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May I use a “corporation sole” to control my nonprofit?

Your Legal Questions Answered

May I use a “corporation sole” to control my nonprofit?

I see online that there are only a few states now that allow churches/ministries to be “corporations sole” and that I must live in the state to become a corporation sole. My mother lives in one of those states, but my state doesn’t allow them.  Can I set up a corporation sole in my mom’s state using her address and register as a foreign corporation in my state to operate?  I want to use your sole member corporation concept to control my new nonprofit.

We should not confuse a “corporation sole” with the type of sole member nonprofit I often recommend for founders of new nonprofits.  A corporation sole is a specific type of organization going back to the common law of England.  One of the early descriptions was in Blackstone’s Commentaries in the 1760s.  In the period before the rise of the modern business corporation, a corporation sole was used to give royalty and church leaders legal rights not generally available to individual citizens, including the right to pass title to property to their successors in office and legal perpetuity, which they could not obtain as individuals.  It was originally used as a means to pass title to property without going through individual estates when the royal and ecclesiastical leaders passed away.  It has been distinguished from “corporations aggregate” in which many persons come together to conduct business.

Today the corporation sole is still used in the U.S. in a few states to provide a religious officer, like the bishop of a church, certain rights of a corporation and to permit the passage of title to real estate to the successor officer without any special legal action.  Unless you proclaim that you are head of a church, holding worship services with a particular religious creed and meeting the other requirements of the IRS for church designation, you can’t use a “corporation sole” as the vehicle for your new nonprofit.  You can probably use a nonprofit corporation with a sole voting member to control a new nonprofit, but it is a significantly different legal concept from a corporation sole.  (See Ready Reference Page: “Sole Member Bylaws Can Protect Founder of Nonprofit”)

Because a church does not have to apply for recognition of exemption, pay taxes, or file an annual tax information return, corporations sole are often promoted by shady consultants as a great way for individuals to dodge federal income taxes.  The IRS is aware of the concept and periodically warns the public to be wary of such scams.

Tuesday, February 23, 2021

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