Form of Articles

PUBLIC COUNSEL | COMMUNITY DEVELOPMENT PROJECT | ANNOTATED ARTICLES | APRIL 2013

Form of Articles

California Nonprofit Public Benefit Corporation

Made possible through the support of the Annenberg Foundation

About This Form: Public Counsel’s Community Development Project has designed the attached

form articles of incorporation for a California Nonprofit Public Benefit Corporation to assist

nonprofit organizations that have chosen to incorporate in California and the pro bono attorneys

who represent them.

The form is annotated with explanatory endnotes, including citations to applicable laws. For

further instructions on how to use this form, how to determine whether your organization is

ready to incorporate, and how to file the articles of incorporation to form a corporation, please

see the first endnote. Public Counsel will update this form periodically for changes in law,

recommended practices and available resources. For the latest version, see

www.publiccounsel.org/tools/publications/files/Annotated_Articles.pdf. To provide comments

on this form, send us an email at [email protected] or call (213) 385-2977, extension 200.

Important Notes: This form should be used only after carefully considering whether a

corporation is the right entity for your organization and after making sure that you are ready to

begin fundraising for and conducting the proposed charitable programs. Filing articles of

incorporation starts the clock running on important deadlines. If a corporation is formed

before it is ready to apply for tax exemption or file other necessary paperwork, it may

become subject to taxes and fines. Please see the first endnote for more information.

This form should not be construed as legal advice. Please contact an attorney for legal advice

about your organization’s specific situation. This form should not be used “as is” but should be

modified after careful consideration of the explanations and alternative wording choices in the

text of the articles and endnotes. Some corporations may need to include additional provisions

not discussed in this form to qualify for certain grants or government funding.

▪▪▪

Public Counsel’s Community Development Project provides free legal assistance (including

nonprofit incorporation) to qualifying nonprofit organizations that share our mission of serving

low-income communities and addressing issues of poverty within Los Angeles County. For

information about our legal services and the application process, please call (213) 385-2977,

extension 200, or visit www.publiccounsel.org/practice_areas/community_development.

610 SOUTH ARDMORE AVENUE, LOS ANGELES, CA 90005 | TEL: 213.385.2977 | FAX: 213.385.9089 | WWW.PUBLICCOUNSEL.ORG

FORM OF ARTICLES OF INCORPORATION

CALIFORNIA NONPROFIT PUBLIC BENEFIT CORPORATION

ARTICLES OF INCORPORATION

Article I

The name of this corporation is [Name of Corporation] (“Corporation”).

Article II

A. 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 [choose one:

[charitable] OR [public] OR [charitable and public]] purposes.

The specific purpose of this

Corporation is to [insert specific purpose].

B. This Corporation is organized and operated exclusively for [insert one or more exempt purposes

(e.g., charitable, educational, etc.)] purposes within the meaning of Section 501(c)(3) of the Internal

Revenue Code of 1986, as amended (the "Code").

Article III

The name and address in the State of California of this Corporation’s initial agent for service of process is

[name and street address].

Article IV

The initial street and mailing address of this Corporation is [address].

[Alternative: The initial street address of this Corporation is [street address]. The initial mailing address

of this Corporation is [mailing address].]

Article V

This Corporation shall have no members.

Article VI

A. No substantial part of the activities of this Corporation shall consist of carrying on propaganda, or

otherwise attempting to influence legislation, and this Corporation shall not participate in or intervene

in any political campaign (including the publishing or distribution of statements) on behalf of, or in

opposition to, any candidate for public office.

FORM OF ARTICLES OF INCORPORATION

CALIFORNIA NONPROFIT PUBLIC BENEFIT CORPORATION

B. Notwithstanding any other provision of these articles of incorporation, this Corporation shall not

carry on any activities not permitted to be carried on (i) by a corporation exempt from federal income

tax under Section 501(c)(3) of the Code or (ii) by a corporation, contributions to which are deductible

under Section 170(c)(2) of the Code.

