The Basics of Forming a Non-Profit Counseling Corporation Ann Tran, JD., Staff Attorney

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1 The Basics of Forming a Non-Profit Counseling Corporation Ann Tran, JD., Staff Attorney The Therapist November/December 2009 Throughout California, non-profits provide vital services that help keep the fabric of society together. In non-profit counseling corporations throughout the state, individuals, couples, and families receive the therapy services they need to keep their lives moving in a positive direction. Aside from being the thread that helps hold the fabric of society together, non-profits also provide employment and training opportunities to licensees, interns, and trainees. Many therapists understand the importance of non-profits to communities and they may even desire to start new non-profits, but they may not know where to begin. This article discusses the basics of organizing a non-profit public benefit counseling corporation in California. If the non-profit is organized primarily for a charitable and/or public purpose and plans to obtain state tax exempt status and/or federal tax exempt status, it is known as a California non-profit public benefit corporation. California Corporations Code Sections govern California non-profit public benefit corporations. It is advisable for therapists who are interested in forming a California non-profit counseling corporation to consult with an attorney who specializes in the non-profit sector and/or business planning. Careful planning for organizing a non-profit corporation is essential. A few matters the organizer(s) should give careful consideration to before launching a non-profit corporation include, but are not limited to: What purpose(s) will the non-profit serve? What is the mission of the non-profit? Is there a need in the area? Is there a target community? What funds are available to support the non-profit s efforts? Is there a budget plan for the initial operating year? Are there directors who are committed to governing the non-profit? What are the long-term goals for financing the non-profit? Is there a business plan? Will the non-profit hire employees? How will employees be hired, paid, trained, and managed? The Formalities Name Availability The organizer(s) of the non-profit corporation should decide upon a business name and check to see if the business name is available by mailing in a Name Availability Inquiry Letter to the California Secretary of State s office. The name can also be reserved for a period of 60 days by mailing in a Name Reservation Request Form. The non-profit corporation name may be adopted if the name is not the same as or too similar to an existing name on the records of the California Secretary of State. Further, the name of the non-profit may not be misleading or deceptive to the public. Forms and information regarding name availability and filing can be found on the California Secretary of State website at It is recommended that corporation signage, business cards, and business letterheads not be ordered until the appropriate The Basics of Forming a Non Profit Counseling Corporation Page 1

2 formation and registration documents are submitted to and filed by the California Secretary of State. Articles of Incorporation One or more persons may form a non-profit corporation in California. 1 The organizer(s) of the non-profit must execute articles of incorporation and file the articles with the Secretary of State either in person at one of the regional offices or by mail to the Sacramento office. An additional copy is required for the Secretary of State to forward to the Attorney General. 2 The articles of incorporation must include, 1) the name of the corporation; 2) the following statement: This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the Nonprofit Public Benefit Corporation Law for [public or charitable (insert one or both)] purposes (note: if the purposes include public purposes, the articles must include a description of the corporation s purposes); and 3) the name and address of the corporation s initial agent for service of process. 3 If the initial directors have not been named in the articles, the organizer(s) of the non-profit must sign the articles. A sample of the articles of incorporation for a California non-profit public benefit corporation can be found on the Secretary of State website. The fee to file the articles of incorporation with the Secretary of State is $30. Statement of Information The non-profit corporation must also file a Statement of Information (Form SI-100) with the Secretary of State within 90 days after the filing of its original articles of incorporation. The corporation must file this form biennially thereafter, during the applicable filing period. The Statement of Information publicly discloses the following information: 1) the name of the corporation; 2) the street address of its principal office in California, if any, or the mailing address of the corporation, if different from the street address of its principal executive office or if the corporation has no principal office address in California; 3) the names and complete business or residence addresses of its chief executive officer, the secretary, and chief financial officer; and 4) the name and address of the agent for service of process. The form can be found on the Secretary of State website. The fee to file a Statement of Information is $20. Initial Organizational Meeting What is the next step after filing? The organizer(s) should hold an organizational meeting to appoint one or more directors to serve on the board. There must be at least one director for the non-profit. According to California law, no more than 49 percent of a board of directors may be interested persons. 