Forming a Not-for-Profit Corporation in New York

This brochure has been developed to answer your questions regarding the formation of a not-for-profit corporation and to assist in the filing of a Certificate of Incorporation. This brochure contains:

  • Answers to frequently asked questions;
  • A form for filing the Certificate of Incorporation and instructions for its completion and filing;
  • An Application for Reservation of Name (optional); and
  • Information about fees.

The staff of the Department of State is dedicated to providing quality service. Although we cannot provide legal advice, we are available to assist in answering questions about filing the Certificate of Incorporation. Please contact the Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231 or one of our representatives at (518) 473-2492 with any questions you may have.


What is a Not-for-Profit Corporation?

A not-for-profit corporation is a corporation formed pursuant to the Not-for-Profit Corporation Law. Not-for-Profit Corporation Law Section 201 (Purposes) provides a list of general purposes for which a not-for-profit corporation may be formed. The Certificate of Incorporation of a not-for-profit corporation must set forth the specific purposes for which the corporation is being formed. The corporation may not be formed for financial gain. Please see Section 102(a)(5) of the Not-for-Profit Corporation Law for the definition of a not-for-profit corporation.


How Do I Form a Not-for-Profit Corporation?

One or more persons, called "incorporators," may form a not-for-profit corporation. Incorporators are natural persons who are 18 or older. The incorporator(s) signs the Certificate of Incorporation. The completed Certificate of Incorporation is filed with the Department of State pursuant to Section 402 of the Not-for-Profit Corporation Law.


How do I Incorporate a Church or Other Religious Denomination?

Religious Corporations Law Section 2 defines a religious corporation as a corporation created for religious purposes to enable its members to meet for divine worship or other religious observances. Corporations formed for the purpose of operating a church or other religious denominations are filed pursuant to the Religious Corporations Law.

Corporations formed pursuant to the Religious Corporations Law are generally created by filing a Certificate of Incorporation with the office of the county clerk in the county in which the principal office or place of worship is located. Religious corporations that do not have, or do not intend to have, a principal office or place of worship in New York State file their Certificate of Incorporation with the Department of State. (See Section 3 of the Religious Corporations Law.)

Any questions you may have regarding the formation of a corporation under the Religious Corporations Law should be directed to an attorney of your choice or to the county clerk’s office in the county where the principal office or place of worship is located.


Are There Any Special Responsibilities Associated With Forming a Not-for-Profit Corporation?

The existence of the corporation begins upon the filing of the Certificate of Incorporation with the Department of State. After the corporate existence has begun, an organization meeting of the initial directors designated in the Certificate of Incorporation must be held for the purpose of adopting by-laws, electing directors and the transaction of any other business. (See Section 405 of the Not-for-Profit Corporation Law.)

The corporation is required to keep correct and complete books and records of account and must keep minutes of the proceedings of its members, board of directors and executive committee, if any. The corporation must also keep a record containing the names and addresses of all members, the number of capital certificates held by each member and the dates when they respectively became the owners of record thereof. (See Section 621 of the Not-for-Profit Corporation Law.)

In addition, a meeting of members must be held annually for the election of directors and the transaction of other business on a date fixed by or under the by-laws. (See Section 603 of the Not-for-Profit Corporation Law.)

Not-for-profit corporations formed for charitable purposes may be required to register with the Office of the Attorney General, Charities Bureau, Registration Section, 120 Broadway, New York, NY 10271. The telephone number is (212) 416-8415.


Do I Need a Lawyer?

The Department of State recommends that you consult a private attorney and an accountant regarding the formation of a not-for-profit corporation.


When I File the Certificate of Incorporation, What Will I Receive From the Department of State?

The Department of State issues an official filing receipt to the filer of the Certificate of Incorporation. The filing receipt reflects the date of filing, the name of the corporation, an extract of information provided in the Certificate of Incorporation and an accounting of fees paid. Filers should verify that this information is correct.

The filing receipt is your proof of filing. The filing receipt should be retained with the corporation’s permanent records. The Department of State does not issue duplicate filing receipts to replace those lost or destroyed.


Where Do I Get a Corporate Kit and Corporate Seal?

Corporate kits may be purchased from a legal stationery store. A corporate kit usually contains a corporate seal and forms for the adoption of by-laws and recording the minutes of meetings. Rather than composing their own forms, some may find it easier to use the preprinted forms provided in a corporate kit. Please note that New York State law does not require a corporation to have a seal.