C. Notwithstanding any other provision of these articles of incorporation or other governing instrument

of this Corporation, during such period or periods, of time, if any, as this Corporation is treated as a

“private foundation” pursuant to Section 509 of the Code: (i) the Corporation’s income must be

distributed at such time and in such manner so as not to subject this Corporation to tax under Section

4942 of the Code and (ii) this Corporation is prohibited from (a) engaging in any act of self-dealing

(as defined in Section 4941(d) of the Code); (b) retaining any excess business holdings (as defined in

Section 4943(c) of the Code) which would subject this Corporation to tax under Section 4943 of the

Code; (c) making any investments in such manner so as to subject this Corporation to tax under

Section 4944 of the Code; and (d) making any taxable expenditures (as defined in Section 4945(d) of

the Code).

Article VII

A. The property of this Corporation is irrevocably dedicated to [insert one or more §501(c)(3) exempt

purposes (e.g., charitable, educational, etc.)] purposes. No part of the net income or assets of this

Corporation shall ever inure to the benefit of any of its directors or officers, or to the benefit of any

private person, except that this Corporation is authorized and empowered to pay reasonable

compensation for services rendered and to make payments and distributions in furtherance of the

purposes set forth in Article II hereof.

B. Upon the dissolution or winding up of this Corporation, its assets remaining after payment, or

provision for payment, of all debts and liabilities of this Corporation shall be distributed to a

nonprofit fund, foundation, or corporation which is organized and operated exclusively for [insert

one or more §501(c)(3) exempt purposes (e.g., charitable, educational, etc.)] purposes and which

has established its tax exempt status under Section 501(c)(3) of the Code.

Date: [Date]

[Signature]______________________________

[Typed Name], [choose one: [Incorporator] OR [Director]]

[NOTE: Insert additional signature blocks as needed. Insert acknowledgment and additional set of

signature blocks only if Directors are named in the articles.

]

How To Use This Form: For each section of the articles, the endnote indicates whether the provision is required

to be included in the articles or is optional, and discusses the applicable law. Some of the form provisions contain

bold bracketed text that indicates where the user is required to insert language (explained in the endnotes) to

replace the bracketed terms. Other provisions contain italicized text that shows alternatives that may or may not be

required, based on a nonprofit organization’s expected purposes and activities. In such cases, the notes explain

under what circumstances an organization would choose to include the italicized language.

The endnotes discuss relevant provisions of the California Nonprofit Corporation Law (California Corporations

Code sections 5000 et seq., referred to in these endnotes as the “law”) and provisions of the Internal Revenue Code

of 1986, as amended (U.S. Code Title 26, referred to in these endnotes as the “Code”), in effect as of April 2013.

Important Note: Incorporation is not the first step in planning a new nonprofit program! Although this form is

designed to meet the legal requirements to form a corporation that qualifies to apply for tax exemption under section

501(c)(3) of the Code and section 23701d of the California Revenue and Taxation Code, Public Counsel’s

Community Development Project cautions all users of this form that many planning steps to start a new

nonprofit organization must precede filing of the articles. This form should be used only after carefully

considering whether a corporation is the right entity for your organization and after making sure that you are ready

to begin fundraising for and conducting the proposed charitable programs. Before forming a corporation, for

example, anyone interested in starting a new tax exempt nonprofit organization should have a detailed description of

the programs the new corporation will conduct, and a detailed budget including a specific understanding of what

funds are available to support the proposed programs and thorough research about the costs that will be involved in

conducting the proposed programs. For further reading on this topic, see “Get Ready, Get Set” a publication of the

Center for Nonprofit Management, at www.cnmsocal.org/images/downloads/startinganonprofit_getreadygetset.pdf.

Filing the articles starts the clock running on important deadlines! If a corporation is formed before it is

ready to apply for tax exemption or file other necessary paperwork and too much time elapses, it may become

subject to taxes and fines.

Filing The Articles: A corporation is legally formed when the California Secretary of State accepts the articles for

filing. After completing this form as appropriate for the corporation’s proposed activities, the user should be sure to

remove all endnotes, brackets and italicization before filing. For instructions on filing the articles, see

www.publiccounsel.org/cdp/npincorp_steps.pdf and www.sos.ca.gov/business/corp/pdf/articles/arts-pb.pdf. Once

the corporation receives a file-stamped copy of its articles back from the Secretary of State, the corporation should

keep this document in its permanent files. Organizations incorporating outside of California should not use this

form, and should consult the laws of the relevant state, as requirements often vary.

