings to consider: The nonprofit sector employs nearly 1 out of every 25 paid workers more than are employed by the Texas state government, and 6 times as many as are employed by the state's entire oil and gas industry. 4 Texas Secretary of State: 5 Minnesota Council for Nonprofits: 6 Texas C BAR and Texas Association of Nonprofit organizations: 7 IRS: and Texas Government (Secretary of State s office): Start up Resource Guide Page 4

5 In 2004, 384,545 nonprofit employees in Texas (4.1% of the total workforce in Texas) earned over $12.5 billion in wages. While nonprofit employment is primarily concentrated in Texas metropolitan areas, it is not restricted to one region. Rather, it is distributed throughout the state. 55% of Texas nonprofit employment is in health services; 13% is in social services. The average weekly wages of workers in nonprofit organizations are 13% lower overall than those of for profit workers, and 7% lower than those of government workers. This is partly due to the fields in which nonprofits operate. When nonprofit and for profit wages are compared within particular fields, such as social services or home health care, average nonprofit wages are sometimes higher. The number of reporting charitable nonprofits with 501(c)(3) tax exemptions in Texas grew from 33,000 in 1996 to 71,834 in III. Step By Step Starting a Nonprofit Organization Special thanks to the Minnesota Council on Nonprofits (mapfornonprofits.org) for major parts of this checklist. Also view Step 1. Determine if starting a nonprofit is the best option. Other alternatives, including collaborating with an existing nonprofit organization, establishing an informal club or association (a viable option for groups with annual budgets under $25,000), finding a fiscal sponsor, or forming a for profit business, may achieve your objectives quicker or more efficiently, resulting in the best benefit for your target audience. Step 2. Decide on the purpose and the mission of your organization. The purpose of a charitable nonprofit must be for the public interest and common good. It should establish a single mission and a set of goals and programs that will accomplish that mission. A mission statement should be brief, timeless, and descriptive of what the organization is trying to accomplish. This statement will guide the organization through its initial formation, program development, growth and change. Step 3. Recruit and develop a Board of Directors. The initial Board of Directors will assume much of the responsibility in starting a new nonprofit. They will determine the direction and goals of the organization and set forth precedents for future board members. The first board writes the articles of incorporation and approves the original bylaws, does much of the initial fundraising and hires staff as the organization takes shape and becomes an entity in and of itself. 9 Start up Resource Guide Page 5

6 Step 4. Decide on and reserve a name for your organization. Not only is it Texas law, it is crucial to your new organization's identity to obtain a unique name under which to operate. Organizations should reserve a unique name through the Texas Secretary of State s Office. The Secretary of State can provide a preliminary determination on name availability, you Form 501 may call (512) or e mail your name inquiry to Once a name is reserved, no other organization may use that name. To reserve your organization's name, fill out Form 501 "Application for Reservation of Entity Name" available from the Texas Secretary of State or online. 10 The filing fee for this form is $40. Reserving a Name Secretary of State Fee: $40 Step 5. Write the Articles of Incorporation. The founders of the organization should draft the Articles of Incorporation. This document formally names the entity, its location, and its purpose. This document is the legal record of how the organization is to be managed. Texas Business Organization Code Title 2: Chapter 22. Nonprofit Corporations details the laws that govern Texas nonprofit corporations. 11 It is important to remember when drafting the original articles of incorporation that parts of the Business Organization Code state the default laws that nonprofits must follow, unless their articles or bylaws state otherwise. The Texas Business Organization Code can be found online. 12 It is necessary to write and file the articles of incorporation prior to applying for taxexempt status from the Internal Revenue Service. The IRS requires specific language be used describing the charitable purpose of the organization, and the requirements it must follow for exemption. The sample articles of incorporation provided by the Secretary of State s Office do not include this information. Forms for this can be found online at Step 6. Incorporate as a nonprofit organization. A primary purpose of incorporating an organization is that of risk management. Filing articles of incorporation with the Texas Secretary of State s Office provides a limited liability for the governing body of the organization. If directors act in a responsible, reasonable way, they can avoid personal liabilities to creditors of the organization. However, this exemption from liability does not include debts to the Internal Revenue Service for due payments, or due to fraudulent Form 202 Articles of incorporation Secretary of State Fee: $ Start up Resource Guide Page 6

