Nonprofit Formation & Governance
Establishing a nonprofit organization involves two steps: state incorporation and obtaining federal tax-exemption. Incorporation generally involves preparation of two key documents: the Certificate of Incorporation (by whatever term is used in each specific jurisdiction) and Bylaws. An application for federal tax-exemption must include information about the organization and its proposed activities, including a three-year budget. We assist new organizations in the incorporation and tax-exemption processes to ensure that they establish the right structure from the beginning, putting them into a strong position to carry out their missions.
We also advise our clients about nonprofit law when they are establishing governance policies so they can operate effectively and in compliance with applicable regulations. Certain governance rules vary depending on the applicable state nonprofit corporation law and the type of organization at issue (e.g., membership associations, religious organizations). In addition, many states have passed regulations that extend certain provisions of the federal Sarbanes-Oxley Act to nonprofits, including whistleblower and record-retention requirements.
Asiatico & Associates carefully guides our clients through the formation process and the establishment of good governance policies and practices. We also help boards understand their fiduciary obligations and industry best practices so they can provide meaningful oversight to their organizations.
Our Nonprofit Formation & Governance Services include:
• Formation and incorporation of nonprofit corporations
• Preparation and review of governance documents. (nonprofit bylaws, governance policies, etc.)
• Counsel and assist in creation of various affiliated nonprofit organizations
• Board/staff relationships, responsibilities, and delegation of authority
• Advice on best practices for board members, including conflicts of interest and financial controls.
• Governance and board structure, composition, roles, and responsibilities
• Liability, risk management, insurance
• Regulatory compliance and annual reporting
• Mergers and affiliations
• Corporate practices and recordkeeping
• Corporate dissolutions
• Nonprofit US Mail Permits (and USPS related items)
Tax-Exemption
Most nonprofit organizations are exempt from paying federal and state income tax and various local and municipal taxes. In order to maintain tax-exempt status, nonprofits must comply with certain regulations and restrictions that affect the way they conduct their events, operations and activities, including their business activities, handling of executive compensation, unrelated business income issues, and political campaign and lobbying activities.
We understand and maintain a cutting-edge stance on the complexities of tax-exempt organizational law to ensure that our clients are able to maintain their tax-exempt status, avoid excise tax penalties, and continue to operate successfully for the continued benefit of its nonprofit purposes.
Our Tax-Exemption Services include:
• Preparation and filing of the Federal applications for Recognition of Tax Exemption (including various 501c forms and group exemptions).
• Obtaining and maintaining tax-exempt status
• Preparation and representation in transactions and proceedings with the IRS,
including Private Letter Rulings and audits.
• Assistance and advice on compliance with the Intermediate Sanctions Act regarding reasonable compensation IRS guidelines.
• Review and advice on business activities and unrelated business income tax (UBIT).
• Advice on activities that are subject to certain IRS restrictions including excess benefit transactions, private inurement, political and campaign activity, and lobbying activities.
• Structuring joint ventures, program-related investments, or other nonprofit investment strategies.
• Public charity support tests and qualification
• Private foundation rules and regulations
• Operating foundation and supporting organization qualification and operating standards
• Disqualified person and self-dealing rules
• Corporate Sponsorships
• Annual reporting, Forms 990
Mergers, Acquisitions & Dissolutions
Over the past several years, mergers and acquisitions have become more commonplace in the nonprofit world, particularly as the number of public charities has grown and the pool of public and private support has not. There are a myriad of reasons as to why a merger, acquisition, and/or dissolution would be advisable, and we assist our clients in making such determinations and then ensuring the corporate structural change is accomplished.
Our Mergers, Acquisitions & Dissolutions Services include:
• Conducting due diligence prior to a merger or acquisition
• Consulting with and advising governing boards regarding possible options
• Drafting and negotiating merger documents
• Filing merger plans with appropriate state and regulatory agencies
• Transferring programs of merging or dissolving nonprofits to ensure a smooth transition for all parties concerned
• Dissolving nonprofit organizations
• Representing nonprofit organizations in court proceedings for involuntary dissolutions and reinstating organizations where appropriate
Intellectual Property Law & Trademark Protection
Asiatico & Associates advises and assists clients in protecting valuable intellectual property—such as the organization’s name, logo, tagline, and programs—against unauthorized use. Organizations that register are better able to protect their intellectual property and their right to exclusive use of the marks.
As well, we provide counseling with respect to copyrights; helping our clients protect original works, sermons, curriculum, books, designs, or other creative works and control how these works can be used. We assist with federal copyright registration and we will draft and negotiate licensing agreements, publishing contracts, intellectual property agreements, and royalty agreements. In full service, we conduct ownership and infringement dispute resolution and litigation.
