“Charitable organizations serve and strengthen Montana communities through their contributions to health, the environment, education, spiritual development, research, the arts and human services.”
The attorney general, as the state’s chief law enforcement officer, has authority to supervise charitable organizations and plays an important role in ensuring that all Montanans continue to benefit from the services they provide. Montana law does not require charities operating in the state to register with the Attorney General’s Office. However, charities that solicit contributions through telemarketing must comply with Montana’s telemarketing laws.
The following information is provided to help charities operating in Montana comply with state regulations.
Nonprofit corporations are created to support charitable, religious, educational, scientific or artistic endeavors. Unlike for-profit corporations, nonprofits:
- must be permanently dedicated to an exempt purpose as defined by the Internal Revenue Service, and
- may not distribute profits to any corporate member.
- Montana Nonprofit Association
In Montana, the Montana Nonprofit Corporation Act governs the organization and operation of nonprofit corporations. Section 35-2-126 of the Montana Code Annotated (MCA) requires that an organization must be designated as a mutual benefit, public benefit or religious corporation, as determined by the articles of incorporation filed with the Secretary of State’s Office.
- Public Benefit Corporations such as civic and community groups, foundations and other charities serve the public and may have members. A public benefit corporation operates for public or charitable purposes, and members may not sell their interests or receive dividends from the organization.
- Mutual Benefit Corporations such as private clubs or associations serve their members. Examples include trade associations, social clubs and fraternal organizations. Members are not entitled to receive dividends while the organization is operating, but they are entitled to sell their memberships and receive income or assets should the organization dissolve. Section 35-2-725, MCA.
- Religious Corporations such as some churches and religious orders, serve religious purposes and may not have members. The IRS provides useful tax-related information for religious organizations.
Important Provisions of the Montana Nonprofit Corporation Act
The duties of nonprofit directors include:
- acting in good faith, prudently and in the best interests of the corporation. Section 35-2-416, MCA.
- avoiding conflicts of interest. In some instances, this may require taking specific steps to avoid a conflict, including obtaining the attorney general’s approval of a transaction when directors are unable to do so without a conflict. Section 35-2-418, MCA.
Officers also must act for the corporation in good faith, prudently and with the best interest of the corporation in mind. Section 35-2-441, MCA.
Public benefit and religious corporations must provide written notice to the attorney general 20 days before the organization in any way disposes of all or substantially all of its property. This allows the attorney general to review the proposed transfer or disposal, address any issues and commence any necessary court proceedings. Section 35-2-617(7)(a), MCA. Dissolution. Public benefit and religious corporations must submit a completed Notice of Dissolution form to the attorney general if the organization intends to dissolve. The Notice of Dissolution must:
- be given to the attorney general at or before the time the company files articles of dissolution with the secretary of state;
- include a summary of the organization’s plan for dissolution, describing the organization’s assets and explaining where they will go upon dissolution; and
- include copies of the dissolving corporation’s: (1) Articles of Incorporation; (2) Bylaws; (3) any Amendments to the Articles of Incorporation or Bylaws; and (4) 990’s for the past three years.
The attorney general reviews the plan to ensure that company assets are transferred to another public benefit or religious corporation in accordance with Section 501(c)(3) of the Internal Revenue Code. Corporation assets cannot be transferred or conveyed for at least 20 days unless the attorney general has waived the notification requirements. Section 35-2-722, MCA. See Section 35-2-725, MCA or IRS exemption requirements for additional information.
Mutual benefit corporations that intend to dissolve should consult Section 35-2-725, MCA for important information about distributing or transferring assets.
Nonprofit corporations are required to notify the attorney general of any legal actions taken either against them or on their behalf under the Nonprofit Corporation Act. The act authorizes the attorney general to intervene in such legal proceedings or to initiate them to enforce Montana law. Section 35-2-131, MCA.
- Dissolution by the Attorney General. The attorney general also can initiate legal action to dissolve a public benefit or religious corporation that breaks the law by, for example, wasting or misusing corporate funds. Section 35-2-728, MCA.
Charitable trusts are created for a variety of charitable purposes that benefit the public, the relief of poverty, the advancement of education or religion, the promotion of health, governmental or municipal purposes, or other purposes that benefit the community. Section 72-38-405, MCA.
State law relating to oversight of charitable trusts and prohibition of certain activities are included in Title 72, Chapter 38, MCA, and are summarized below.
General Duties of Trustees. Trustees have a duty to:
- Administer the trust expeditiously and in good faith, in the interests of the beneficiaries. Section 72-38-801, MCA.
- Keep the beneficiaries with the most significant interests in the trust (“qualified beneficiaries”) reasonably informed of the trust and its administration, unless the trust instrument specifically provides to the contrary. Section 72-38-813, MCA.
Prohibited Conduct. Trustees are prohibited from:
- engaging in self-dealing
- retaining excess business holdings
- making any investments that would subject trust property to tax
- making any taxable expenditure
Duty to Report.
Unless the Trust instrument specifically provides to the contrary, trustees must make reports annually to those beneficiaries with the most significant interests in the trust (“qualified beneficiaries”). The reports must include:
- A listing of trust assets
- The fair market values of trust assets if those values are readily ascertainable or if the assets are traded on an established public market, such as stocks listed on an exchange
- Trust liabilities
- Trust receipts
- Trust disbursements, including the source and amounts of trustee compensation.
Section 72-38-813, MCA.
Oversight Authority of Attorney General. As Montana’s chief law enforcement officer, the attorney general protects the interests of the state’s public beneficiaries. The attorney general may bring legal action to insure that the trust assets are properly distributed and that the charitable purpose is carried out. Sections 72-38-221, 72-38-110, and 72-38-405 MCA.
Change-of-Purpose Proceedings. Modification or termination of an irrevocable, charitable trust under section 72-38-411, MCA, requires the attorney general’s consent.