REQUIRED. The law requires the name of the corporation to be included in the articles. [Cal. Corp. Code §

5130(a)] California allows but does not require a nonprofit corporation to include the word “Corporation,”

“Incorporated,” “Corp.” or “Inc.” in its name. The name inserted in Article I, including any punctuation or

abbreviations, will be the legal name of the corporation, and should be used exactly as written here in all future

government filings.

The name of a California corporation must adhere to the following guidelines in order to be approved by the

Secretary of State. First, the name may not contain the words “bank,” “trust,” “trustee,” or related words without the

approval of the Commissioner of Financial Institutions. [Cal. Corp. Code § 5122(a)] Second, the name may not

contain the word “cooperative” or any abbreviation of it unless an exception applies. [Cal. Corp. Code § 12311(b)]

Finally, the Secretary of State will not accept a name that “is likely to mislead the public” or that is the same as, or

“resembles so closely as to tend to deceive” either (i) a name that is already reserved with the Secretary of State or

(ii) the name of a domestic corporation or foreign corporation qualified or registered in California, unless the

existing corporation or the holder of the name reservation consents. [Cal. Corp. Code § 5122(b)] Federal law also

imposes restrictions on the use of the words “Olympic” and “Olympiad,” [36 U.S.C. § 220506] and on certain terms

associated with the federal government and its activities [18 U.S.C. §§ 709, 711-711a, 712].

When determining name availability, the California Secretary of State only checks the proposed name against names

of like entities registered with it (e.g., a proposed nonprofit corporation name is checked for availability only against

other nonprofit and for profit corporation names). Even if the desired name is available, the name may already be in

use by another type of entity (e.g., an LLC) or contain a word or phrase that is protected by federal or state

trademark or service mark registration or a fictitious business name filing. Therefore, it is a best practice to check

the desired name against these sources before filing the articles and committing substantial efforts to developing

public recognition of the name. For additional guidelines and general name availability information, see

www.sos.ca.gov/business/be/forms/name-guidelines-restrictions.pdf and www.sos.ca.gov/business/be/name-

availability.htm.

If the corporation wishes to change its legal name in the future, it may do so by amending its articles and filing the

amendment with the Secretary of State. See www.sos.ca.gov/business/corp/pdf/amendments/corp-amdtnp.pdf for a

sample certificate of amendment.

REQUIRED. The law requires that this exact statement (the first two sentences of Article II.A) be included in

the articles. At the end of the second sentence, the articles must state one of the following three bracketed options

[public] OR [charitable] OR [public and charitable]. [Cal. Corp. Code § 5130(b)] See Note 4 for additional

language that is required if you select one of the alternatives that includes “public” purposes. The law does not

define the terms “charitable” or “public.” However, it is clear that the term “charitable” is broad and encompasses

more than the relief of the poor.

Recommended Practice: Corporations seeking to qualify for state tax exemption usually organize for one of the

specified exempt purposes under section 501(c)(3) of the Code (e.g., charitable, scientific, literary, educational, etc.).

All of these section 501(c)(3) purposes are considered "charitable" purposes under the law (i.e., for purposes of

Article II.A). As a result, it would generally not be necessary to include the designation “public” purposes in

the articles of a corporation that expects to qualify as tax exempt under section 501(c)(3) of the Code. The

Secretary of State has indicated that a public benefit nonprofit corporation might be organized for “public” purposes

if it is being organized for purposes other than those that qualify for exemption under section 501(c)(3) of the Code,

such as, for example, a social welfare organization or a civic league that qualifies under section 23701(f) of the

California Revenue and Taxation Code and section 501(c)(4) of the Code.

