Not all nonprofit corporations last forever. Among other possibilities, a nonprofit corporation may close because it’s no longer able to get necessary funding, the directors or members have irreconcilable differences, or the organization simply decides that it has met its goals and no longer needs to exist. Whatever the underlying reason, if you choose to close down a Missouri nonprofit corporation, you’ll need to go through a process called dissolution. Dissolution requires a vote or other formal authorization, the filing of key documents with government agencies, and a group of other tasks collectively known as winding up the corporation.
The specific steps for closing a Missouri nonprofit organization will vary depending on several basic facts. Bearing that in mind, this article is limited in the following ways:
- it only covers Missouri nonprofit corporations (not all nonprofits are incorporated)
- it only covers nonprofits that have applied to the IRS and been approved specifically as 501(c)(3) tax-exempt organizations (not all nonprofits are exempt from paying taxes, and not all tax-exempt nonprofits are 501(c)(3) organizations)
- it only covers nonprofits considered to be “public benefit corporations” under Missouri law (any Missouri nonprofit that is a 501(c)(3) organization is by definition a Missouri “public benefit corporation”); and
- it only covers voluntary dissolution based on a decision by the nonprofit’s directors and, where applicable, the nonprofit’s members (a nonprofit may be involuntarily dissolved through a court order, or for administrative reasons such as failing to file a corporate registration report or pay required fees).
Benefits of Formal Dissolution
Your nonprofit corporation is registered with the State of Missouri. Through the dissolution process, you will officially cancel that registration and officially end the corporation’s existence. More specifically, for a nonprofit that’s closing down, a properly-handled dissolution achieves at least two important goals. First, it ultimately will put your organization beyond the reach of creditors and other claimants. Second, it will allow you to fulfill your legal obligations regarding the proper distribution of any remaining corporation assets.
The procedure for authorizing dissolution will vary depending on whether, in addition to a board of directors, your nonprofit corporation also has members. If you’re unsure of whether your nonprofit has members, you should check your articles of incorporation, bylaws, or similar organizational documents.
Missouri’s Nonprofit Corporation Act (“NCA”) provides for voluntary dissolution through either:
- a vote of the directors; or
- if there are members, a vote of the directors and a vote of the members.
If your nonprofit does not have members, it is up to the board to approve dissolution. You should look to your articles of incorporation and bylaws for specific rules and requirements regarding the board approval process. Generally, you will need a resolution to dissolve, and dissolution must be approved by a majority of the directors in office at the time of approval. You must give at least two days’ advance notice of the meeting on dissolution to all directors. In approving dissolution, the directors must also adopt a plan of dissolution that indicates to whom the nonprofit’s assets will be distributed after all creditors have been paid.
If your nonprofit has voting members, the board first must approve a resolution to dissolve the corporation and then submit it to the members. If the board wants the dissolution to be approved by the members at a membership meeting, members must be given at least 10 days advance notice; the notice must include a copy or summary of the plan of dissolution. A two-thirds majority of the members, or a majority of the membership voting power, whichever is less, is required to approve the dissolution. The board also may obtain approval from the members through written consent or written ballot, in which case the material soliciting the consent must contain a copy or summary of the plan of dissolution. Approval by written consent may require approval by 80% of the members’ voting power—check with a local attorney for more details.
The NCA also allows for the possibility that your articles of incorporation or bylaws include a provision requiring that dissolution be approved by people other than the board or members. If your articles or bylaws do contain such a provision, you will also need to obtain approval, in writing, from those other people.
Make sure to properly record the board’s resolution and plan of dissolution, the directors’ votes, and, where necessary, the members’ votes. You’ll need this information for filings with the state and the IRS.
Certain Matters are Unchanged by Dissolution
Among other things, dissolution alone does not:
- transfer title to the nonprofit’s property
- subject the nonprofit’s directors or officers to standards of conduct different from those that applied before dissolution
- change quorum or voting requirements for the nonprofit’s board of directors or members, change provisions for selection, resignation, or removal of the nonprofit’s directors or officers, or change provisions for amending the nonprofit’s bylaws
- prevent commencement of a proceeding by or against the nonprofit
- abate or suspend a proceeding pending by or against the nonprofit on the effective date of dissolution; or
- terminate the authority of the nonprofit’s registered agent.
In addition, you must continue to file corporate registration reports and pay required taxes (if any) until the effective date of your articles of termination.
Initial Notice to the Attorney General
You must send written notice of your intention to dissolve to the Attorney General (“AG”) at or before the time you submit articles of dissolution to the Secretary of State (“SOS”). Your notice to the AG must include a copy or summary of your plan of dissolution. In response to the notice, the AG should provide written consent to your nonprofit that it can proceed with dissolution. You are prohibited from transferring any of your nonprofit’s assets until 20 days after you have given notice to the AG, or before the AG provides its written consent, whichever is earlier.