4 An interested person is a director who is compensated by the corporation for services rendered to it as a full-time or part-time employee or independent contractor. For example, a non-profit counseling corporation may have a board of directors consisting of six directors. Of the six directors, no more than two directors may be compensated for providing therapy sessions as full-time employees of the non-profit. The law also covers close relatives of the director. The board of directors should also adopt bylaws at the organizational meeting. The bylaws generally set forth internal corporate rules and procedures. 5 A copy of the bylaws does not need to be filed with the Secretary of State, but a copy must be kept at the non-profit s principal place of business. (If the non-profit is planning to seek tax-exempt status with the IRS, a copy of the bylaws will need to be filed with the appropriate application.) Depending on limitations set by the bylaws, the activities and affairs of the non-profit corporation will be conducted and all corporate powers will be exercised by or under the direction of the board of directors. 6 The Basics of Forming a Non Profit Counseling Corporation Page 2

3 During the organizational meeting, the board of directors should also appoint the chairman or president of the board, a secretary, and a chief financial officer. Other officers may be appointed by the board to fulfill duties established by the board or the bylaws. 7 California law also requires non-profit corporations to keep books and records of accounts and minutes of its board of directors proceedings and actions. 8 Obtain Tax-Exempt Status The non-profit may be interested in seeking tax exemptions from federal income tax or California franchise tax, or both. Exemptions from federal income tax and California franchise tax are not automatically granted to a non-profit simply because the corporation filed articles of incorporation as a non-profit corporation. In order for a non-profit corporation to be tax-exempt, it must file for tax-exempt status and receive approval from the Internal Revenue Service (IRS) and/or the California Franchise Tax Board. Federal 501(c)(3) Tax-Exempt Status A non-profit corporation is generally taxed as a corporation pursuant to Internal Revenue Code Section 11, unless it has been granted tax exemption with the IRS. Section 501(c)(3) of the Internal Revenue Code is one of the federal tax law provisions that grant an exemption from the federal income tax to non-profit corporations (c)(3) exemptions apply to corporations organized and operated exclusively for the following purposes: religious, charitable, scientific, testing for public safety, literary, and educational, to foster national or international amateur sports competition, or for the prevention of cruelty to children or animals. According to the IRS, the term charitable includes relief of the poor, the distressed, and the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency. A non-profit counseling corporation organized and operated primarily to provide low-fee or pro bono therapy services to the financially needy or the distressed should qualify for 501(c)(3) tax-exempt status. In applying for an exemption as a charitable organization, the non-profit corporation must show that it is organized and operated exclusively for purposes that are beneficial to the public. The Organizational Test The organizational test is met if the articles of incorporation include language that states the purpose of the non-profit is one or more exempt purposes set forth in Section 501(c)(3). The articles of incorporation must also provide that the non-profit may not engage in substantial activities that do not further one or more exempt purposes. In addition, the articles must require the non-profit corporation to devote its assets to exempt purposes provided in Section 501(c)(3) in the event of the non-profit s dissolution. The Operational Test In order to meet the operational test, the non-profit must engage primarily in activities that accomplish the exempt purpose(s) set forth in the articles of incorporation. The non-profit s earnings may not benefit private shareholders or individuals. The assets of the non-profit must be dedicated to the exempt purpose(s) stated in the articles of incorporation. Additionally, the non- The Basics of Forming a Non Profit Counseling Corporation Page 3