Note that the designation as “public,” “charitable,” or “public and charitable” required by California corporate law

to be inserted in this provision may, but need not, exactly match the federal tax law 501(c)(3) purposes required to

be inserted in Article II.B. Thus, a school or educational facility could state it is a public benefit corporation

organized for “charitable” purposes in Article II.A. However, its section 501(c)(3) purposes in Article II.B could be

“educational” or “charitable and educational,” depending on the type of school.

REQUIRED if “public” purposes. If the second sentence of Article II.A states that the corporation’s general

purposes include “public” purposes or “public and charitable” purposes, then the articles must include a further

description of the corporation’s purposes. The description should be clear enough so the reader understands what

the corporation’s specific public purposes are. See Note 3 for an explanation of public vs. charitable purposes. A

corporation with solely charitable purposes is not required to (but may) include in its articles a further statement

limiting the purposes of the corporation. [Cal. Corp. Code § 5130(b)] Note, however, that the Secretary of State

and the Franchise Tax Board both suggest including a statement describing the specific purpose of the corporation

even when the articles state that the corporation is formed solely for charitable purposes. See Recommended

Practice below.

Limitations on the purposes of the corporation may be included in either its articles or bylaws. [Cal. Corp. Code §§

5131, 5151(c)] If there is a conflict between the articles and bylaws, however, the articles control. Thus, if the

purposes and limitations in the articles are more restrictive than the ones stated in the bylaws, the language in Article

II will define what activities the corporation may conduct.

Recommended Practice: The Secretary of State and the Franchise Tax Board both suggest including a statement

describing the specific purpose even if it is not required (i.e., when the articles state the corporation is formed solely

for charitable purposes).

It is advisable to state any specific purpose in broad and flexible terms since needs and objectives change over time

and it may not be easy to eliminate a limitation once imposed even if its underlying reason no longer applies. If a

specific purpose is described in the articles, the corporation may later change that purpose by amending its articles.

However, any such amendment of articles of a nonprofit public benefit corporation will require notice to the

Attorney General. If the corporation has assets at the time of the change of purpose, the Attorney General may

require that the corporation use those existing assets only to serve its original purpose. If the founders want to

ensure that the corporation’s activities are limited to those purposes that they originally envisioned, and that the

corporation’s assets will be used only for those purposes, then specific limitations coupled with a clear statement of

specific purposes would be appropriate. However, the founders should plan carefully to include some flexibility.

By establishing specific limitations, the corporation permanently dedicates its assets to the limited stated purposes,

so that even if the corporation's purposes change in the future, some of its assets may not be available for use in its

new activities.

Sample Language Providing Flexibility

Sample 1: “The specific purpose of this Corporation is primarily to [purpose]. Additionally, this Corporation may

engage in any activities that are reasonably related to or in furtherance of its stated charitable purposes, or in any

other charitable activities.”

Sample 2: “The specific purpose of this Corporation is primarily to [purpose], and to carry on other charitable

activities associated with this purpose as allowed by law.”

REQUIRED for federal income tax exemption. This language must be included in the articles if the corporation

seeks to qualify for federal income tax exemption under section 501(c)(3) of the Code. It is also necessary for state

income tax exemption. [Cal. Rev. & Tax. Code § 23701d] The corporation must include in place of the

bracketed language at least one qualified “exempt purpose” within the meaning of section 501(c)(3) of the

Code. The qualified exempt purposes set forth in section 501(c)(3) of the Code are (i) charitable, (ii) religious, (iii)

educational, (iv) scientific, (v) literary, (vi) testing for public safety, (vii) fostering national or international amateur

sports competition, and (viii) preventing cruelty to children or animals. These are the same qualified exempt

purposes set forth in section 23701(d) of the California Revenue and Taxation Code.

Most nonprofit public benefit corporations using this form will be organized and operated for purposes that meet the

definition of “charitable” in the Code. The term “charitable” as defined in the Code is used in a broad sense and

includes more than relief of the poor. For example, the IRS views all of the following activities as charitable: (i)

relief of the poor, the distressed, or the underprivileged; (ii) advancement of religion; (iii) advancement of education

or science; (iv) erection or maintenance of public buildings, monuments, or works; (v) lessening the burdens of

government; (vi) lessening neighborhood tensions; (vii) elimination of prejudice and discrimination; (viii) defense of

human and civil rights secured by law; and (ix) combating community deterioration and juvenile delinquency. If the

corporation’s purpose falls into any of these categories, it should list “charitable” as its purpose (or one of its

purposes) in this provision.

