Virginia Nonstock Corporations (including Nonprofits)
Most Virginia nonstock corporations are formed for non-profit purposes, such as clubs, rescue squads, and religious and charitable organizations.
Under Virginia law, no dividend or income of a nonstock corporation may be distributed to its directors, officers or individual members, except as reasonable compensation for services rendered or upon the dissolution or liquidation of the corporation. See § 13.1-814 of the Code of Virginia.
By filing articles of incorporation with the Clerk’s Office and obtaining a certificate of incorporation issued by the Commission. You may file online in the Clerk's Information System (CIS).
The Clerk’s Office has produced a guideform to help you prepare articles of incorporation, Form SCC819, which contains all of the provisions that are needed to meet the minimum filing requirements under Virginia law. You can also use the Nonprofit Organization Toolkit for helpful information.The articles may need to include additional provisions to meet other government standards. For example, the I.R.S. requires certain provisions in the articles of incorporation in order for a corporation to be recognized as a § 501 (c)(3) charitable organization. See the related question below.
No. Unlike a stock corporation that issues shares of stock to investors who then become "owners" and are entitled to share in the corporation’s profits, a nonstock corporation does not have any shareholders or "owners."
A member of a nonstock corporation is a person who has a membership interest in the corporation. This is not, however, the equivalent of a "member" of the board of directors. An individual serving on the board of directors is known as a "director."
The articles of incorporation must set forth whether or not the nonstock corporation will have members. If there will be members, the articles must set forth (i) the classes of members, if there is more than one class (ii) the qualifications required to become a member of each class, and (iii) the rights of each class of members, including the right to vote, if any. In the alternative, the articles may provide that one or more of these items will be as set forth in the corporation’s bylaws (which are not filed in the Clerk’s Office).
A nonstock corporation is not required to have (i) members, (ii) more than one class of members, or (iii) members with voting rights. It is up to you to determine the appropriate organizational structure for the corporation.
By way of example, consider the following: Suppose you want to set up an organization for middle school students to perform community service activities. You could establish a class of members composed of the students and a class of members composed of their parents. The student members could have limited voting rights, such as the right to determine the projects that the students will undertake. The parent members could have the right to vote on all other matters, including the election of the corporation’s directors.
The articles of incorporation must provide how the directors will be elected or appointed. It is not acceptable to provide that the directors will be elected or appointed "as set forth in the bylaws."
Under Virginia law, a nonstock corporation is managed by a board of directors, which, in turn, appoints the officers of the corporation. In most instances, after incorporation, the directors are selected by the members, or by the directors in office. When the directors elect or appoint their successors, this is referred to as a self-perpetuating board of directors.
It is not acceptable to provide that future directors will be appointed by a named individual. This arrangement is unacceptable because when the individual dies, no mechanism will be in place for the selection of subsequent directors.
Another acceptable director selection mechanism in the articles of incorporation is to provide for an "ex-officio" director. This is an individual who holds a particular office in another organization and will be a director of the corporation for so long as he or she occupies said office. For example, an individual serving as the president of a sister organization could be designated as an ex-officio director of your corporation. The title of the office and the name of the organization would need to be identified in the corporation’s articles of incorporation.
"Tax-exempt" status is granted by the Internal Revenue Service. In order to be recognized as a tax-exempt organization, the articles of incorporation of a nonstock corporation must include various provisions that are identified in IRS Publication 557, Tax-Exempt Status for Your Organization.
When you prepare the articles of incorporation for submission to the Clerk’s Office, you will need to include the requisite I.R.S. provisions within the document if the corporation intends to apply for tax-exempt status. The provisions may not be included as an attachment, nor may they be set forth after the signature of the incorporator(s). Furthermore, the Clerk's Office does not review the sufficiency of your tax-exempt provisions, and does not return the articles to you for amendment if they are missing. Accordingly, we strongly urge you to properly include these provisions in your original articles of incorporation, as adding them later by articles of amendment can be cumbersome.
For more information regarding tax-exempt organizations, contact the IRS at 877-829-5500.