Instructions for Completing the Certificate of Incorporation

A sample Certificate of Incorporation form has been developed to meet the basic requirements of the Not-for-Profit Corporation Law. The form does not include any optional provisions permitted by law. A Certificate of Incorporation may include other provisions consistent with law. You are not required to use this form. You may draft your own form or use forms available from legal stationery stores.

The Department of State must make an official record of the completed Certificate of Incorporation presented for filing. The Department will not accept papers incompatible with its recording technology. All entries and signatures should be typewritten or legibly printed in black ink on white paper. Avoid dark paper, small or light type, outline or condensed fonts, colored inks, etc.

Paragraph First - Corporation Name

Enter the name of the corporation on the line in the certificate’s title. Also enter the name of the corporation in Paragraph First and in the title of the certificate on the last page of the form. The name of the corporation must be exactly the same in all three places, including spacing and punctuation.

Choosing the Name of the Corporation

First, Section 301(a)(1) of the Not-for-Profit Corporation Law requires that the name of the corporation contain one of the following words: Incorporated, Corporation or Limited, or one of the following abbreviations: Inc., Corp. or Ltd. This requirement does not apply to a corporation formed for charitable or religious purposes, or for purposes which require the approval of the Commissioner of the Office of Children and Family Services or the Public Health Council.

Second, the name of the corporation must be distinguishable from the names of other corporations, limited liability companies and limited partnerships already on file with the Department of State.

Third, Sections 301 and 404 of the Not-for-Profit Corporation Law includes provisions relating to restrictions on the use of certain words and phrases in the name of the corporation. Generally, the name of the corporation may not include a word or phrase restricted by another statute unless the restriction has been complied with. In addition, certain words and phrases require the consent or approval from another agency prior to filing the Certificate of Incorporation with the Department of State.

The proposed name of the corporation can be searched for availability prior to submitting the Certificate of Incorporation for filing by writing to the Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231. The written inquiry should state that you wish to determine the availability of a corporate name (or names) and list the name (or names) to be searched. There is a $5 fee for each corporate name to be searched for availability, which must accompany the request. Searching the availability of a corporate name does not reserve the name.

Some filers may wish to reserve the corporate name prior to filing the Certificate of Incorporation. To reserve a corporate name, file an Application for Reservation of Name. A form for that purpose is part of this brochure. The fee for filing an Application for Reservation of Name is $10. The filing of an Application for Reservation of Name is optional. An Application for Reservation of Name holds the name for 60 days and may be extended twice for additional periods of 60 days. The fee to extend the reservation of name is also $10. The filing receipt issued by the Department of State for the Application for Reservation of Name must accompany the Certificate of Incorporation when presented to the Department of State for filing. The filing receipt issued by the Department of State for an Application for Reservation of Name must also accompany any request to extend the name reservation.

Paragraph Second - Not-for-Profit Corporation Defined

The Certificate of Incorporation must contain a statement that the corporation is a corporation as defined in Section 102(a)(5) of the Not-for-Profit Corporation Law. (See "What is a Not-for-Profit Corporation" in this brochure.) The Certificate of Incorporation contains the required language in Paragraph Second. Nothing more needs to be added to this paragraph.

Paragraph Third - Purpose or Purposes

Indicate in Paragraph Third the purpose or purposes for which the corporation is being formed. The purpose or purposes must clearly and fully describe the activities of the corporation.

Certain purposes, such as the establishment or operation of any aged care accommodation or adult care facility, the establishment or operation of a substance or alcohol abuse program, an educational purpose in any way or the promotion of science, literature, art or history requires that the consent or approval of another agency be attached to the Certificate of Incorporation when it is submitted to the Department of State for filing. Please be sure to review Section 404 of the Not-for-Profit Corporation Law to determine whether any consents or approvals are required.

The following is a partial list of agencies that must consent to, or approve, the filing of certain Certificates of Incorporation prior to filing with the Department of State. If you have any questions concerning any consent or approval that may be required, please contact the agency at the address or telephone number below:

Agency Consent or Approval Required From Applicable Section of the Not-for-Profit Corporation Law and Purpose Requiring Consent or Approval
Office of the Attorney General
Antitrust Bureau
120 Broadway, 26th Floor
New York, NY 10271
(212) 416-8436
Section 404(a) - formation of a trade or business association.
Office of Children and Family Services
52 Washington Street
Rensselaer, NY 12144
(518) 474-3333
Section 404(b) - institutions for children; care of destitute, delinquent, abandoned, neglected or dependent children; adoption services; establishment or operation of a home or shelter for unmarried mothers; residential programs for victims of domestic violence or the solicitation of contributions for any such propose.
Department of Health
Division of Legal Affairs
Corning Tower, Room 2482
Empire State Plaza
Albany, NY 12237
(518) 473-3233
Sections 404(b) - establishment or operation of any aged care accommodation; adult care facility; enriched housing programs; residences for adults or the solicitation of contributions for any such purpose.
Department of Education
Office of Counsel
State Education Building, Room 148
Albany, NY 12234
(518) 473-8296

Section 404(d) - promotion of science, literature, art, history or other department of knowledge; any educational purpose.