Some nonprofit public benefit corporations using this form will be organized and operated for purposes that meet the

definition of “educational” in the Code. Under the Code, the term “educational” is broad and includes instruction

benefitting individuals and the community. For example, the following activities are considered educational: (i)

publishing educational newsletters, books and other materials; (ii) conducting public discussion groups, workshops

and lectures; (iii) operating a museum, zoo, orchestra, or performance group; (iv) operating a private school; and (v)

providing child care (under certain conditions).

The articles often state one or more of these general categories rather than going into more specific detail (e.g., “The

Corporation is organized and operated exclusively for charitable and educational purposes”). If the corporation

cannot determine into which category or categories its purposes fall, it may instead describe a more specific purpose

such as, for example, “relief of the elderly within the meaning of section 501(c)(3) of the Code,” “relief of the poor,”

or any other statement that describes the corporation’s proposed activities. See www.irs.gov/pub/irs-

tege/eotopicd04.pdf for examples of qualifying and non-qualifying purposes. Note, however, that the description

should not be very narrow, because a narrow definition will limit the scope of the corporation’s future activities. For

a discussion on whether to limit the purposes of the corporation in the articles, see Note 4.

REQUIRED. The law requires that the articles include the name and California street address (a P.O. Box

address is not acceptable) of the corporation’s initial agent for service of process. [Cal. Corp. Code §§ 5130(c),

6210(b)] The designated agent must agree to accept service of process on behalf of the corporation before being

named in the articles. A corporation cannot designate itself as its own agent for service of process.

An agent is a person who resides in California and is designated by the corporation to accept service of legal process

if the corporation is sued. Note that no liability attaches to the agent for merely being an agent. The corporation

may change its agent for service of process at any time, by filing a new Form SI-100 completed in its entirety with

the Secretary of State. See www.sos.ca.gov/business/corp/pdf/so/corp_so100.pdf.

Recommended Practice: Although there are companies registered to serve this function for a fee, startup

community-based nonprofits generally cannot afford to pay a company and instead choose an individual. The

individual chosen is usually the incorporator, or a director or officer, but can also be any other person, whether or

not affiliated with the corporation. The corporation should choose an agent who will stay in close contact with the

board to ensure that he or she immediately forwards any information received. If the corporation is sued, it must

promptly seek legal counsel and keep close track of the deadlines for any response.

REQUIRED. Starting January 1, 2013, the law requires that the articles include the street address of the

corporation. [Cal. Corp. Code § 5130(d)] The articles must also include the mailing address of the corporation, but

only if it is different from the street address. [Cal. Corp. Code § 5130(e)] If no separate mailing address is stated,

the Secretary of State will assume the corporation’s street address is also the mailing address. The name of the city

indicated in the street or mailing address should not be abbreviated. The corporation may change its street and

mailing address on file at any time by filing a new Form SI-100 completed in its entirety with the Secretary of State.

See www.sos.ca.gov/business/corp/pdf/so/corp_so100.pdf.

OPTIONAL. The law permits the corporation to include optional provisions in the articles. [See Section 5130

of the law for provisions that must be set forth in the articles and Sections 5131, 5132, 5151, 5310, 5513, 5812,

5911 and 6510 of the law for optional provisions] In the absence of any provision in its articles or bylaws providing

for members, a corporation has no legal members (members that have the right to vote on major corporate

transactions and to elect the board of directors). [Cal. Corp. Code § 5310(a)] This optional form provision, if

added, simply makes it clear that the corporation has no legal members. Even if the corporation has no legal

members, it may still have a group of people it designates as “members” for fundraising purposes, but this group of

people will not have the right to vote on corporate matters.

Recommended Practice: The statement that the corporation shall have no members should be included in the

articles and/or bylaws to avoid any potential confusion.