4 profit may not dedicate a substantial part of its activities to attempt to influence legislation and may not participate in any campaign activity to support or oppose political candidates. The non-profit must file IRS Form 1023 to secure 501(c)(3) exemption. The form must also be accompanied by the required user fee payment. The user fee is $700, or $300 for non-profits that anticipate gross receipts averaging not more than $10,000 during their first four years. Some non-profits do not need to file an IRS Form 1023, including those non-profits that meet the tax exemption requirement and whose annual gross receipts do not normally exceed $5000. These non-profit organizations are automatically exempt without obtaining a letter of determination from the IRS. The non-profit must also file a copy of the articles of incorporation, a copy of the bylaws, and other required attachments along with Form An officer or director of the nonprofit must sign the application. If the non-profit files Form 1023 and accompanying documents within 27 months after the end of the month in which the non-profit was legally incorporated, and the IRS approves the application, the legal date of formation will be the effective date of the non-profit s exempt status. If the non-profit does not file within 27 months of formation, the exemption status will not be retroactively applied to the date of incorporation. Form 1023 and instructions can be accessed on the IRS website at California Income Tax-Exempt Status A non-profit corporation in California is a taxable entity and must pay the $800 minimum California franchise tax unless the non-profit corporation has applied for tax-exempt status with the California Franchise Tax Board and has received approval. Once the non-profit has filed its articles of incorporation with the California Secretary of State s office, the non-profit may then apply for tax-exempt status. If the non-profit has already received an IRS Determination Letter, the non-profit must mail the following documentation to the Franchise Tax Board in Sacramento: 1) a Submission of Exemption Request Application (FTB 3500A); and 2) a copy of the IRS Determination Letter. There is no filing fee. For state income tax purposes, the effective date of a non-profit s tax-exempt status will be no later than the federal effective date. If the non-profit has not received tax-exempt status with the IRS or if the effective date of federal tax-exemption differs from the incorporation date of the non-profit, then the non-profit must file 1) an Exemption Application (FTB 3500); 2) a $25 check or money order, payable to Franchise Tax Board; 3) a copy of the non-profit s articles of incorporation; 4) a copy of the bylaws or proposed bylaws; 5) a copy of the non-profit s budget or proposed budget; and 6) any other required information and supporting data identified in form FTB For additional information, visit the California Franchise Tax Board website at Register with the California Attorney General All charitable (public-benefit) corporations holding assets in trust for charitable purposes or doing business in California, with the exception of a few entities, must register with the Attorney General within 30 days of initially receiving assets, such as funds and property. The non-profit must complete and file with the Attorney General s Office 1) Form CT-1; 2) a copy of the articles of incorporation; 3) a copy of the bylaws; 4) a copy of the IRS Form 1023 (if submitted to the IRS); 5) a copy of the IRS Determination Letter (if received from the IRS); and 6) the initial registration fee of $25. The form and information about the California Attorney General can be accessed at Obtain an EIN The Basics of Forming a Non Profit Counseling Corporation Page 4

5 All corporations, including non-profit corporations, must obtain a federal employer identification number (EIN) from the IRS even if the corporation does not have staff. An EIN identifies a corporate entity for governmental purposes, similar to a social security number identifying an individual. The non-profit corporation may apply for an EIN online, by telephone, by fax, or by mail. Information regarding the EIN may be found on the IRS website. Obtain Local Property Tax Exemption Property owned and operated by California non-profit corporations that have secured 501(c)(3) tax-exempt status and are organized and operated exclusively for religious, charitable, scientific, or hospital purposes can be exempted (known as the welfare exemption) from local property tax. The Welfare and Veterans Organization Exemptions program is jointly administered by the Board of Equalization and the county assessor in California. For more information on the welfare exemption, visit the Board of Equalization s website at Secure a Business License All non-profit corporations should check with their local city or county to see if a business license is required in order to do business in that particular city or county. Hire Employees After corporate and tax filings, the non-profit may want to establish itself as an employer and hire employees. The non-profit counseling corporation may want to hire administrative staff, licensed therapists, trainees, and registered interns. The non-profit can hire or contract with licensed therapists as on-site supervisors for the trainees and interns, or they may allow the trainees and interns to acquire off-site supervision. In order to count hours of experience with off-site supervision, a letter of agreement between the trainee or intern, the supervisor, and the non-profit must be executed and filed with the trainee or intern s exam eligibility application with the BBS. Supervisors at non-profit counseling corporations may supervise an unlimited number of trainees or interns. The non-profit cannot require or permit employed or volunteer trainees and interns to lease or rent space, pay for overhead expenses, pay for supervision, or in any other way pay for the non-profit s obligations as an employer. 