7 activities. Incorporating an organization also provides stability during personnel changes, eases future relationships with funders, contractors and employees, and provides the means to apply for tax exempt status through the IRS. To incorporate, complete Form 202 "Articles of Incorporation Non Profit" available from the Texas Secretary of State or online. 13 The filing fee is $25. Step 7. Create a business plan with a budget. Creating a thoughtful business plan during these beginning stages of a new nonprofit can provide a sense of direction to the organization as it develops. A plan should include what the organization s goals are, what programs it will operate, where it will get funding, where and will it conduct events, will the organization have staff, volunteers, and more. It should also include a budget plan that addresses key questions such as: Will programs rely on grants, individual donations, state or federal contracts? What expenses will the organization incur? Go to your library or bookstore, or contact Greenlights to review resources that guide you in business planning. A business plan and budget are not only useful in thinking through the structure of the organization, but they are required as part of the narrative section of IRS Form 1023, Application for Tax Exempt Status. Step 8. Apply for Federal ID Number (EIN). Nonprofit organizations should have an EIN (Employee Identification Number), often referred to as a Federal ID Number, even if it has no employees. The EIN acts similarly to the social security number for individuals and may be requested when opening a bank account or in other fiscal operations. Organizations must receive their EIN before filing Form 1023 (see Step 10). To obtain a Federal ID number, complete IRS Form SS 4 Application for Employer Identification Form SS 4 Application for EIN IRS Fee: $0 Number (EIN) available at your local IRS office or online 14. Organizations must be incorporated prior to applying for an EIN. There are no filing fees. To apply online, go to: pdf/fss4.pdf Start up Resource Guide Page 7

8 Step 9. Draft the corporate bylaws. The bylaws will serve as the rulebook for the nonprofit. The Texas Business Organizations Code includes a chapter on Texas nonprofit law (Chapter 22), and the organization s bylaws should follow this statute. There is substantial flexibility to writing the organizational bylaws to fit the uniqueness of an organization. They are flexible and relatively easy to amend as the organization changes and grows. Bylaws are much easier to amend than the articles of incorporation and should be reviewed frequently. This document should be more detailed than the articles of incorporation and address the following organizational issues: Membership if the organization will have members, who they are, how/when membership meetings will occur, what notice is required for meetings, requirements of a special meeting, quorum, and voting. Board of directors number, election process, meetings, length of term, number of terms allowed, vacancies, removals, quorum, officers, and standing committees. Fiscal management fiscal year, and committee/officer responsibilities, compensation of directors, reporting requirements and dues. Amendments how will amendments be made and approved Another tip: Find and talk to other organizations like yours. Whoever did the paperwork or inherited it will tell you which details are important to the functioning of your type of organization. An "umbrella" organization that acts as a channel for money has vastly different needs from a specific affinity group (ex: Russian Speakers Club). One might suggest appending the word "Inc" to their corporate name, the other could care less. Step 10. Hold first meeting of the board. The first official meeting should consist of the initial board members or incorporators. This gathering marks the official start to the organization. At the first meeting of the board, the initial board members must approve the drafted bylaws and adopt its principles. The new organization will also vote on new board members and officers as it is called for in its bylaws. Once these activities are accomplished, the board should begin tackling the mission and start the process of obtaining tax exempt status, which is explained next. Step 11. Obtain income tax exempt status from the IRS. Once the organization's articles of incorporation have been filed and the bylaws have been approved by the initial board of directors, the next step for a new nonprofit is Start up Resource Guide Page 8