REQUIRED for federal income tax exemption. This language must be included in the articles if the corporation

seeks to qualify for federal tax-exempt status under section 501(c)(3) of the Code. It is also necessary for state

income tax exemption. [Cal. Rev. & Tax. Code § 23701d] Note that the prohibition on participation in candidate

election activities is absolute, but the limitation on lobbying only prohibits the corporation from doing a substantial

amount of lobbying. Corporations that expect to do any lobbying should discuss with counsel whether to make the

election permitted by section 501(h) of the Code, which permits lobbying that does not exceed certain expenditure

ceilings.

REQUIRED for federal tax exemption. This language limiting the corporation’s activities must be included in

the articles if the corporation seeks to qualify for federal tax-exempt status under section 501(c)(3) of the Code. See

IRS Publication 557 for more information. [IRS Publication 557 (Rev. June 2008), p. 69)]

OPTIONAL, but will apply even if not included. The italicized language set forth in Article VI.C relates to tax

rules that apply to 501(c)(3) corporations that are classified as “private foundations,” rather than “public charities.”

Although most corporations using this form will intend to be classified as “public charities,” there is always a risk

that a public charity may be reclassified as a private foundation if it does not generate enough broad public support.

As a result, all users of this form should review the following discussion of Article VI.C. See below for a

further description of public charities and private foundations.

Every private foundation must include this italicized language in its articles, unless state law requires these rules to

apply to the corporation without such language appearing in its articles. [Code § 508(e); Treas. Reg. § 1.508-3(c)]

California law provides that these private foundation tax rules apply to a nonprofit public benefit corporation during

any period(s) that the corporation is deemed to be a private foundation, regardless of what is in the corporation’s

articles. [Cal. Corp. Code §5260] Therefore, a California nonprofit public benefit corporation is not required to

include this private foundation language in the articles, but the rules will apply if the corporation is ever deemed to

be a private foundation. For this reason, a corporation may want to include this optional private foundation

language in its articles or bylaws to remind its directors and officers of their increased responsibilities during any

periods when the corporation is a private foundation. If the corporation is ever notified that it has been reclassified

as a private foundation, the corporation should consult counsel about what these laws require and how to request

reclassification as a public charity.

Public Charity vs. Private Foundation

All organizations that are tax exempt under Code section 501(c)(3) are classified as either “private foundations” or

“public charities”, depending on where their revenues generally come from. A private foundation generally receives

most of its revenue from one or a few private individuals or companies. A public charity generally receives support

from the broad general public, the government and other public charities. Corporations using this form will

generally apply to be recognized as a publicly supported charity, and will generally not intend to be treated by the

IRS as a private foundation. However, a corporation may lose its public charity status and instead be deemed a

private foundation if, for example, the corporation cannot prove that it has received general public support during

the first 5 years of its existence. Visit the IRS website for more information on the requirements imposed on private

foundations (www.irs.gov/charities/foundations/index.html).

REQUIRED for state income tax and property tax exemption.

CA Income Tax: The corporation must include in place of the bracketed language at least one qualified “exempt

purpose” within the meaning of section 501(c)(3) of the Code. The California Franchise Tax Board requires that the

property of the corporation be irrevocably dedicated to one or more purposes (i.e., charitable, scientific, religious,

literary, educational, etc.) as described in section 501(c)(3) of the Code in order to grant state income tax exemption.

[Cal. Rev. & Tax. Code § 23701d] If the corporation has inserted a narrower purpose in Article II.B, and wants to

ensure that the assets are irrevocably dedicated to serving that narrower purpose, the corporation may include that

same narrower purpose in place of the bracketed language in the form. If this purpose is educational, see the

comment on CA property tax below. The purposes listed in this provision must match the purposes listed in Article

VII.B. See Note 5 for a discussion on exempt purposes.

CA Property Tax: The California Board of Equalization requires that the property of the corporation be irrevocably

dedicated to one or more of four qualifying purposes (religious, scientific, charitable, and hospital) described in

Section 214 of the California Revenue and Taxation Code in order for the corporation to qualify for the welfare

exemption to property taxes (“property tax exemption”). Because the qualifying purposes for property tax

exemption are more limited than for federal and state income tax exemption, not all nonprofit tax-exempt purposes

may qualify.