The Department of Education requires a $10 fee to obtain consent.

Public Health Council
Department of Health
Division of Legal Affairs
Corning Tower, Room 2482
Empire State Plaza
Albany, NY 12237
(518) 473-3233
Sections 404(o) and (t) - establishment or maintenance of a hospital or facility providing health related services or the solicitation of contributions for any such purpose.
Office of Mental Retardation & Developmental Disabilities
Office of Counsel
44 Holland Avenue
Albany, NY 12229
(518) 474-7700
Section 404(q) - establishment or operation of a facility for which an operating certificate from the commissioner of Mental Retardation and Development Disabilities is required by Article 16 or 31 of the Mental Hygiene Law or the solicitation of contributions for any such purpose.
Office of Alcoholism and Substance Abuse Services
Bureau of Certification
1450 Western Avenue
Albany, NY 12203-3526
(518) 485-2251
Section 404(u) - establishment or operation of a substance abuse, substance dependence, alcohol abuse, alcoholism, chemical abuse or dependence program or the solicitation of contributions for any such purpose.


Paragraph Fourth - Type

The corporation must designate its "type" in Paragraph Fourth. The purpose or purposes of the corporation dictate the not-for-profit corporation’s "type." A corporation’s "type" is determined by Section 201 of the Not-for-Profit Corporation Law. There are four types of not-for-profit corporations:

Type A - A not-for-profit corporation formed for any lawful non-business purpose or purposes including, but not limited to, any one or more of the following non-pecuniary purposes: civic, patriotic, political, social, fraternal, athletic, agricultural, horticultural, animal husbandry, and for a professional, commercial, industrial, trade or service association.

Type B - A not-for-profit corporation formed for any one or more of the following non-business purposes: charitable, educational, religious, scientific, literary, cultural or for the prevention of cruelty to children or animals.

Type C - A not-for-profit corporation formed for any lawful business purpose to achieve a lawful public or quasi-public objective. Note: This means that although the corporation may be organized for a purpose normally carried on by a business corporation for profit, its purpose must be non-pecuniary (formed for a purpose other than making money). It is, therefore, necessary to include a separate statement in Paragraph Third describing the lawful public or quasi-public objective each business purpose will achieve.

Type D - A not-for-profit corporation formed under two New York laws for any business or non-business, or pecuniary or non-pecuniary, purpose or purposes when such formation is authorized by any other law of New York. For example, a corporation formed under the Not-for-Profit Corporation Law and the Private Housing Finance Law.

Paragraph Fifth - County Location

Paragraph Fifth must indicate the county within New York State where the office of the corporation will be located. Enter only the name of a county in New York State. Do not include the street address. In New York City, the borough of Manhattan is in New York County, the borough of Brooklyn is in Kings County and the borough of Staten Island is in Richmond County. Bronx and Queens are boroughs and counties. Please note that such office need not be a place where activities are conducted by the corporation.

Paragraph Sixth - Initial Directors

Complete Paragraph Sixth by listing the names and addresses of at least three (3) initial directors of the corporation. Please note that titles such as president, vice-president, etc. may not be assigned to the initial directors.

Paragraph Seventh - Designation for Service of Process

The corporation must designate the Secretary of State as its agent for service of process. Complete Paragraph Seventh by providing an address within the United States to which the Secretary of State may mail a copy of any process received. "Process" means the papers that acquire jurisdiction of the corporation in a legal action. To avoid a default judgment, the corporation should keep the address for service of process current by filing a Certificate of Change or Certificate of Amendment, as appropriate.

Paragraph Eighth - Tax Exempt Status

A corporation formed pursuant to the Not-for-Profit Corporation Law is not automatically exempt from federal and state taxes. To qualify for tax exemption status under the Internal Revenue Code, your organization must be organized for one or more of the purposes specifically designated in the Code. In addition, the Internal Revenue Service (IRS) will require that certain provisions be included in your Certificate of Incorporation prior to granting tax exemption. The sample certificate of incorporation form does not contain the provisions required by the IRS. Sample provisions may be obtained from the IRS at the following address: Internal Revenue Service, Eastern Area Distribution Center, P.O. Box 85074, Richmond, VA 23261-5074. Telephone inquiries to the IRS may be made by calling 1-877-829-5500. Complete Paragraph Eighth only if you intend to apply for an exemption from federal taxation as an organization described in Section 501(c) of the Internal Revenue Code.

