Foreign Nonprofit Corporations: Authority to Transact Business in Oregon

Oregon calls any corporation not for profit that was organized under laws other than its own a foreign nonprofit corporation. It can have been formed in another state or abroad. Authority is permission to carry on business in Oregon. It does not make the organization an Oregon nonprofit, does not alter its home charter, and does not give it any tax status.

The governing statute is ORS chapter 65, and its starting rule in section 65.701 is that no foreign nonprofit corporation transacts business in Oregon until the Secretary of State authorizes it. Authority takes effect when the Corporation Division files the application (ORS 65.714). Once granted, the organization has the same rights, privileges and duties as an Oregon nonprofit of like character, with no regulation of its internal affairs.

"Transacting business" is undefined for nonprofits as well. What ORS 65.701(2) supplies is an open-ended set of exclusions, spelled out here:

• Litigation: bringing, defending or settling a proceeding
• Board or member meetings and other internal governance
• Bank accounts
• Offices handling transfers of the corporation's own memberships or securities, and trustees for them
• Selling through independent contractors
• Sales orders that turn binding only after acceptance from outside the state
• Taking on debt, or holding mortgages and other security interests
• Collecting debts and enforcing security interests
• Owning real or personal property, without more
• An isolated transaction finished in 30 days, outside a series of like transactions
• Interstate commerce
• Soliciting funds

Fundraising and the last item

That final entry is unique to the nonprofit list. A nonprofit that does nothing in Oregon beyond asking for donations is not, by that activity alone, treated as transacting business under Oregon's authority statute. Keep in mind that this statute only addresses the Secretary of State's authority requirement. The Department of Justice regulates charitable activity in Oregon, and public benefit nonprofits may have to register with it separately.

The practical test

The Secretary of State's FAQ asks if profit from Oregon activity is expected. Its examples (an office, a place of regular operations, staff providing services, goods in stock, regular income from the Oregon economy) still suggest the agency's view of a real Oregon presence. If your program staff, offices or recurring paid activity are in Oregon, plan on applying. For a close call, talk to an Oregon attorney.

The fee is $50, nonrefundable. Online filing is something the Secretary of State's FAQ describes just for foreign business corporations and LLCs, so a foreign nonprofit should plan on the paper form unless the Corporation Division confirms an online route. Mail it with a check made out to "Corporation Division." The office will not take it, or a payment, by email.

What the form asks for

• The corporation's name, identical to the home record, punctuation included
• A home registry number that Oregon can look up, or the certificate described below
• The date of incorporation and duration if it is not perpetual
• The state or country of incorporation
• The type of corporation, chosen from public benefit, mutual benefit or religious (the instructions say to pick the one that applies in the home jurisdiction, and the second page of the form explains each)
• Whether the corporation will have members, answered as it applies in the home jurisdiction
• The principal office, as a street address either at home or in Oregon
• The Oregon registered agent and its Oregon street address
• An address for mailing notices
• The president and secretary, with addresses
• A signature from at least one officer or director under penalty of perjury

Everything on the form becomes public record. For the principal office, post office boxes, mail forwarders, commercial mail receiving agencies and virtual offices are all refused.

For most nonprofits, no. ORS 65.707(2) starts out asking for a 60-day-fresh certificate of existence, but it excuses any organization whose home official offers free internet access to a searchable database of corporate registrations. The form turns this into a registry number request. Only where the home state posts no status online do you enclose a certificate, and it must be no more than 60 days old on arrival.

If you need one, order it from the filing office at home. A certificate of good standing is accepted in its place. The form does not ask for an IRS determination letter, a charitable registration or the articles of incorporation.

A foreign nonprofit must continuously keep an Oregon registered agent and registered office (ORS 65.721). The statute names who may serve:

• An individual who lives in Oregon
• A corporation, domestic business corporation, domestic LLC or domestic professional corporation with an office in Oregon
• A foreign nonprofit corporation, business corporation, LLC or professional corporation that is authorized in Oregon and has an office here

The registered office is the street address of the agent's residence or office. The Secretary of State wants a street address in Oregon at which legal papers can be handed over in person during normal business hours. Its agents page also states that an organization cannot appoint itself and that whoever is named has to have consented. Mailbox-style addresses of every kind are refused. Replace an agent by filing a statement of change, which carries no Oregon fee. If the agent or office lapses, the Secretary of State can start revocation.

Name

The name should match the home record. If Oregon already has a record that cannot be told apart from yours, ORS 65.717 has you write your name as the home name, then "a corporation of," then the place where you were incorporated.

An authorized foreign nonprofit owes an annual report by its anniversary, the yearly date matching the day Oregon filed its application. The fee is $50. In the report you restate your agent and registered office, then the principal office, the officers, a description of activities, whether there are members, and the Oregon-style nonprofit type. Everything in it is measured as of 30 days ahead of the anniversary. The form is mailed about 45 days early, and ORS 65.787 says nonreceipt is not a defense.

If you fall behind

A missed report, unpaid fee, or lost agent or office puts the authority at risk. The Secretary of State gives written notice and revokes the authority if the cause is not cured within 45 days. For an organization that would be a public benefit corporation in Oregon, the Attorney General is also told. Reinstatement is open for five years.

Changes and leaving

• A changed name, duration or nonprofit type needs an amendment to the application, filed on the amendment/withdrawal form for $50.
• Withdrawal uses the same form and the same fee. The organization declares that it no longer does business in Oregon, terminates its agent's role, and lets the Secretary of State receive process on earlier claims, giving a mailing address it will keep updated for five years.
• Oregon taxes, local licenses, charitable solicitation registration and federal tax exemption are separate matters.

ORS 65.704 is the consequences statute, and it names no fine. A foreign nonprofit transacting business in Oregon without authority may not bring its own proceeding in an Oregon court until it is authorized. The same wall faces a successor or assignee, and a judge may suspend a pending case while working out whether authority was needed.

The organization is also liable to the state, year by year with a partial year counted, for an amount equal to what authority and later annual reports would have cost in fees. Nothing it did is invalidated, and it can answer lawsuits. A plaintiff may serve process on the Secretary of State, and the office does not notify the organization when that happens.

Mainstay's foreign qualification checkout leaves nonprofit corporations out; it is reserved for LLCs and for-profit corporations. The organization, or its attorney, completes the Oregon application and delivers it to the Corporation Division. Mainstay's part is the registered agent, $149 per year at a flat price that stays put when you renew.

The Oregon street address of Mainstay is what goes on the application as the agent's address, and the state makes it public. If a summons or comparable paper is served at that address, a scan is posted under your login the same business day, free. Free scans also go to the first three government mailings you receive in a year. Where a different agent is currently registered, Mainstay submits the change of agent on your behalf, and the Oregon fee for that is zero. Details are on the Oregon registered agent page. Mainstay prepares filings and serves as an agent; it does not give legal advice. Because the Oregon nonprofit statute lists the types of company that may be agent, ask Mainstay support to confirm eligibility for your organization before you order.