9 applying for federal tax exemption from the Internal Revenue Service. A common myth is that all nonprofit organizations are automatically granted a tax exemption. There are several steps and filing requirements an organization needs to complete before receiving exemption. And even then, not all organizations qualify for the same exemptions. The following applies for 501(c)(3) status from the IRS, the most common type of tax exempt organization. First, obtain IRS Publication Tax Exempt Status for Your Organization. This 55 page document includes no forms to file, but lays out the federal laws regulating taxexempt organizations. It is available for free and serves as a useful reference guide for filing requirements, employment issues, lobbying expenditures, and many other complex nonprofit issues regulated by IRS codes. Second, get copies of IRS Form and Form Application for Recognition of Exemption under 501(c)(3) of the Internal Revenue Code. Form 1023 applies for a ruling or determination letter on an organization s exempt status under Section 501(c)(3). This package of forms contains both Form 1023 and Form 8718 (User Fee for Exempt Organizations Determination Letter Request). Form 8718 is used to process the fee for applying for tax exempt status and must be included when filing Form Organizations applying for exemption under another 501(c) section should file IRS Form The filing fee is $850 for organizations anticipating gross receipts averaging more than $10,000 during its first four years and $400 for organizations anticipating gross receipts averaging less than $10,000 Form 1023 Application for Recognition of Exemption IRS Fee: $ Form 8718 Exempt Organizations Determination IRS Fee: included w/ form 1023 during its first four years. IRS Form 1023 and 8718 must be submitted together. Processing time varies, but can take six months. Mail the forms to IRS, PO Box 12192, Covington, KY Forms for this: pdf/p557.pdf 16 pdf/f1023.pdf 17 ter_request.pdf Start up Resource Guide Page 9

10 Texas Filings: Step 12. Apply for sales tax exemption from the state. Some (not all) nonprofits qualify for exemption from sales tax on purchases through the Texas Comptroller of Public Accounts. 18 This exemption allows the purchasing, leasing, and renting of taxable items that are necessary to the exempt function of the organization without paying sales and use tax. No item purchased by an exempt organization may be used for the personal benefit of a private stockholder or other individual. To obtain sales tax exempt status, an organization must write to the Comptroller's office requesting exempt status from limited sales, excise, and use tax. There is no application form. The written request must be accompanied by the following information: A detailed description of the activities conducted; A copy of the articles of incorporation, if the organization is a corporation; A copy of the organization's by laws, if the organization is not a corporation; Any other information requested by the Comptroller including, but not limited to, all services performed for the organization, and all income, assets, and liabilities of the organization; and/or A copy of the letter from the U.S. Internal Revenue Service granting the organization an exemption under sections 501 (c)(3), (4), (8), (10), or (19) of the Internal Revenue Code. The Comptroller will send an organization written notification of a decision on its request for exempt status. Step 13. Apply for franchise tax exemption Same process as Step 12 Step 14. Apply for property tax exemption Same process as Step 12. This is not an automatic exemption for nonprofits; see the application form for the types of nonprofits that may qualify. Step 15. Register as a charity. Under Texas law, most charities or non profit organizations are not required to register with the state. Exceptions exist, however, for organizations that solicit for law enforcement, public safety or veterans causes. Registration with the Office of the Attorney General or the Secretary of State does not imply approval or endorsement of the organization or its solicitor. Registration forms are available through the Texas Attorney General s office, Details provided at: Start up Resource Guide Page 10

