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Missouri: Incorporation of a Nonprofit Corporation

A nonprofit corporation is incorporated in Missouri either pursuant to the Missouri Nonprofit Corporation Act,  Chapter 355, RSMo, or Chapter 352, RSMo, as a pro forma (“as a matter of form”) corporation.

The benefits between incorporation via chapter 352 or 355 is the point of emphasis in this post.

Formation under 352 generally requires more hurdles. Specifically, 352.060 requires that the president, secretary, and treasurer of the association (or chief executive officers) submit to the circuit court having jurisdiction where such association is located the articles of agreement, together with a petition requesting a pro forma decree of incorporation. The Court then reviews the petition and the accompanying articles to decide whether the corporation is a “benevolent association” under the meaning of 352. The court also has the discretion to appoint an amicus to help it arrive at its determination. Once established, the corporation may operate consist with its purpose, but as a pro forma corporation it is not required to file an annual report with the Missouri Secretary of State. In terms of amending the operation of the pro forma corporation, pursuant to 352.070, amendments must be done by petition to the appropriate circuit courts. The petitions must follow the same format and formalities that are required with the original pro forma petition.

Organization under 355, on the other hand, is accomplished primarily through the Missouri Secretary of State, rather than through a circuit court. A 355 corporation can be formed by filing Articles of Incorporation with the Secretary of State. With the Articles, certain bits of information must be included — such as the corporate name, name and address of each incorporator, and whether or not the corporation is a public benefit/mutual benefit corporation. Once filed, the corporation operates consistent with its purpose, bylaws and Articles of Incorporation. Generally, there is more oversight and transparency with a 355 corporation versus a 352 pro forma corporation. With amendments, pursuant to 355.551, changes in the corporation’s Articles of Incorporation are generally accomplished by internal corporate resolution. Depending on the nature of the amendment, a certain number of board/director votes is required. After a successful amendment procedure, the changes need to filed with the Secretary of State.

After weighing the benefits of which form to choose for incorporation, now would be a good time to move for tax exempt status (a subject for another time).

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