Foreign Nonprofit Corporation Registration in South Dakota

A nonprofit incorporated under another state's law is a foreign corporation in South Dakota, and chapter 47-27 of the codified laws is the chapter written for it. What South Dakota hands out is a certificate of authority, and the signature on it is the Secretary of State's. The state's form calls the filing a "non-stock" application, which refers to the usual structure of a nonprofit: members or directors, not shareholders.

The certificate lets the corporation carry on business for the purposes named in its application, and the state can later suspend or revoke it (section 47-27-4). Registering does not alter the corporation's governance at home. It only adds permission to operate in South Dakota.

Section 47-27-11 is brief. A foreign corporation has no right to do or engage in any business in South Dakota before it procures a certificate of authority. Unlike the statute for business corporations, the nonprofit chapter does not list activities that fall outside the rule, and the word "business" is not defined. A charity or association therefore has no statutory list to check for things like a bank account, an annual meeting or a lawsuit.

A rule specific to this chapter

Section 47-27-29 deems certain acts to be doing business. If a foreign nonprofit makes a contract with a South Dakota resident that either side is to perform, even partly, in South Dakota, or commits a tort in whole or in part in South Dakota against a South Dakota resident, those acts count as doing business in the state. They also work as the corporation's consent to accept service by way of the Secretary of State in any action arising from the contract or tort. Test your own programs against that rule: a service contract with a South Dakota client, a grant with performance in the state or a South Dakota event can all be covered.

Beyond that, the office's own FAQ describes any question about whether an entity from elsewhere has to register as a request for legal advice that it may not give, and sends people to counsel. For close facts, such as a single fundraising event, speak to a South Dakota attorney before you decide.

The state's name for the form is the non-stock application for certificate of authority, foreign nonprofit corporation, based on SDCL 47-27-1. The state charges $125 for it, the amount the form itself prints. Nonprofits have an e-filing route at the Business Services Online site run by the Secretary of State. The state says nonprofit corporations are exempt from the $15 paper-processing charge, so a mailed application to 500 E Capitol Ave in Pierre carries the same fee.

What the application asks for

• The exact corporate name
• The home state or country, the incorporation date and the stated duration
• The street address of its principal office in the home jurisdiction
• The South Dakota registered agent
• The purposes for which the corporation will operate in South Dakota
• A list of principal officers and directors with their business addresses
• The signature of an authorized person

The statute separately authorizes the Secretary of State to ask for additional information needed to decide whether the corporation qualifies, and the form tells the signer that knowingly false statements may be prosecuted.

South Dakota requires an original certificate of existence on one page. The form states that the application must be accompanied by it, issued by whichever home official has custody of the nonprofit's records, and item 9 asks again for the original or a document of similar import, duly authenticated. The statute does not name the certificate; the form is how the office applies the general power to request more information.

No maximum age is printed. Request it from the home office, which sets its own fee, and keep its date close to your filing day. Ordering it is up to the nonprofit or its attorney. Mainstay Filing does not place home-state orders.

Section 47-27-7 bars a certificate for a corporation whose name suggests a purpose other than the ones in its articles. If your nonprofit's name hints at a mission beyond its charter, expect a question from the office.

Agent choices

The application takes the agent in one of three forms. A noncommercial agent may be a person residing in South Dakota or a company registered in the state. A commercial agent is a business on the Secretary of State's list of such agents, and the application asks for the number the state assigned to it. A nonprofit can also name a position, such as its president, together with that officer's business office address in the state.

Two address lines are expected, a street location and a mailing address in South Dakota. A company can serve. The statute and form leave out any hours requirement.

Annual report

A foreign nonprofit with a certificate files an annual report. The Secretary of State's FAQ says it falls on the first day of the month in which the nonprofit first filed. The fee is $10, and the fee schedule lists it for both domestic and foreign nonprofit corporations. The FAQ adds that nonprofits are exempt from the extra late fee that applies to other entities, but they are still required to file the report. Failing to file it on time is a ground for revoking the certificate under section 47-27-35, along with having no registered agent or not telling the state about a new agent.

Amendments, withdrawal and no reinstatement

Under section 47-27-17, a change of name, or a wish to pursue purposes beyond those in the application, means an amended certificate of authority at $25. A change of registered agent or office is a statement that costs $10. A nonprofit that leaves South Dakota files a certificate of withdrawal application for $5. It says the nonprofit is not conducting business here, gives up its authority, and ends its agent's power to accept process. The Secretary of State then receives process for claims from the period of authorized activity.

Per the state's FAQ, a dissolved foreign entity has no reinstatement path, so the route back is a fresh application. Charitable solicitation registration and tax-exempt status are handled apart from this filing.

Sections 47-27-12 to 47-27-14 describe what follows, and a daily penalty is not among the items.

• Court access for the nonprofit's own claims is closed until a certificate is in hand. A successor or assignee is barred too, on claims arising from the nonprofit's South Dakota affairs.
• A missing certificate does not invalidate contracts or acts, and it does not stop the nonprofit from defending an action.
• The nonprofit also owes whatever fees chapter 47-28 would have levied, counted per year or partial year of unauthorized activity, along with interest and penalties for nonpayment. The attorney general brings proceedings to recover them.

Since the back fees are counted by year of unauthorized activity, registering sooner limits what the state can collect.

Nonprofit corporations sit outside Mainstay Filing's foreign qualification service, which serves only LLCs and for-profit corporations. The nonprofit, or its lawyer, files the South Dakota application. The agent is what Mainstay Filing sells to a nonprofit: $149 each year, and renewal costs the same.

List Mainstay Filing's South Dakota address on the application and it appears on the public record. Service of process received there is scanned and posted to your online account that same business day at no fee, and the state's first three letters each year are scanned free. When another agent is currently listed, Mainstay Filing files the replacement and the state's fee reaches you at cost. You can read more on the South Dakota registered agent page. Mainstay Filing does not provide legal advice.