11 Annual Filings: Step 16. File annual reports Annual reporting ensures nonprofits are held accountable for their charitable fundraising and annual expenditures. Qualifying organizations must submit the following documentation annually. A. IRS Form 990 Return of Organizations Exempt from Income Tax Even though a nonprofit organization may be tax exempt, it must file an annual tax return with the Internal Revenue Service. Generally, charities with more than $100,000 in gross revenues and more than $250,000 in total assets must file the Form 990; smaller charities may file the EZ Form. This is the most detailed and most misunderstood filing for nonprofits. It is the most complete documentation of an organization s financial history and is often used to hold the organization accountable for its past actions and future decisions. Recent rulings by the Internal Revenue Service state that nonprofit organizations must make their Form 990 and applications for tax exempt status widely accessible and available to anyone who requests. There are no filing fees but severe penalties apply for filing late or failing to file. B. (OPTIONAL) Get your name in the local and national directories: Update your Guidestar listing this is a national website presenting IRS 990 information and other business information about nonprofits throughout the country. They ll post information directly, but you might want to update your own materials. Call to get on their list. 211 First Call For Help is a database of some 2,000 groups serving Central Texas: 1 1/ For Central Texas, contact I Live Here, I Give Here to add yourself to the list of area nonprofits. C. Final Determination: After five years you need to contact IRS again and demonstrate that you are publicly funded. They will then change your status from an Advance Ruling to a full ruling for 501 c 3 status. Start up Resource Guide Page 11

12 IV. Frequently Asked Questions for Start Up Nonprofits Q: What s the difference between the articles of incorporation and the bylaws? Answer: The articles of incorporation set up the basic terms of the corporation, such as its purpose and board of directors. The bylaws are the rules the organization adopts by which to govern itself. The articles serve like the organization s declaration of independence and the bylaws are like its constitution and laws. Q: We are just a small group, do we need bylaws? Answer: No. Bylaws are not required but can help define the organization and its governance structure. If questions arise down the road, bylaws can help future staff and board members determine the actions that must occur. Q: How often should a board meet? Answer: Boards can meet monthly, bi monthly, quarterly, or annually. Your meeting schedule should be explained in your bylaws and should be selected to meet your organization s needs. Q: Why should I incorporate my organization? Answer: Benefits to incorporating include the ability to purchase property, accept donations, enter into contracts, and formally dissolve when appropriate. Incorporating also provides limited protection to the governing body of the organization, as long as no wrongdoing by the board has occurred, they cannot be held liable. Q: Can I take donations for my project before I get my nonprofit tax exemption? Answer: Yes, there is a 15 month retroactive period. Q: When I become a nonprofit, do I still need to pay taxes on my employees? Answer: You must always pay payroll taxes and file an annual Form 941 with IRS. Q: What are other ways to make my project happen without having to go through all the work of becoming a nonprofit? Answer: Consider getting another nonprofit to sponsor your project as part of their programming, or look for a fiscal sponsor that will umbrella nonprofit initiatives. Start up Resource Guide Page 12

13 Q: Where can I get free legal help? Answer: Texas nonprofits working to address issues in low income communities can access attorney resources through Texas C BAR ( Austin Young Lawyers Association also provides services. ( Q: How many board members do I need to become a nonprofit? Answer: You need 3 people 2 officers and one at large member. Q: What is the difference between a nonprofit and an operating foundation? Answer: Private operating foundations are private foundations that use the bulk of their resources to provide charitable services or run charitable programs of their own. They make few, if any, grants to outside organizations and, like private independent and private family foundations, they generally do not raise funds from the public (see Council on Foundations for definitions of other types of foundations). Q: How do I demonstrate that I am publicly funded so that I can keep my nonprofit status? Answer: Nonprofits must be publicly supported from a variety of sources. Funds from a variety of individuals, foundations, or other private contributors. No one contributor can provide more than 40% of your funding. Look at the IRS public support test Form 8734 or IRS Form 990 instructions for details. Q: What taxes is my organization exempt from? Answer: You can apply to be exempt from sales tax, sometimes you can be exempt from property tax and sometimes you can be granted exemption from franchise tax. You must apply for these exemptions separately. Start up Resource Guide Page 13