Questions concerning state tax exemption should be directed to the New York State Department of Taxation and Finance, Exempt Organizations Unit, Building 8, W.A. Harriman State Campus, Albany, NY 12227. Telephone inquiries to the Department of Taxation and Finance may be made to 1-800-972-1233.

Signing the Certificate of Incorporation

The incorporator or incorporators, if there is more than one, must sign the Certificate of Incorporation. The incorporator(s) must type or print their name and address.

Filer

Provide the name and address of the filer of the Certificate of Incorporation. The Department of State issues the official filing receipt to the filer of the Certificate of Incorporation.


Filing Fee

The fee for filing the Certificate of Incorporation is $75. The fee may be paid by cash, check, money order, MasterCard, Visa or American Express. Checks and money orders should be made payable to the "Department of State." Please do not send cash through the mail.

The Department of State’s Division of Corporations accepts MasterCard, Visa and American Express for the payment of fees. Complete and sign the Credit Card/Debit Card Authorization Form and submit it to the Division of Corporations with your Certificate of Incorporation. The Credit Card/Debit Card Authorization Form is available from the Department of State website or by calling (518) 473-2492.


Filing the Certificate of Incorporation

By mail - Send the completed Certificate of Incorporation with any consents and approvals you have obtained and the filing fee of $75 (or a Credit Card/Debit Card Authorization Form) to the Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, New York 12231.

In person - Deliver the completed Certificate of Incorporation, with any consents and approvals you have obtained and the filing fee of $75 to the Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, 6th Floor, Albany, NY 12231. The Division of Corporations is open from 9:00 a.m. to 4:30 p.m., Monday through Friday.

By fax - Fax the completed Certificate of Incorporation with any consents and approvals you have obtained and a Credit Card/Debit Card Authorization Form to the Division of Corporations at (518) 474-1418.


Expedited Filing

The Division of Corporations offers optional expedited processing of documents. The additional, non-refundable fee for expedited processing must be paid by a separate check or money order or indicated in the appropriate space on the Credit Card/Debit Card Authorization Form. Processing of your document begins when the document is received by the appropriate unit of the Division of Corporations. The fee for expedited processing is charged to the filer regardless of whether or not the document is accepted for filing by the Department of State.

A written request for the expedited processing desired must be submitted with the Certificate of Incorporation and must indicate the level of expedited processing requested. Certificates of Incorporation submitted through the mail should be marked with the notation "Expedited Handling" on the envelope and in your cover letter. Certificates of Incorporation submitted via fax with the Credit Card/Debit Card Authorization Form must specifically indicate the level of expedited processing requested.


Certified Copies

A certified copy of the filed Certificate of Incorporation may be obtained from the Department of State. A certified copy may be obtained by submitting a written request along with the Certificate of Incorporation, or at any time after the filing of the Certificate of Incorporation with the Department of State. The fee for each certified copy is $10.


Filing Receipt

The Department of State issues an official filing receipt to the filer of the Certificate of Incorporation. The filing receipt is mailed two business days after the Certificate of Incorporation is filed by the Department of State.

You may check on the status of a filed Certificate of Incorporation by accessing our Corporation and Business Entity Database on the Department of State’s website at www.dos.ny.gov. The Corporation and Business Entity Database is normally current through the previous business day.

Please note that the filing receipt and certified copy, if requested, are sent by first class mail. The filing receipt and certified copy, if requested, are mailed separately. We do not provide these documents by fax. You may request that your filing receipt be returned to you by overnight delivery service by: (1) completing a shipping label from your overnight delivery service provider and mailing it to the Department of State with your Certificate of Incorporation; or (2) including a written request to return your filing receipt by overnight delivery service and providing your account number with the overnight delivery service provider; or (3) including a written request to return your filing receipt by overnight delivery service and a request to charge your credit card with the shipper for these charges. A separate request may be made for overnight delivery service for certified copies. The Division is unable to utilize UPS.


Contacting the Division of Corporations

If you require technical advice or have any questions regarding the filing of your Certificate of Incorporation, please contact the Department of State, Division of Corporations, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231. The telephone number of the Division of Corporations is (518) 473-2492. The Department of State’s website address is www.dos.ny.gov. The email address is corporations@dos.ny.gov .