Nonprofit corporation

A nonprofit corporation is a legal and economic entity in the United States established under state law to govern, regulate and protect the assets of a range of charitable, educational, scientific, religious and other, similar activities and organizations and associations. Traditionally, nonprofit corporations are deemed legal individuals or "legal personalities" in their own right, separate from their founders and controllers and able to own property, enter into contracts, and incur debts of their own accord.

Under U.S. law, corporations are "legal personalities". The largest category of nonprofit corporation in the U.S. are exempt from federal (and state) taxation, donations to which may be tax deductible under Section 501(c)(3) of the IRS Code if they are nonpolitical, or 501(c)(4) if they engage in political activity. Currently, the federal tax code recognizes nearly two dozen different categories under Section 501. They include federally created corporations (501[c]1) that are expressions of federal policy, like the American Red Cross, the Corporation for Public Broadcasting, the Corporation for National and Community Service, legal services corporations (501[c]20) and black lung trusts corporations (501(c) 21) .

Most nonprofit corporations differ in important ways from statutory public corporations, as well as ordinary business corporations (C-corporations, S-corporations) and the newer type of B-corporations (social enterprises recognized by some states, Canada, the European Union and other countries. Most notably, nonprofit corporations as a group are characterized by various forms of nondistribution constraints that prohibit them from distributing "profits" (or operating surpluses in any form) to owners or shareholders.

The Nonprofit 'Membrane'

One of the distinctive general characteristics of nonprofit organizations -- in particular 501(c)3 "public charities" -- are legal requirements and expectations that function in a manner somewhat analogous to a biological membrane: Funds may pass easily and freely from a wide variety of private individuals, businesses, for-profit corporations into a nonprofit corporation, but explicit provisions prohibit and prevent comparable flows back to those original sources. Very much like a membrane, state laws allow funding to flow easily into the nonprofit sector and between various entities within the sector, but place very real limits on how and under what circumstances funding may flow back into the private sector.

One key to the operation of this membrane is the explicit declaration of a mission, goals and objectives specifying that the corporation exists for some recognized charitable, educational, religious, or scientific purposes. Two other standard features of state nonprofit corporation law also work together to define and maintain the membrane. These are generally termed non-distribution constraints and dissolution of assets requirements.

In the U.S. legal system generally, nonprofit corporations are defined, and to a limited degree, regulated by state laws, which stipulate such requirements as articles of incorporation, by-laws and the wording or nature of non distribution constraints. Together, these form the basic constitution of self-governance for such organizations. Key to this are the previously mentioned non-distribution constraints prohibiting distributions of "profits" or operating surpluses to owners or shareholders. Another standard legal provision required by most state statutes is for the nonprofit articles of incorporation to contain explicit language - a dissolution of assets clause - specifying what is to be done with any remaining assets in the event of the demise of the organization. For example, they may mandate that any remaining assets may only be transferred to another nonprofit corporation with a similar purpose, or simply specify that any remainder will be distributed by a specified court.

The reasons for this membrane are straightforward: Otherwise, it would be easy for an unscrupulous person or persons to solicit funds - whether membership dues, grants, donations or fees for some charitable purpose, and then to merely declare the money collected as profits to be paid to themselves. Or, they might simply terminate the organization and pocket the proceeds. While the vast majority of nonprofit organizations are open, honest operations, each year state charity and corporation officials in various states must deal with a number of such unscrupulous operations. And the three elements of the membrane are the primary tools which they rely on.