Although “educational” purposes are not explicitly included in the qualifying purposes for property tax exemption,

some educational purposes described in Section 214(j) of the California Revenue and Taxation Code are treated as

“charitable.” Thus, if the corporation intends to dedicate its assets to educational purposes, then Article VII.A must

state that the purposes are “educational purposes meeting the requirements of Section 214 of the California Revenue

and Taxation Code” (rather than merely including the word “educational”) in order for the corporation to qualify for

a California property tax exemption.

Corporations that irrevocably dedicate their property to purposes other than qualifying purposes (e.g., public

purposes, non-qualifying educational purposes, etc.) do not qualify for the welfare exemption from property tax.

See section 214 of the California Revenue and Taxation Code and California Board of Equalization Property Tax

Rule 143 (www.boe.ca.gov/proptaxes/pdf/143Adopted.pdf) for requirements and examples of irrevocable dedication

clauses.

Recommended Practice: Property tax exemption is significant only when the corporation intends to own real

property in California or to rent/lease real property from another nonprofit in California.

REQUIRED for state income tax and property tax exemption. Generally also required for federal tax

exemption. [Treas. Reg. § 1.501(c)(3)-1(b)(4)] The IRS does not require this express provision in the articles of a

California corporation to qualify for exemption under section 501(c)(3) of the Code, because California law satisfies

the IRS requirements whether or not this is stated in the articles. [Treas. Reg. § 1.501(c)(3)-1(b)(4); Rev. Proc. 82-2,

at www.irs.gov/pub/irs-tege/rp1982_2.pdf] The IRS recommends, however, that articles include the language to

facilitate processing the application for federal tax-exempt status. [IRS Publication 557 (Rev. June 2008), p. 22]

CA Income Tax: The corporation must include in place of the bracketed language at least one qualified “exempt

purpose” within the meaning of section 501(c)(3) of the Code. In order to grant state income tax exemption the

California Franchise Tax Board requires that, upon the liquidation, dissolution or abandonment of the corporation,

the property of the corporation be distributed to another corporation which qualifies under one or more purposes

(i.e., charitable, scientific, religious, literary, educational, etc.) described in section 501(c)(3) of the Code. [Cal.

Rev. & Tax. Code § 23701d] If the corporation has inserted a narrower purpose in Article II.B, and wants to ensure

that the assets will be distributed on dissolution only to another organization serving that narrower purpose, the

corporation may include that same narrower purpose in place of the bracketed language in the form. If this purpose

is educational, see the comment on California property tax below. The purposes listed in this provision should

match the purposes listed in Article VII.A. See Note 5 for a discussion on exempt purposes.

CA Property Tax: In order to grant property tax exemption the California Board of Equalization requires that, upon

the liquidation, dissolution or abandonment of the corporation, the property of the corporation be distributed to

another corporation which qualifies under one or more of the four qualifying purposes (religious, scientific,

charitable, and hospital) described in Section 214 of the California Revenue and Taxation Code. Because the

qualifying purposes for property tax exemption are more limited than for federal and state income tax exemption,

not all nonprofit tax-exempt purposes may qualify.

Although “educational” purposes are not explicitly included in the qualifying purposes for property tax exemption,

some educational purposes described in Section 214(j) of the California Revenue and Taxation Code are treated as

“charitable.” Thus, if the articles require that the corporation’s property be distributed upon dissolution to a

corporation with educational purposes, then Article VII.B must state that the purposes are “educational purposes

meeting the requirements of Section 214 of the California Revenue and Taxation Code” (rather than merely

including the word “educational”) in order for the corporation to qualify for a California property tax exemption.

Corporations that may distribute their property upon dissolution to corporations with purposes other than qualifying

purposes recognized by the California Board of Equalization (e.g., public purposes, non-qualifying educational

purposes, etc.) do not qualify for the welfare exemption from property tax. See section 214 of the California

Revenue and Taxation Code and California Board of Equalization Property Tax Rule 143

(www.boe.ca.gov/proptaxes/pdf/143Adopted.pdf) for requirements and examples of dissolution clauses.