Our Intellectual Property Services include:
• Trademarks
• Research potential marks’ registration and clearances
• Drafting and filing USPTO applications
• Drafting and negotiating trademark licensing agreements
• Enforcing and defending infringement claims disputes
• Copyrights
• Filing registrations with the US Copyright Office
• Counsel clients on copyright ownership rights
• Drafting and negotiating copyright license agreements, royalty agreements, and intellectual property agreements
• Enforcing and defining infringement claims disputes
Transactional/Contract/Commercial Matters
We advise clients on the breadth of possible transactional, contract, and commercial matters. It is critical to obtain legal counsel prior to engaging in business activities because the law in this area is constantly evolving and the consequences otherwise can be hefty and undesirable.
Our Commercial Transaction Services include:
• Structuring joint ventures and transactions between for-profit companies and nonprofit organizations.
• Handling general business transactions and agreements (leases, UCC transactions, stock purchase agreements, operating agreements and shareholder agreements).
• Executing financial transactions (capital transactions, venture finance agreements, lending agreements, and private placement memoranda).
Real Estate
For many nonprofits, real estate is nothing more than a necessary operating expense. For others it is an investment that brings in additional revenue through either the sale or lease of property. Both situations require the combined skill of a nonprofit attorney with that of a real estate lawyer, to handle all legal aspects of nonprofit real estate transactions, including leases, contracts, financing, and tax exemption, reduction, and abatement.
Our Real Estate Services include:
• Advising on the sale and lease of residential and commercial property.
• Obtaining property tax exemptions or abatements.
• Handling all aspects of real estate transfers by gift or bequest.
• Assisting with financing and loan agreements, including bond programs.
• Handling or assisting with real estate closings
• Avoiding unrelated business income tax from real property investments.
• Obtaining court approval for the sale of property by religious corporations
• Obtaining court approval for the transfer of substantially all of a nonprofit’s assets
Mediation/Arbitration/Litigation
Like individuals and for-profit entities, even nonprofit organizations today find themselves involved in disputes requiring mediation, arbitration, and/or litigation from time to time. We serve our clients in each of these regards and have successfully mediated, arbitrated, and litigated cases at both the state and federal court level.
Our Litigation Services include:
• Contractual disputes
• Property Rights
• Intellectual property disputes
• Will challenges
• Litigation with state and federal regulations
• Disputes between the organization and its current and / or former employees
• Personal injury defense
Employment Law Matters
Our clients’ needs with regard to employment are as broad as the spectrum with state and federal issues being applied differently to nonprofit organizational clients in a number of ways. Given this, employment law for nonprofit organizations in general requires a specific interpretive skill set. Many of our clients have for-profit concerns as well which require the same adeptness in handling as their counterparts, and we are poised to provide the assistance necessary to give our clients peace of mind that these matters are being tended to with excellence.
Our Employment Law Services include:
• Counsel and assist with implementation of compensation determination mandatory guidelines
• Employment Agreements/Contracts
• Employment Policies & Procedures
• Counsel clients regarding training, hiring, and termination of staff members
• Counsel clients regarding volunteers and background checks on workers
• Draft and Effectuate Deferred Compensation Plans
• Counsel, advise and defend clients regarding Dept. of Labor and Equal Employment Opportunity Commission Matters
• Severance Agreements
• Review and advise our clients regarding their human resource matters generally
• Confidentiality, non-competition, and non-solicitation agreements
International Nonprofit Counsel
Many of our clients have interests throughout the world requiring a broad base of knowledge regarding applicable standards and guidelines for charitable and philanthropic activities to be operated in foreign international jurisdictions. We advise our clients in any and all such matters and have built good and long-standing relationships with counsel in various international jurisdictions to ensure a full level of service is provided to our clients no matter where their mission takes them.
Our International Nonprofit Counsel Services Include:
• Assisting in the establishment of international nonprofit organizations in foreign countries.
• Advising on raising funds in foreign countries.
• Assisting foreign entities in establishing allowable organizations in order to raise tax-deductible donations in the U.S.
• Preparing affiliation agreements between nonprofits in various countries to combine efforts and effectively share resources.
• Assisting nonprofits in complying with licensing requirements.
• Connecting clients to attorneys in other countries who can help with nonprofit legal needs in each specific country.
Other Areas of Legal Services Provided:
• Any and All Press/Media Matters
• Comparability Analyses for Services Provided to Tax-Exempt Organizations
• Succession Planning for Nonprofit Organizations
• Wills/Trusts & Estates (for both individual and corporate clients)
Asiatico & Associates, PLLC
2201 N. Central Expressway
Suite 225
Richardson, TX 75080
© Asiatico and Associates, PLLC. All rights reserved.