14 V. Resources for Starting a Nonprofit Business Filings Incorporated Business Filings provides Incorporation services over the Internet. Services include providing information on incorporation and business formation, outlining the costs associated with incorporating, and preparing and filing the documents needed to incorporate. Website: Phone: The Foundation Center The Foundation Center's mission is to support and improve philanthropy by promoting public understanding of the field and helping grant seekers succeed. The center collects, organizes, and communicates information on U.S. philanthropy, conducts and facilitates research on trends in the field, and provides education and training on the grantseeking process. Address: The Foundation Center 79 Fifth Avenue/ 16th Street New York, NY Phone: Website: offers consulting, education, networking and information services to help central Texas nonprofits maximize their strengths and achieve their potential. Through a comprehensive toolkit of resources, Greenlights provides the know how nonprofits need to gain a sure footing in today s changing nonprofit world and build a powerful foundation for tomorrow. However, Greenlights does not provide start up services, but once established a nonprofit can join as a member and receive various benefits. Address: Greenlights for Nonprofit Success 7703 N. Lamar Blvd., Suite 400 Austin, Texas Phone: Website: Start up Resource Guide Page 14

15 Hogg Foundation Regional Library The Hogg Foundation for Mental Health at the University of Texas at Austin maintains an extensive library about foundations and nonprofits. They are one of the regional foundation libraries sponsored by the Council on Foundations. Call or e mail them about their regular startup classes. Address: Hogg Foundation Library Regional Foundation Library 1009 East 11th Street, 2nd Floor Austin, TX Phone: Website: Independent Sector Independent Sector is an organization that promotes effectiveness within the nonprofit sector, providing materials on leadership and management, data on giving trends, and other information. Address: Independent Sector 1602 L Street, NW, Suite 900 Washington, DC Phone: Website: National Center for Charitable Statistics The National Center for Charitable Statistics (NCCS) is the national repository of data on the nonprofit sector in the United States. Its mission is to develop and disseminate high quality data on nonprofit organizations and their activities for use in research on the relationships between the nonprofit sector, government, the commercial sector, and the broader civil society. Address: NCCS The Urban Institute 2100 M Street NW, 5 th Floor Washington DC Phone: (toll free) Website: Start up Resource Guide Page 15

16 Nonprofit Risk Management Center The Nonprofit Risk Management Center was established in 1990 to provide assistance and resources for community serving nonprofit organizations. As a nonprofit, the Center is uniquely positioned to both understand and respond to questions with practical, affordable suggestions for controlling risks that threaten a nonprofit s ability to accomplish its mission. Their mission is to help nonprofits cope with uncertainty. They offer a wide range of services (from technical assistance to software to training and consulting help) on a vast array of risk management topics (from employment practices, to insurance purchasing to internal controls and preventing child abuse). Address: Nonprofit Risk Management Center 15 N. King St., Suite 203 Leesburg, VA Phone: Website: San Antonio Area Foundation: Center for Nonprofit Support The Center is a one stop resource for board members, staff, and volunteers of nonprofit organizations. From a basic question about grants to a strategic plan for the future the Center can help you and your organization. Client s range from emerging nonprofits to established organizations and everything in between. This San Antonio based organization publishes an annual directory of Texas foundations. Address: CNS 110 Broadway Ste 230 San Antonio, TX Phone: Website: Texas Association of Nonprofit Organizations The Texas Association of Nonprofit Organizations (TANO) was founded in 1997 as a statewide association that reflects and promotes Texas growing independent sector in all its diversity. Its mission is to serve, support, and strengthen the state's nonprofit sector. Check out their fact sheets about charitable organizations. Address: TANO 8001 Centre Park Dr. Austin, TX Phone: Website: Start up Resource Guide Page 16

17 Texas C Bar Texas C BAR provides free legal assistance to Texas nonprofits working to improve the quality of life in low income neighborhoods. They recruit experienced transactional attorneys, who volunteer to help these organizations with their real estate, tax, corporate, and employment law needs. The C BAR website has tools and templates about how to form a nonprofit, sample bylaws, and more. They will provide legal expertise if a nonprofit is focused on serving lowincome communities. Address: Texas C BAR 4920 N. IH 35 Austin, Texas Phone: Website: Start up Resource Guide Page 17

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