Articles of Dissolution
After your board (and, where applicable, voting members) have approved the dissolution, you’ll need to file articles of dissolution with the SOS. Strictly speaking, the NCA does not require you to file this document, instead stating that an nonprofit “may” dissolve by filing the articles. However, if you don’t file articles of dissolution, you won’t properly complete the voluntary dissolution of your nonprofit organization.
The articles of dissolution must contain:
- the name of your nonprofit
- the date dissolution was authorized
- a statement that dissolution was approved by a sufficient vote of the board
- if approval of members was not required, a statement to that effect
- if approval by members was required, (a) the designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on dissolution, and number of votes of each class indisputably voting on dissolution; and (b) either the total number of votes cast for and against dissolution by each class entitled to vote separately on dissolution or the total number of undisputed votes cast for dissolution by each class and a statement that the number cast for dissolution by each class was sufficient for approval by that class
- if approval of dissolution by some person or persons other than the members or the board is required, a statement that the approval was obtained; and
- a statement that the nonprofit gave the required notice to the AG regarding the intention to dissolve and plan of dissolution.
A blank form for the articles of dissolution (Form Corp. 45) is available for download from the SOS website. There is a $10 fee to file the articles of dissolution.
After your nonprofit has formally authorized dissolution, it continues to exist only for the purpose of taking care of certain final matters that, collectively, are known as “winding up” the company. It may be appropriate to designate one or more officers and/or directors to handle these matters.
Generally speaking, distributions of money and property are made only after you have paid off all of your nonprofit’s debts. When it comes to distributions, the NCA has specific rules you will need to follow. For example, your nonprofit must return any items that were loaned to it on the condition that they would be returned upon dissolution. In addition, after paying off debts and returning loaned assets, a dissolving 501(c)(3) organization must distribute its remaining assets for tax-exempt purposes. In practice, this usually means distributing assets to one or more other 501(c)(3) organizations. Other distribution rules, contained in your articles of incorporation, bylaws, or a plan of distribution, may also apply. If you have any questions, you should consult with a lawyer.
Notice to Creditors and Other Claimants
One other part of winding up your dissolved nonprofit involves giving notice of its dissolution to creditors and other claimants. Giving notice is optional. However, doing so will help limit your nonprofit’s liability and allow it to more safely distribute its assets to other nonprofit organizations.
Under the NCA, one way to give notice is by sending a written document directly to known claimants after dissolution. Proper written notice must:
- describe information that must be included in a claim
- provide a mailing address where a claim may be sent
- state the deadline, which may not be fewer than 180 days from the effective date of the written notice, by which your dissolved nonprofit must receive the claim; and
- state that the claim will be barred if not received by the deadline.
You also may give notice to potential claimants by publishing in a newspaper. As with sending direct notice to known claimants, there are specific rules for giving notice through publication. Generally speaking, claimants have two years after the date of newspaper publication to bring a claim.
Some of the rules for giving notice and responding to claims can be hard to understand. Therefore, if you choose to give claimants notice, you should strongly consider getting assistance from a business attorney.
Final Notice to the Attorney General
When “all or substantially all” of your nonprofit’s assets have been transferred, your board of directors must deliver to the AG a list showing who, other than creditors, received those assets. More specifically, the list must show the addresses of each of these persons or entities and what assets they received.
Articles of Termination
After your nonprofit has disposed of all claims against it, you must file articles of termination with the SOS. The articles of termination must contain:
- the name of your nonprofit
- the date of your nonprofit’s dissolution
- a statement that your nonprofit has disposed of all claims filed against it pursuant to the rules in the NCA; and
- a statement that all of your nonprofit’s debts, obligations, and liabilities have been paid and discharged, or adequate provision has been made therefor.
An articles of termination form (Form Corp. 60A) is available for download from the SOS website. When using the SOS form—which is recommended—you’ll also need to provide the state-issued charter number for your nonprofit. There is a $10 fee to file the articles of termination.
NOTE: The SOS states that you will need to obtain tax clearance from the Department of Revenue (“DOR”) before you can submit your articles of termination. The form for requesting tax clearance (DOR Form 943), along with instructions, is included with the downloadable articles of termination form. You should include the tax clearance certificate you receive from the DOR with your articles of termination when you file them with the SOS.
Federal Tax Note
For federal tax purposes, you’ll need to file IRS Form 990 or IRS Form 990-EZ. You must include a completed Schedule N (Liquidation, Termination, Dissolution, or Significant Disposition of Assets), as well as copies of your articles of dissolution, resolution to dissolve, and plan of dissolution. When completing Form 990 or Form 990-EZ, you’ll need to check the “Terminated” box in the header area on Page 1 of the return. For additional, more specific guidance, check out Every Nonprofit’s Tax Guide, by Stephen Fishman (Nolo), go to the IRS website, or consult with a tax professional.
You can find additional information, such as forms, mailing addresses, phone numbers, and filing fees, on the SOS website.
Final Note: Dissolving and winding up your nonprofit corporation is only one piece of the process of closing your organization. For further, general guidance on many of the other steps involved, check Nolo’s 20-point checklist for closing a business and the Nolo article on what you need to know about closing a business.