10 Note that trainees may get their hours of experience denied by the BBS if the trainee is employed by a non-profit that has not applied for tax-exempt status with the IRS or has been denied 501(c)(3) tax-exempt status. Some important employment issues for the non-profit to consider include, but are not limited to, understanding applicable federal and state laws, setting up payroll withholdings, providing benefit plans, establishing personnel policies and management structure, and obtaining liability insurance. All employers, including non-profits, are required to withhold federal income taxes and social security taxes from taxable wages paid to their employees. Employers must complete IRS W-4 Forms. Employers use the information on the W-4 Forms to determine the amount to withhold from each paycheck. Employers must provide their employees with an IRS Form W-2 for the calendar year. Additionally, all employers must withhold social security taxes from each employee s wages and match the amount withheld dollar for dollar. Employers also have to pay federal unemployment taxes for all wages paid to employees. Forms and federal tax withholding information can be found on the IRS website. More information regarding withholding social security taxes can be found at the Social Security Administration s website at Withheld taxes are to be deposited at an authorized commercial bank The Basics of Forming a Non Profit Counseling Corporation Page 5

6 depository or at a Federal Reserve Bank. See the IRS website for information on how to deposit employment taxes. Employers in California must also register with the California Employment Development Department (EDD) and obtain an EDD account number within 15 days after paying over $100 of taxable wages to one or more employees in a calendar year. Non-profit employers fill out Form DE 1NP. Wages consist of compensation for services performed, including cash payments, commissions, bonuses, and the reasonable cash value of noncash payments for services. Furthermore, all employers in California are required to file information about new employees with the New Employee Registry. Employers must report employees who are newly hired, rehired, or returning to work after leave. The reports must be filed within 20 days after hire, rehire, or return. Employers must have employees complete Form DE 4 (the state equivalent to the IRS W-4 Form) unless the information to be provided is the same as on their W-4 Form. Most non-profit employers are subject to unemployment insurance, employment training tax, state disability insurance, and personal income tax withholding. The taxes must be deposited with the state. See the EDD website for more information and forms for California employers at The non-profit employer must make sure that its employees are paid at least the minimum wage required by federal and California wage and hour laws. Those employees who are covered by the federal Fair Labor Standards Act of must be paid no less than $7.25 per hour. The Industrial Welfare Commission (IWC) governs the wages and hours in California. Effective January 1, 2008, the minimum wage in California is to be no less than $8 per hour. IWC also issues wage orders that dictate overtime rules. More information regarding the IWC can be found at California employers must follow the law that is most beneficial to employees. Some employees are exempt from federal and California wage and hour laws; the most common types of exemptions are executive, administrative, and professional exemptions. 12 If the non-profit corporation hires independent contractors and pays $600 or more to an independent contractor, it is required to report independent contractor information (on Form DE 542) to the EDD within 20 days. Keep in mind that trainees and registered interns cannot be hired as independent contractors. Trainees and interns must be employed by non-profits as employees or they may be volunteers. Trainees and interns who have been hired by non-profits and paid as independent contractors will have their hours denied by the BBS. 13 The non-profit may utilize trainees and interns as volunteers and reimburse them up to $500 per month for expenses actually incurred by the trainees and interns. The BBS may audit applicants who received reimbursement for expenses, and they must be able to demonstrate that the payments received were for reimbursement of expenses actually incurred. Federal and California law also require employers to post a number of important notices to their employees in a conspicuous location where employees may readily view the postings. Employers may provide medical and dental insurance as a tax-free benefit to employees and their dependents. Employees of non-profit corporations may also participate in a variety of deferred compensation plans, such as 401(k) plans. Although not mandated by law, employers should consider developing written personnel policies to clearly express the job classifications of employees, the expectations regarding employees job performances, and employees rights and obligations. Personnel policies should also discuss The Basics of Forming a Non Profit Counseling Corporation Page 6