Recommended Practice: Property tax exemption is significant only when the corporation intends to own real

property in California or to rent/lease real property from another nonprofit in California. The property tax

exemption is not automatic for nonprofit corporations and requires a separate application to the State Board of

Equalization and the county in which the property is located.

OPTIONAL. The law does not require the articles to be dated. Note that the corporation does not exist until

the articles are accepted for filing by the Secretary of State. The Secretary of State will stamp the articles with the

date of incorporation and return a stamped copy to the incorporator. That stamped date (and not the date written on

the articles by the incorporator(s)) will be the corporation’s date of formation.

Recommended Practice: It is generally good practice to date the execution of the articles. However, this date

would only indicate when the articles were actually signed and not when the corporation came into existence under

the law.

REQUIRED. The articles must be signed by an incorporator, or if the initial directors have been named in the

document, must be signed instead by all of the directors. If directors are named in the articles, each director must

both sign and acknowledge the articles (see Note 16 for language that can be used for the acknowledgment). [Cal.

Corp. Code §§ 5120(b), 5030] The names of incorporator or directors must be typed beneath their signatures, with

the appropriate title next to the names.

Incorporator(s): The form articles provide for a sole incorporator. If there are multiple incorporators, simply insert

additional signature blocks at the end of the document. After the corporation is in existence, the incorporator(s)

should appoint the initial directors and call an initial board of directors meeting. From then on, the board of

directors is the governing body of the corporation.

Initial Directors: Alternatively, the articles could name the first board of directors. If the articles name directors,

each director must both sign and acknowledge the articles. These directors are the governing body of the

corporation from the date that the articles are filed by the Secretary of State.

If initial directors have been named, an additional article must be added listing each Director’s name and address:

“Article VIII

The names and addresses of the initial directors of the Corporation are as follows:

Name

Address”

Recommended Practice: It is common, and easiest, for an incorporator to form the corporation and then appoint

directors. This avoids having the initial directors’ names and addresses on public file with the state forever. Note

that in order to ensure a quick and efficient transfer of authority, incorporators should know who the initial directors

will be before signing the articles.

If initial directors are named in the articles, as discussed more fully in Note 15, then the initial directors listed in

the articles must both sign and acknowledge (with a second signature) the articles. In that case, insert the following

language (with the appropriate number of signature blocks) at the end of the articles, after the directors’ signatures:

“Acknowledgement

The undersigned declare that they are the persons who have executed these Articles of Incorporation and declare

that this instrument is their act and deed.

[signature]_____________________

[Name], Director”

ADDITIONAL RESOURCES:

California Secretary of State

Sample Articles of Incorporation of a Nonprofit Public Benefit Corporation and

Filing Instructions

www.sos.ca.gov/business/corp/pdf/articles/arts-pb.pdf

Filing Tips for Domestic Nonprofit Corporations

www.sos.ca.gov/business/be/filing-tips-corp.htm#artsnp

California Attorney General

Registry of Charitable Trusts

http://oag.ca.gov/charities

California Franchise Tax Board

Publication 927 – Introduction to Tax Exempt Status

www.ftb.ca.gov/forms/misc/927.pdf

Internal Revenue Service

Publication 557 – Tax Exempt Status For Your Organization

www.irs.gov/pub/irs-pdf/p557.pdf

Organizational Test – 501(c)(3)

www.irs.gov/pub/irs-tege/eotopicd04.pdf

Life Cycle of a Public Charity

www.irs.gov/charities/charitable/article/0,,id=122670,00.html

California Corporations Code

www.leginfo.ca.gov/calaw.html

Internal Revenue Code

U.S. Code Title 26

www.law.cornell.edu/uscode/uscode26/usc_sup_01_26.html

Public Counsel

Annotated Form of Bylaws

http://www.publiccounsel.org/tools/publications/files/Annotated_Bylaws.pdf

Guide to Formation of a Tax-Exempt California Nonprofit Corporation

www.publiccounsel.org/tools/publications/files/npincorp_guide.pdf