A Nonprofit Corporation Seeking Authority in Kentucky

Kentucky's nonprofit corporation statute has no foreign procedure of its own. KRS 273.361 simply tells each foreign nonprofit corporation transacting business in the Commonwealth to comply with KRS 14A.9-010, and that section bars any foreign entity from transacting business until a certificate of authority has been obtained from the Secretary of State. Home charter and home standing stay put. The certificate gives the nonprofit permission to operate in Kentucky and nothing more.

The Secretary of State's Frankfort office for business filings reviews applications. A single form handles every entity type, so on Form FBE you check the box for a nonprofit corporation.

The statute does not explain what transacting business means. Instead KRS 14A.9-010(2) lists activities that fall outside it, introduced as examples, and subsection (3) adds that the examples are incomplete. A nonprofit is not transacting business in Kentucky merely by:

• Bringing, defending or settling a legal proceeding
• Holding board or member meetings and managing other internal matters
• Keeping a bank account
• Operating an office to transfer or register its memberships or securities, or having trustees and depositaries for those holdings
• Selling through independent contractors
• Soliciting orders, through the mail, staff or agents, that do not bind until they are accepted outside Kentucky
• Entering into debt, mortgages and security interests
• Pursuing unpaid debts and enforcing the collateral behind them
• Owning real or personal property, without more
• Completing one isolated transaction in thirty days or less, outside any repeated pattern of like transactions
• Engaging in interstate commerce

Programs, offices and property

Many nonprofits hold real estate, and bare ownership is on the list. A parish, school or charity that merely holds a Kentucky building is not required to apply for that reason alone. Running programs here, hiring local staff or opening an office carries the activity past the examples. The section also does not settle which contacts let a court serve the nonprofit or let the state tax it, so tax exposure can exist even without a certificate. For a close call, consult a Kentucky attorney.

The online route is FastTrack, the Secretary of State's filing system. The paper route is to mail or hand-deliver the form to Frankfort with a single exact or conformed copy. Payment options are cash, a check payable to the Kentucky State Treasurer, a prepaid account with the office, or a card from an approved issuer. The fee is $90, and it matches the for-profit corporation fee even though forming a nonprofit inside Kentucky costs far less. No expedite option is listed. The office usually processes documents the day they arrive, and may need up to three business days. The filing is effective when made, and a stamped postcard goes to the principal office.

Information requested

• Entity type (nonprofit corporation), and the name exactly as in the home-state record
• A Kentucky name, only if the home name is not available
• Jurisdiction of organization, organization date, and duration
• A mailing address for the principal office
• A street address for the Kentucky registered office, with the agent's name
• Names and business addresses of the officers and directors
• Certification that the nonprofit validly exists at home

An officer, director or other authorized person signs, and no notary is needed. The agent signs the consent line or delivers consent in a separate document.

Kentucky does not request a certificate of existence or good standing. The only home-state assurance is item 10, in which the signer certifies that the nonprofit validly exists under its home jurisdiction's laws on the filing date. KRS 14A.9-030(2) treats execution of the application as that representation. Since no document is involved, no age limit is either.

Someone is vouching for the nonprofit's status, so check it beforehand, including whether the nonprofit's own reports and agent filings at home are up to date.

The name on the form must mirror the home record. Kentucky's naming rule for a nonprofit corporation requires a closing word such as corporation, company or limited (or an abbreviation like Inc.), and a name that uses Company or Co. cannot have "and" or "&" immediately before it. When the name collides with one already of record, KRS 14A.3-040 gives two options: a fictitious name for Kentucky, entered on line 3, or an added identifier that fits the rules.

Agent requirements

For a foreign nonprofit, KRS 273.3641 points to KRS 14A.4-010. The registered agent can be a person who lives in Kentucky or an entity qualified here, and its business address is the registered office. The form's instructions bar the nonprofit from serving as its own agent. A street address is required, and a PO Box fails.

The agent consents in writing. The nonprofit must also hand its agent the details of a communications contact (a natural person, with address and telephone number), and an agent who lacks one may resign. The statute has no business-hours rule. The Secretary of State addresses its letters to the principal office rather than the agent.

The work does not end in Frankfort. Under KRS 14A.2-040, one copy of the application goes to the clerk of the county containing the registered office, and the form says to print that copy from the Secretary of State's organization search. The clerk bills its own fee under KRS 64.012, $33 for five pages or fewer.

A foreign nonprofit files the annual report that other corporations file; KRS 273.3671 refers to KRS 14A.6-010. Reports are accepted January 1 to June 30 each year, starting after the calendar year of authorization, and the fee is $15. Contents: registered office and agent, principal office address, and who the officers and directors are.

• Agent or office changes. A statement of change is $10.
• Amendments. Changed application information requires an amended certificate of authority, $40.
• Revocation. The state may revoke authority after a late annual report, or after two months with no registered office or agent. Kentucky first mails a notice to the nonprofit's main business address, and revokes only if the ground is still there 60 days on. A nonprofit that has been revoked applies again.
• Withdrawal. Form WFE costs $40. The nonprofit states that it has stopped transacting business, gives up its authority, takes away the registered agent's power to accept service, and names the Secretary of State instead.

Tax matters run through the Department of Revenue. Federal tax-exempt status and charitable solicitation registration are different processes entirely.

Under KRS 14A.9-020, a foreign nonprofit that transacts business without a certificate cannot keep a proceeding going in a Kentucky court until it obtains one. Its successors, and those assigned a claim from the business, are bound too, and a court may stay a suit to decide whether authority was needed.

On top of this, the statute puts a $2 civil penalty on every unauthorized day, collectable by the Secretary of State. With no cap, a full year totals $730. The nonprofit's acts stay valid, and it may defend itself in any proceeding.

Mainstay's qualification checkout leaves out nonprofit corporations and handles only LLCs and for-profit corporations. The nonprofit or its attorney prepares and submits Form FBE. What Mainstay offers is the Kentucky registered agent. It costs $149 every year, renewals included. Enter the agent's street address on the application; it becomes public record.

If a summons or another court paper is served on the agent, the scan lands in your account on the day it is delivered, without charge. Up to three government letters per year get the same free scan. If another agent holds the registration now, Mainstay submits the change of agent and passes on the state's change fee at cost. The Kentucky registered agent page describes the service. Mainstay does not give legal advice.