7 hiring procedures, nondiscrimination policies, sexual harassment policies, performance review procedures, employment benefits, overtime, and paid leave, including vacation time, sick time, family leave, and medical leave. Obtain Insurance Every California employer is subject to California s workers compensation laws and must carry workers compensation insurance. The Division of Workers Compensation (DWC) governs the administration of workers compensation claims and provides services to resolve any disputes about workers compensation benefits. Under the worker s compensation system, employees are entitled to receive medical treatment for injuries that occur on the job regardless of fault, but are prevented from bringing a lawsuit against the employer for those injuries. See the DWC s website for more information at Furthermore, the non-profit should consider obtaining liability insurance to protect the non-profit s assets against business-related claims. Commercial general liability insurance typically covers medical expenses for bodily injury, property damage, personal injury, and advertising injury. Other insurance policies, such as professional liability insurance and directors and officers liability insurance are also available. Since counseling services are a main part of the non-profit s activities, the non-profit should strongly consider obtaining professional liability insurance. Professional liability insurance covers the non-profit for its professional employees for claims arising from professional services rendered at the organization. Directors and officers liability insurance covers directors and officers for claims arising out of their alleged wrongful acts or omissions as directors and officers of the non-profit. Applicable Federal and California Laws The non-profit employer should familiarize itself with the four major federal laws that protect the rights of employees to be free from employment discrimination: the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Employment Act of 1967, and the Americans with Disabilities Act of Additionally, the non-profit employer should be familiar with the California Fair Employment and Housing Act. These nondiscrimination laws protect employees against discrimination based on ancestry, color, creed, disability, marital status, medical condition, national origin, race, religion, or sex. Furthermore, the California Occupational Safety and Health Act requires employers in California to ensure that working conditions are safe and free from recognized hazards that cause, or are likely to cause, death or serious injury. Also, certain employers must provide parenting, family, and medical leaves to qualified employees under federal and California laws. The federal Family and Medical Leave Act of 1993 provides that qualified employees are able to take a certain amount of unpaid leave to attend to family matters, including health emergencies. Seek Legal Assistance The formalities associated with forming a non-profit corporation and the federal and state tax aspects involved are complex, thus it is strongly recommended that those who are interested in forming non-profit corporations obtain legal advice. Legal counsel will provide the organizer(s) with valuable assistance, such as providing analysis and advice before organizing, drafting, and filing the necessary governing documents with the appropriate governing bodies, preparing and filing federal and state tax exemption applications, assisting the non-profit in drafting bylaws, and providing advice pertaining to management structure and internal governance. It is also recommended that the new non-profit employer secure advice from a labor and employment The Basics of Forming a Non Profit Counseling Corporation Page 7

8 attorney to guide the employer toward compliance with both federal and state labor, employment, and nondiscrimination laws. Ann Tran, JD, is a Staff Attorney for CAMFT. She is available to answer member calls regarding business, legal, and ethical issues. References 1 Cal. Corp. Code 5120(a). 2 Cal. Corp. Code 5120(d). 3 Cal. Corp. Code Cal. Corp. Code Cal. Corp. Code Cal. Corp. Code Cal. Corp. Code Cal. Corp. Code U.S.C. 501(c)(3). 10 For more information on supervision of trainees and interns, see Riemersma, Mary, CAMFT Executive Director, Critical Reminders for Interns and Trainees and Supervisors Too! The article can be accessed in the Members Only Area on the CAMFT website at U.S.C For an explanation of the common types of exempt employees, see Benitez, Bonnie, Former CAMFT Staff Attorney, Employing Interns, Trainees and Licensees: The Right Way! Part II. The Therapist (May/June 2005). The article can be accessed in the Members Only Area on the CAMFT website at 13 For more information on the differences between independent contractors and employees, see Jensen, David, CAMFT Staff Attorney, Thoughts on Classifying Marriage & Family Therapists as Independent Contractors Versus Employees. The Therapist (Nov/Dec 2004). The article can be accessed in the Members Only Area on the CAMFT website at The Basics of Forming a Non Profit Counseling Corporation Page 8