A nonprofit corporation's Articles of Incorporation are crucial under both Indiana law and federal law. The Articles of Incorporation establish the nonprofit corporation's legal existence. They set the legal parameters within which the nonprofit corporation can operate, establishing such things as the type of nonprofit corporation, its purposes, its powers, the number of its directors, and whether it has members having certain legal rights in matters involving the nonprofit corporation's governance. The Articles of Incorporation generally trump the corporation's other governing documents (including its bylaws, corporate resolutions, and other policy documents), and thus operate as a sort of "constitution" for the organization. The Articles of Incorporation are the manner in which the nonprofit corporation gives notice to the State, through the Secretary of State, that it intends to exist, and their approval by the Secretary of State is the State's recognition that the corporation does in fact legally exist. Finally, the Articles of Incorporation are crucial to determining whether the nonprofit corporation will be recognized as tax exempt under federal law.
Three Types of Non-Profit Corporations Under Indiana Law
Indiana law permits three types of nonprofit corporations: 1) public benefit corporations, 2) mutual benefit corporations, and 3) religious corporations. Indiana Code section 23-17-3-2 requires a nonprofit corporation to identify itself as one of these three types in its Articles of Incorporation.
Public Benefit Corporation – A nonprofit corporation organized for public or charitable purposes, such as a museum. Crucially, a public benefit corporation must restrict itself so that on dissolution it distributes its assets to an organization organized for a public or charitable purpose, a religious corporation, the United States, a state, or a person that is recognized as exempt under Section 501(c)(3) of the Internal Revenue Code of 1986.
Religious Corporation – A nonprofit corporation organized primarily or exclusively for religious purposes, such as a church.
Mutual Benefit Corporation – A nonprofit corporation that is neither a public benefit nor a religious corporation. As the name implies, mutual benefit corporations are generally formed to provide nonprofit corporate status to an organization serving the common good of a limited number of relatively static members, for example a homeowner's association or trade association. Unlike public benefit and religious corporations, a mutual benefit corporation may make certain limited non-dissolution distributions to its members when their membership in the corporation ends. The mutual benefit corporation may purchase the membership of a member who resigns or whose membership is terminated for the amount and under the conditions set forth in or authorized by the corporation's Articles of Incorporation or bylaws without violating Indiana's general prohibition against distributions. See Indiana Code sections 23-17-8-3 and 23-17-21-2.
Articles of Incorporation Required Provisions
Under Indiana Code section 23-17-3-2, a nonprofit corporation's Articles of Incorporation MUST contain:
- The name of the corporation.
- A statement that the corporation is either a public benefit corporation, a religious corporation, or a mutual benefit corporation.
- The street address of the corporation's initial registered office and the name of the corporation’s initial registered agent of that office.
- The name and address of each incorporator.
- A statement of whether the organization will have members.
- Provisions for asset distribution on dissolution.
Articles of Incorporation Optional Provisions
A nonprofit corporation's Articles of Incorporation may contain:
- A description of the purposes of the organization. Note that if the organization intends to seek tax exempt status under federal law, for example as a public charity under 26 United States Code section 501(c)(3), the Articles of Incorporation must limit the corporation's purposes to those permitted for tax exemption.
- The names and addresses of the corporation's initial directors.
- Provisions for how the corporation should be managed, restrictions on the powers of the corporation, the board of directors, or the members if any.
- The characteristics, qualifications, rights, limitations, and obligations attaching to a class of members.
- Any provision that may be set forth in the corporation's bylaws.
Filing the Articles of Incorporation
Indiana Code section 23-17-3-1 requires at least one person to act as the nonprofit corporation's incorporator by delivering its Articles of Incorporation to the Indiana Secretary of State. The fee for filing a nonprofit corporation's Articles of Incorporation is $30.00. For further information about filing Articles of Incorporation, contact the Secretary of State's Business Services Division by clicking here.
Unless the Articles of Incorporation specify a later date, a nonprofit corporation's existence begins on the date it files its Articles of Incorporation. The filing of the Articles of Incorporation is proof that the incorporators have satisfied any and all necessary conditions to incorporate, except in a proceeding brought by the State of Indiana to revoke the incorporation or administratively or judicially dissolve the corporation.
For further information on the topics discussed on this page, see:
Indiana Code chapter 23-17-3 (describing the requirements and effect of Articles of Incorporation generally)
Indiana Code section 23-17-3-2 (describing the required provisions for Articles of Incorporation)
Indiana Code section 23-17-3-3 (describing optional provisions for Articles of Incorporation)